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Gay Marriage Bans Face 5th Circuit Reckoning

NEW ORLEANS (CN) - Louisiana, Mississippi and Texas argued before a packed house at the 5th Circuit on Friday in favor of incentivizing procreation, while their opponents spoke said children of same-sex couples should not have to grow up being treated as "second-class citizens."

Attorneys representing gays and lesbians framed the issue of same-sex marriage in a way that unmistakably linked it to the slow and painful trajectory of civil rights laws in America.

Camilla Taylor, a Lambda Legal Defense Fund attorney representing seven couples challenging Louisiana's ban, said the ban has "simply no benefit whatsoever," and that it "humiliates" children of same-sex couples that their parents cannot marry.

"They are told there is something wrong with them and their families," Taylor said, adding that the government has no right participating in something that makes a large portion of the population feel inferior.

Roberta Kaplan, on behalf of gay and lesbian couples in Mississippi, said, "Many thousands of gay people in Mississippi are being treated as second-class citizens."

But she said logic and understanding will effect change.

"Once you accept that gay people have equal dignity," then any attempt to treat them as lesser citizens falls apart, said Kaplan.

Kaplan said Mississippi's marriage laws "essentially" exclude same-sex marriage and stigmatize children in households with same-sex parents.

Twenty-nine percent of households in Mississippi - the highest ratio of any state in the nation - are same-sex couples with children, Kaplan said.

Kaplan told the three-judge panel that the world today is "very different" than in 1972 when the U.S. Supreme Court first looked at gay marriage and decided against it.

But Judge Jerry Smith, a social conservative who was nominated to the 5th Circuit by President Ronald Reagan, challenged Kaplan on the issue.

"Why did the Supreme Court say (in 1972): 'Nothing to see here, no problem, move along?'" Smith asked.

"There has been a sea change," replied Kaplan.

"Times have blinded people about African-Americans, times have blinded people about women, and times have blinded people about gay people," Kaplan said.

She was quoting Justice Anthony Kennedy, who wrote the majority opinion in the landmark 2013 Supreme Court ruling on same-sex marriage, United States v. Windsor. The ruling was cited many times Friday by both sides during oral arguments.

Same-sex marriage is now legal in 36 states, where 70 percent of the U.S. population lives.

But gay marriage rights have been around only for 10 or 15 years, making gay marriages and households a "social experiment" the Southern states should not have to embrace until the full effects are understood, attorneys for the states argued.

When Justin Matheny, on behalf of Mississippi, took over arguments, he emphasized the importance of protecting procreation through subsidies and incentives.

"You don't need an incentive to have sex!" Judge Patrick Higginbotham said, to a roar of laughter from the gallery.

Higginbotham is a darling of 5th Circuit for his witty remarks, but it was difficult to hear the 77-year-old judge Friday. He sat reclined in his chair for much of the arguments. When he spoke, everyone in the crowded room strained forward to hear.

Judge Smith asked Matheny if "the trajectory" of same-sex marriage was not "undeniable."


Judge Patrick Higginbotham commented that "when you're thinking about the unconstitutionality of sodomy" it's hard to think about the constitutionality of protecting gay marriage, which, again, brought laughter.

"Does the state have to change" just because this is the trajectory? Matheny asked, and replied to his own question with a firm negative.

He said same-sex marriage is a social issue, not a constitutional rights issue, and that's why it's OK for states to decide for themselves about the ban.

But Higginbotham was skeptical.

"Those words, that Mississippi won't change its mind, have resonated in this hall before," he said.

Jonathan Mitchell, on behalf of Texas, said marriage can be understood to represent a couple of different things: It can be a celebration of love and commitment, or it can serve the function of preventing unwed pregnancies. Texas, said Mitchell, views marriage as a way to prevent unwed pregnancies.

Higginbotham interrupted: "Are you saying that same-sex marriage won't reduce the number of children born out of wedlock?"

"No," Mitchell said, and spoke again of protecting procreation.

Judge James Graves, an Obama appointee, interrupted: "So you're saying marriage is a commodity ... it's not a right?"

"No," Mitchell said, "that's not what I'm saying, but there are ... subsidies."

"So, there are benefits that come with marriage," Graves asked.

"All we have to show," said Mitchell, "it that same-sex marriage will not advance the state's interest. ... It's not that (couples) don't have the right to live together, it's that they have to show that they deserve the subsidy."

Judge Smith added: "In an area that's always been reserved for the states."

"Correct," it's the state's "prerogative" where subsidies go, said Mitchell. "Our contention is there is a scientific debate on the subject."

"Is it an illness?" Higginbotham asked, sounding irritated.

"No," said Mitchell. "... One other question is: Does sexual orientation have any relevance to one's ability to contribute to society? ... That's not really the question. It's this: Someone who is going to marry someone of the same sex is not likely to produce offspring, and if they aren't producing offspring, they aren't contributing to the state interest in reducing the number of unplanned out-of-wedlock births that put a strain on the state's resources."

Mitchell added: "We are not saying that same-sex marriage will undermine opposite sex marriage."

"Of course you are!" said Higginbotham.

"Same-sex marriage hasn't been around long enough for anyone to know what the outcome will be," said Mitchell. "It's a social experiment."

Mitchell added that "just getting married for love could undermine" the purpose of getting married to prevent unwed pregnancies, though he supposed that in the end same-sex marriage could also turn out to be "not just not harmful, but actually beneficial," though he said the people of Texas "want to wait and see" what happens to other states before deciding, and that would be the "rational basis - that it is 'rational' to wait and see."

Neel Lane Jr., appearing on behalf of a Texas lesbian couple who are expecting a child in March and want to put a second name on the child's birth certificate, said that "everybody wins" if the same-sex marriage ban is overturned.

Judge Smith asked Lane about the criminality of gay sex.

In 1973, when gay marriage was first taken up with the Supreme Court, gay sex was against the law in many states.

"It was a different world then and it's changed now," Lane replied.

"You can be blinded by your age, or by the age you're in," said Lane, and he spoke of the need for a "radical redefinition of marriage," asking if marriage is good for children, then why deny it to same-sex couples?

"Everyone knows this law is really about the moral condemnation of same-sex couples," Lane said, "but since they can't just come out and say that, they attempt to redefine marriage."

He said the Supreme Court's Windsor ruling recognizes the effect of the same-sex marriage ban on children.

"This is about the welfare of American children," Lane said.

He said that Texas "simply cannot explain how preventing same-sex couples from marrying will protect children."

Outside the courthouse afterward, same-sex couples embraced for photos before a well-attended news conference.

Peaceful demonstrators carried signs saying "Love will win the 5th Circuit" and "It's time for marriage." Despite the arctic temperature, the mood was celebratory.

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