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."
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