2015-JAN-09: U.S. 5th Circuit Court of Appeals held a hearing in the DeLeon case:
The 5th Circuit Court has jurisdiction over three states: Louisiana, Mississippi and Texas. This hearing covered same-sex marriage bans in all three states:
The three lawsuits could be consolidated because they all dealt with the same topics:
Whether same-sex couples can marry in the state where they live.
Whether same-sex marriages solemnized elsewhere will be recognized in Louisiana, Mississippi, and Texas.
A three-judge panel of the 5th Circuit Court held hearings on JAN-09.
At the time of the hearing, same-sex couples were able to marry in the District of Columbia, and in 37 out of 50 states. At least one lawsuit to nullify a state SSM ban is active in each of the 13 states that still prohibit same-sex marriage. The states with bans lie geographically in three groups:
one north-south column of three states in the mid-west including North Dakota, South Dakota, and Nebraska;
one north-south column of four states from Michigan to Tennessee.
one east-west row of six states from Texas to Georgia.
The hearing lasted for three hours. Two of the three judges on the panel, James Graves and Patrick Higginbotham asked many questions that were consistently skeptical of the states' bans. They asked relatively few questions of the plaintiffs' lawyers. The lead attorney for the Louisiana defendants was Kyle Duncan. He was formerly the solicitor general for Louisiana and more recently is from the Becket Fund for Religious Liberty. He based his defense of the marriage bans on two principles:
States have the right to define eligibility for marriage within their boundaries without interference from the federal government or Constitution. He argued that the main purpose of marriage is procreation, and that same-sex couples, by themselves, cannot conceive. Therefore, they should be prohibited from marrying.
Judge Higginbotham asked why the procreation argument should be of paramount importance while the states allow incarcerated persons to marry a person of the opposite gender, even while serving a life sentence without the possibility of procreating.
Same-sex marriage is a new development -- a "novel institution." Voters and legislators in the three states need more time to understand it and detect any adverse affects it might have on the economy and culture. Only a decade has passed since Massachusetts became the first state to legalize marriage for same-sex couples. Duncan argued that the three states:
"... should not have to go the way of other states that are involved in this social experiment."
Judge Graves commented:
"So your argument is... so since we don't know, we should fear the unknown and therefore we should ban it?"
It is important to realize that Massachusetts continues to have the lowest divorce rate of any state in the U.S. Thus, legalizing marriage for same-sex couples has not had a major adverse affect on opposite-sex marriages in that state.
The lead attorney for plaintiffs, Camilla Taylor from the LGBT rights group Lambda Legal, argued in court:
"There's no dispute in this case the marriage ban harms lesbian and gay couples. But also they're deprived of dignity in and equality in a way that harms people to their very cores."
After the hearing, she commented:
"We feel very optimistic coming out of court today. There seemed to be some significant discomfort [among the three-judge panel] with the unequal treatment same-sex couples and their children faced in all three states."
Stephen Griffin, a professor at Tulane Law School who specializes in constitutional law, observed the hearing. He said that judges:
"Higginbotham and Graves seemed like they're ready to strike ... [the same-sex marriage bans] down. It's not easy to predict what a court will do, but that really seemed like a 2-1 panel.
Gene Mills of the Louisiana Family Forum strongly opposes marriage equality, He expects that the 5th Circuit Court will uphold the same-sex marriage bans in the three states. He feels that the ultimate decision should be left up to the people of the states. He said:
"If you take that choice away from the people, you remove their opportunity to [sic] under the deliberative process and to weigh in. When that process is followed, that's when America generally accepts the opinion and we move forward." 2
Marriage has been extensively redefined four times in the history of the United States:
During the 1860's after the civil war when the freed slaves were able to marry freely for the first time.
During the early years of the 20th century when a few state laws that banned marriage among deaf couples were repealed.
In 1967 when lawsuit was decided by the U.S. Supreme Court that is very similar to the present SSM case. In its ruling for Loving v. Virginia, the high court overturned miscegenation laws in 16 contiguous states located in the south-eastern United States. This legalized interracial marriages throughout the U.S. If the high court had not acted in 1967, decades would probably have passed before all 16 states would have repealed their bans on their own. In fact, the miscegenation laws remained on the books of many states for decades even though they had been nullified by the Supreme Court. Alabama was the last state to repeal their ban in the year 2000, a third of a century after the Loving v. Virginia ruling.
If same-sex couples are to wait for the legislative process in Louisiana, Mississippi, and Texas to eventually legalize their marriages, they could continue to be regarded as "legal strangers" by their state government into the 2040s or later before their their marriages are recognized and and they and their children receive the marriage status, protections, and benefits that opposite-sex couples automatically receive. That is a really long time to wait.
Fortunately for these couples, the U.S. Supreme Court accepted an appeal in the consolidated case Obergefell v. Hodges which involves marriage equality in Kentucky, Michigan, Ohio, & Tennessee. The court is expected to issue its ruling during 2015-June or July which many observers believe will legalize same-sex marriages across the entire United States, including Louisiana, Mississippi, and Texas.
Comments by participants and observers after the hearing: