Will 5th Circuit Overturn Same-Sex Marriage Bans?

Will 5th Circuit Overturn Same-Sex Marriage Bans? January 12, 2015

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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