IE 11 is not supported. For an optimal experience visit our site on another browser.

Marriage equality heads to 5th Circuit and Supreme Court

On Friday, the 5th Circuit hears challenges to three same-sex marriage bans in the Deep South. The U.S. Supreme Court is also meeting to discuss the issue.
Gay pride flags flying at the US Supreme Court on March 27, 2013 in Washington, DC.
Gay pride flags flying at the US Supreme Court on March 27, 2013 in Washington, DC.

NEW ORLEANS -- Derek Penton celebrated New Year's Eve DJ’ing a drag show at the Golden Lantern, a bar in New Orleans’ hip French Quarter neighborhood not far from where he met his husband, Jon Robicheaux, nearly eight years ago. But that wasn’t the official beginning of 2015 for the couple.

As Penton, 37, put it during a recent interview with msnbc, “Jan. 9 is a really good day to start the new year.” That’s when the 5th Circuit Court of Appeals hears the couple’s challenge to Louisiana’s ban on same-sex marriage, along with two others in Deep South states Texas and Mississippi. It’s also the day the U.S. Supreme Court considers, for the second time this term, whether to take up a marriage equality case and decide once and for all if gay and lesbian couples have a constitutional right to wed.

Like most same-sex couples hoping to marry or earn full spousal recognition, Penton and Robicheaux feel optimistic that the justices will soon tear down the last remaining barriers standing in their way. “If not this year, it’ll be fall or spring of next year,” Penton said.

The last time the nation’s highest court weighed the constitutionality issue -- via a challenge to California’s now-defunct ban on same-sex nuptials, known as Proposition 8 -- it was 2013, and the number of states with legalized marriage equality had not yet broken the single-digits. Today, that number stands at exactly 36, plus the District of Columbia, covering well over half the country.

The high court ended up tossing the Prop 8 case on procedural grounds without addressing the validity of state bans against same-sex nuptials. But the justices aren’t expected to dodge the question for much longer.

RELATED: Marriage equality: The headache Jeb Bush can't avoid

Though many marriage equality advocates didn’t get quite the landmark ruling they were hoping for in 2013 -- i.e. one that effectively legalized same-sex nuptials across the nation -- they did get a different one with immense significance. That year, the Supreme Court struck down a key provision of the federal Defense of Marriage Act (DOMA), which prevented the U.S. government from recognizing same-sex unions. What followed was an unprecedented wave of litigation and victories for gay and lesbian couples, with judge after judge overturning state same-sex marriage bans based on the DOMA ruling’s legal reasoning.

An important difference between 2013 and today: Four federal appeals courts have since ruled in favor of marriage equality, and one has ruled against it. Minor though it may seem, when the 6th Circuit Court of Appeals broke with other appellate courts and upheld same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, it a created what’s known as a “circuit split” that the high court would almost inevitably have to resolve. Along with requests to hear cases out of those four states bound to the 6th Circuit’s ruling, the Supreme Court on Friday is also considering a petition from Penton, Robicheaux, and other plaintiffs to hear their challenge against Louisiana’s ban before the 5th Circuit has a chance to rule.

Home to famed anti-marriage equality crusader Tony Perkins, president of the Family Research Council, and “Duck Dynasty’s” Phil Roberston, who has in the past likened gay people to thieves, drunks, and adulterers, Louisiana doesn’t exactly come across as a welcoming place for same-sex couples -- at least not to an outsider. But Penton and Robicheaux see it differently.

“New Orleans is home,” said Penton. “The thought of leaving crosses your mind especially when you get frustrated and you can’t get the little things, like being able to add Jon to my insurance policy” -- something they were just recently able to accomplish after years of trying. “But New Orleans is home,” he repeated. “I can’t imagine living anywhere else.”

The two decided to get married in Iowa, where marriage equality has been legal since 2009, after attending a friend’s wedding there three years ago. “By that point, we were pretty much married anyway,” Robicheaux said.

Still, it wasn’t until after DOMA fell that the newlyweds decided to take on Louisiana’s same-sex marriage ban. “That really wasn’t in the back of our minds,” said Penton. “Once DOMA went down, we just kind of got to thinking, we’re doing all the things that married people do but we’re not getting any of the benefits from recognition.”

WATCH: Is the GOP ready to give up fight against same-sex marriage?

Although the couple feels at home in New Orleans, they acknowledge that theirs is “a very blue city in a red state.” The more rural parts of Louisiana remain very conservative, religious, and at times, resistant to gay rights. In Baton Rouge, for example -- a city whose airport contains a chapel -- there were reports as recently as 2013 of undercover sheriff’s deputies seducing gay men and then arresting them under an invalid anti-sodomy law, which is still on the Louisiana books despite a Supreme Court ruling that found such measures unconstitutional. Last April, the Louisiana State House of Representatives voted 66 to 27 to keep the law in place.

The state also sticks out as an anomaly among marriage equality’s recent courtroom victories. In September, U.S. District Judge Martin Feldman, a President Reagan appointee, upheld Louisiana’s same-sex marriage ban, becoming the first federal judge to rule against marriage equality since DOMA’s demise. “We were shocked,” said Penton. “We thought he would go with the momentum of the rest of the district court judges.”

Louisiana voters overwhelmingly approved the state’s constitutional amendment banning same-sex nuptials, civil unions, and domestic partnerships in 2004. Embattled House Majority Whip Steve Scalise, who’s currently under fire for speaking at a white supremacist conference in 2002, was actually the lead author of the bill that put Louisiana’s same-sex marriage ban on the ballot.

Yet while those forces of a resistance are undoubtedly still at play, few people seem willing to speak openly about their opposition to marriage equality. After putting in multiple calls to the Louisiana Family Forum, a staunch defender of the state’s ban, no one from the organization ended up agreeing to an interview with msnbc.

We apologize, this video has expired.

“I don’t think they really make themselves known unless they’re pushed,” said Dr. Elaine Maccio, an associate professor at Louisiana State University’s School of Social Work. But they’re there just same. Maccio’s partner of nearly 13 years, Dr. Sherry Desselle, had a difficult time growing up gay up in Louisiana, and described feeling nervous to return when Maccio got a job at LSU in Baton Rouge.

“She loved her job,” said Desselle. “But the rest of it, the discrimination and the prejudice, were here just like I expected it to be.”

Fifty-five percent of Louisiana voters think same-sex marriage should not be allowed, a June 2014 survey by Public Policy Polling found. Additionally, the 5th Circuit has a reputation of being one of the most conservative federal appeals courts in the nation. All told, it wouldn’t be a surprise if same-sex marriage bans in the Deep South survive after Friday’s hearing. But if they do, it may not be for long. Slowly but surely, Maccio and Desselle are seeing Louisianians become more accepting. And after all, it is a new year -- it just may come a little late, like Penton predicted.