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5th Circuit looks poised to strike down same-sex marriage bans

Ready or not, the Deep South may want to start preparing for marriage equality.
Louisiana plaintiffs, Havard Scott, left, and Sergio March embrace outside of the 5th U.S. Circuit Court of Appeals, Jan. 9, 2015, in New Orleans, La. (Photo by Stacy Revere/AP)
Louisiana plaintiffs, Havard Scott, left, and Sergio March embrace outside of the 5th U.S. Circuit Court of Appeals, Jan. 9, 2015, in New Orleans, La.

NEW ORLEANS  Ready or not, the Deep South may want to start preparing for marriage equality.

A three-judge panel of the conservative 5th Circuit Court of Appeals heard oral arguments Friday in three separate challenges to same-sex marriage bans in Southern states: Louisiana, Mississippi, and Texas. The three-hour hearing at times turned comical as two of the judges grew increasingly skeptical of the state attorneys’ arguments — which were based on everything from federalism, to a 42-year-old precedent, to a government interest in channeling procreation.

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When the attorney representing Mississippi argued that the state’s marriage law encourages people to have families, Judge Patrick Higginbotham, an appointee of President Ronald Reagan responded, "You don’t need an incentive to have sex.” 

Laughter broke out as Judge James Graves Jr., a President Obama appointee, concurred: “I wouldn’t disagree with that," he said.

Higginbotham was widely viewed as the swing vote going into Friday’s hearing, with Graves expected to be firmly in the marriage equality camp, and Judge Jerry Smith, another Reagan appointee, to be solidly opposed. Smith largely fulfilled that role, repeatedly bringing arguments back to Baker v. Nelson, a 1972 case that determined laws limiting marriage to opposite-sex couples to be constitutional.

“The world was a very different place in 1972,” pushed back Roberta Kaplan, an attorney representing the Mississippi plaintiffs. Kaplan successfully argued against the Defense of Marriage Act (DOMA) — a law that prevented the federal government from recognizing same-sex marriages — in the 2013 landmark gay rights case United States. v. Windsor.

“When Baker was decided, gay people had to live in the closet,” she continued. “Times can blind our eyes.”

Regardless, argued Smith and state attorneys, Baker remains the most recent Supreme Court case addressing the issue of whether gay and lesbian couples have a constitutional right to wed.

“All this talk about Baker and the 1970s is making me nostalgic for my Afro and my eight-track,” Graves joked.

Higginbotham, however, was far less sympathetic to the states’ arguments than expected. At times, it was difficult to hear what the 77-year-old judge was saying because he so frequently leaned back in his chair away from the microphone and rubbed his face, as though watching some kind of entertaining show or, perhaps, getting tired of it. When he did speak up, it was usually to poke holes in the states’ arguments. For example, when Jonathan F. Mitchell, the attorney pleading the case for Texas, told the court that the state’s marriage law served to encourage new offspring and reduce unplanned pregnancies, Higginbotham asked if he was implying that extending marriage to same-sex couples would someone reduce the number of offspring or increase the incidence of out-of-wedlock births.

“We’re not arguing that,” Mitchell said.

“Of course you are!” said Higginbotham.

The hearing coincided with a Supreme Court conference in D.C., where the justices discussed whether to take up marriage equality cases for states in the jurisdiction of the 6th Circuit Court of Appeals, the only appellate court to have so far upheld bans on same-sex nuptials. No word yet on high court’s decision.

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Outside the New Orleans courthouse, plaintiffs and their attorneys were in a celebratory mood. One woman, Jennifer Pierce, even got down on one knee and proposed to her wife, Jena Pierce, foreseeing that their marriage would soon be recognized in Mississippi.

“Today was a really great day for same-sex couples and their children,” said Camilla Taylor, director of the Marriage Project at Lambda Legal. Taylor argued on behalf of the plaintiffs in Louisiana, the only state to have seen its same-sex marriage ban survive at the federal district level. Derek Penton, one of her clients, told msnbc that he was “so surprised” by how Friday’s hearing went.

“Once it started, I was like, ‘We’re OK,'” he said.

Opponents to marriage equality, however, sensed some apprehension in the judges’ willingness to overturn voter-approved laws.

“We saw a very big struggle between the role of the judiciary and the role of the people,” said Jonathan M. Saenz, president of Texas Values, to msnbc. “I think we’re even seeing some pause by the judges and whether or not they feel comfortable being the ones to make the decision.”

Still, confidence and optimism on part of the plaintiffs ruled the day.

“The arguments that they were positing for all three of the states, they were the same arguments that they’ve always been, the same arguments that have been refuted time and again,” said Vic Holmes, one of the plaintiffs in Texas’s suit. “What we heard today was that once again, these same arguments don’t stand up.”