Will 5th Circuit Overturn Same-Sex Marriage Bans?

Last week a three-judge panel of the 5th Circuit Court of Appeals heard oral argument in three suits challenging state bans on same-sex marriage (Texas, Louisiana and Mississippi). Based on the questions asked by the judges, advocates of marriage equality were encouraged that they will rule to strike down those bans.

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.

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…

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 district courts struck down those bans in Mississippi and Louisiana, but upheld the law in Texas. It was widely assumed that the 5th Circuit, perhaps the single most conservative appeals court in the country, would be the one most likely to uphold such laws. The 6th Circuit already upheld bans in Michigan, Ohio and Kentucky and the Supreme Court will announce on Monday whether they will hear appeals of those cases.

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  • marcus

    “…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.”

    Of course we are Your Honor! Once the homosexuals have had their icky little fingers all over Our Holey Matrimony ™ no one else will want to have anything to do with it!

  • whheydt

    I thought it was Louisiana where the district judge upheld the state ant-SSM law…and that ruling was questionable, being based on there being no matters of fact in dispute (when there quite evidently were).

  • gshelley

    It’s hard to keep track of which bad argument was used in which case, but wasn’t it Texas where in the initial trial, they claimed that by making marriage open to all couples, it would seem less exclusive and therefore less attractive?

    how reasonable is the Baker v Nelson precedent? I recall that the 5th circuit relied heavily on it (with only a token effort at pretending the rational basis standard had been met), but how can it hold when the Supreme Court has also refused to hear cases that found SSM to be unconstitutional? I don’t get how they can say “forty years ago, the court refused to hear a case that supported a state’s right to outlaw SSM, so even though they have now refused to hear more cases that disagree, that first precedent is the important one” (which isn’t to say it’s invalid, there may be som well accepted legal principle involved here)

  • John Pieret

    the Supreme Court will announce on Monday whether they will hear appeals of those cases

    According to SCOTUSblog, they kicked consideration of the 6th Circuit’s cases over until their next conference this coming Friday, Jan. 16th.

  • http://artk.typepad.com ArtK

    @gshelley

    I think that the “well accepted legal principle” is the one that reads “whatever precedent gives us the result we want.”

  • eric

    First thought: that article certainly doesn’t read like they will uphold the bans. The person they identify as the swing vote is largely attacking the state’s case (at least in the parts they quote).

    Second thought: since the 6th already upheld bans, does the 5th’s decision matter in the long run? SCOTUS already has a break between different circuits. Oh, I suppose if the most conservative circuit found the bans unconsitutional, that might in theory have some weight with SCOTUS. But in practice, does anyone think Scalia, Thomas, or Alito will change their vote if the 5th supports SSM? I don’t. I think that as long as it happens before Ginsberg retires/dies, the only real question is whether Roberts will join the (otherwise) 5 person liberal majority to protect his ‘legacy.’

  • John Pieret

    gshelley:

    I don’t get how they can say “forty years ago, the court refused to hear a case that supported a state’s right to outlaw SSM, so even though they have now refused to hear more cases that disagree, that first precedent is the important one” (which isn’t to say it’s invalid, there may be som well accepted legal principle involved here)

    Well, there (sorta) is. Baker was not just a denial of cert., as the more recent cases were. In Baker, SCOTUS dismissed the appeal, albeit in a one sentence decision. Under court rules, a summary dismissal counts as a binding (but not particularly strong) precedent, while a denial of cert. has no value as precedent, because the court could take that action for many reasons, which are not necessarily related to the merits of the appeal.

  • tbell

    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.

    Then why bring it up?

  • U Frood

    I do love the suggestion that heterosexuals need incentives to children.

  • lou Jost

    How can letting more people get married reduce the birth rate?

  • eric

    @10: Is that a serious question? The conservative logic seems pretty clear. They presume being gay is a choice. From there they reason that if a gay person isn’t allowed same sex marriage, they will get straight-married and have kids like a standard heterosexual. As Ed and others have commented many times, they seem to think that the power of teh ghey is so strong that simply allowing them to marry will cause large percentages of the population to switch orientation.

  • http://sidhe3141.blogspot.com JamesY2

    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.”

    Why hasn’t Modus responded to this? Something like “Of course you need an incentive to have sex. That’s why things are so cold between me and my wife.”