Here comes news from the far-end of the gay-marriage legal long tail: Two of three judges on a U.S. Fifth Circuit Court of Appeals panel, according to media reports just emerging, seemed skeptical this morning of arguments defending gay marriage bans in deep (deep!) red Louisiana, Mississippi and Texas today. There’s no way to tell how the panel will rule, of course, but the hearing seems to have fit a pattern established in circuit courts across the country over the last ten months.
It goes roughly like this: Judges appointed by Democratic and Republican presidents listen to the arguments. Most of the hard questions fall to the states to defend their bans. The majority of judges on the panels listening to the arguments being made by states attorneys put pained expressions on their faces. They ask about the evidence alleged to support claims like the one that gay marriage is bad for children or the one about how it poses a threat to straight marriage or the one about how marriage is all about procreation or the one about how the government is obliged to promote “gender diversity” and gay marriages aren’t “gender diverse” so must be discouraged. Even now, none of the judges exactly laugh off these arguments but their open mouths and their shuffling through the pages of reports purporting to support them have come to have an equivalent deadpan effect. The judges then months later issue well-argued rulings against the bans, citing U.S. Supreme Court precedent and often too an exasperated but damning dissent written by anti-gay marriage Justice Antonin Scalia, who was afraid the high court had established precedent that would doom marriage bans. He was right. The pattern in the circuit courts has seen state bans on gay marriage swept away in bunches as unconstitutional violations of equal rights.
Conservative Mormon Utah’s ban was the first to fall. Its effective death came at the hand of a Tenth Circuit panel here in Denver.
In New Orleans, the Fifth Circuit panel is comprised of Obama appointee Judge James Graves, Reagan appointees Judge Jerry Smith and Judge Patrick Higgenbotham.
Higgenbotham is reportedly the one to watch and he asked the state attorneys some tough questions. MSNBC’s Emma Margolin tweeted that Higginbotham “seemed not only skeptical of Louisiana’s defense of its same-sex marriage ban but amused by it.”
“You don’t need an incentive to have sex,” Higgenbotham said at one point, according to Margolin. He was responding to a Mississippi attorney’s assertion that gay marriage bans are beneficial for the way they might encourage procreation.
The bans in Mississippi and Texas were struck down in earlier court proceedings and the states attorneys appealed. Louisiana’s ban was upheld and plaintiffs appealed.[Photo of Fifth Circuit plaintiffs outside the courthouse by Emma Margolin.]