NEW ORLEANS (BP) — The U.S. Court of Appeals 5th Circuit heard challenges to marriage laws in Texas, Louisiana, and Mississippi, Jan. 9. The similarity between the contested laws — defining marriage as a union only between a man and a woman and the prohibition against recognizing same-sex marriages performed in other states — led the appellate court to consider the cases together. Each case was heard separately, but a common thread of questioning wove its way through the hearings.
“The laws that are at issue are naturally the same, and the 14th Amendment challenges to these laws are identical,” Justin Matheny, attorney for the State of Mississippi told the court in his opening arguments. “The question is, ‘Does the 14th Amendment prohibit the state from defining marriage as between a man and a woman?'”
Attorneys for the plaintiffs — same-sex couples seeking to be married or have their out-of-state marriages recognized in the three states — argued the same amendment protects homosexuals as a “suspect class” of citizen countermanding the state’s ability to discriminate against them in matters of marriage law.
Gay and lesbian couples contend there is no distinction between same-sex and opposite-sex marriage relationships. But Jonathan Mitchell, Texas solicitor general, called that a “value judgment” not rising to the level of equal protection.
“Equal protection of the laws does not require a state to confer equal treatment on things that are different,” he said, noting the differences in the contested marriage relationships are rooted in biological reality.
“The 14th Amendment does not say that states must convey equal treatment on whatever federal judges think should be treated equally.”
Spectators lined up outside the New Orleans court house before proceedings began, vying for a seat in the chamber. Overflow seating with a remote audio feed from the courtroom was established to accommodate the anticipated large media and public interest in the case. Judges Patrick Higginbotham and Jerry Smith — both President Ronald Reagan nominees — and James Graves — a President Barack Obama appointee — were seated to hear Campaign for Southern Equality v. Phil Brya (Miss.), Robecheaux v. Caldwell (La.), and De Leon v. Perry (Tex.).
Attorneys for the states argued legal precedent gives states the authority to define marriage, repeatedly citing Baker v. Nelson, the 1971 Minnesota Supreme Court ruling denying homosexual couples had a right to marry. A year later the U.S. Supreme Court upheld that case and the ruling still stands.
But plaintiffs’ attorneys argued state sodomy laws prejudiced jurists against homosexuals seeking marriage licenses 42 years ago and that time, public opinion and the trajectory of court decisions affirming a fundamental right of marriage annuls Baker v. Nelson.
“It was a different world, and it’s changed now,” Daniel Lane, attorney for the Texas plaintiffs in De Leon v. Perry, told the judges.
But Judge Higginbotham disagreed.
“No. There has been no other Supreme Court case even nearly on point on that specific question, which was whether it’s constitutional for a state to limit marriages to heterosexual couples. The court will let us know when it’s changed its mind,” he told Lane.
Higginbotham often queried attorneys about the state’s authority to define marriage.
Attorneys on both sides frequently cited the 2013 decision in United States v. Windsor to advance their case. The New York lawsuit challenged Section 3 of the 1996 Defense of Marriage Act, which stated the federal government would only recognize marriages between a man and a woman. The provision was struck down, and that ruling was upheld by the U.S. Supreme Court.
States’ attorneys argued the Supreme Court decision did not define marriage and left that prerogative to the states.
And although plaintiffs’ attorneys did not dispute that fact, Roberta Kaplan, attorney for the Mississippi plaintiffs, said, “The logic of Windsor says that gay people have a dignity that’s equal to everyone else. Once you accept that gay people are equal to everyone else, then all these reasons make no sense.”
Promoting procreation and the raising of children within marriage was the salient argument presented by states’ attorneys. Laws and benefits proffered by the state are often inherently discriminatory, Mitchell said. Legal precedent allows for the imperfection of laws as a means to an end that advances state interests; in this circumstance the raising of children by their biological mother and father which research indicates is the best environment for producing healthy productive children.
But plaintiffs argued gay and lesbian couples can effectively raise children and charged the marriage laws were grounded in animus.
“If the rationale is not logical, it only leaves animus,” Kaplan said. “It is not necessary to show overt hatred in order to show constitutionally admissible animus.”
The marriage laws represent moral disapproval of homosexuality, the plaintiffs’ attorneys argued.
But Mitchell argued a distinction between groups of people does not equate to animus-rooted discrimination. If it were so plaintiff’s attorneys would have to argue that “the common law background, which predates these enactments and has existed since time immemorial, was also rooted in animus,” he said.
Attorneys for the states recognized the societal shift in its consideration of same-sex marriage but noted it has only been legally recognized anywhere in the world for just over 10 years. Because of that, they asked for judges to take a “wait and see” approach before dismantling the traditional institution of marriage.
Mitchell, who argued the Texas case last, closed by reminding the judges that Texas’s marriage law does not conflict with any holding of the Supreme Court nor does it contradict constitutional language.
“The court must uphold the law regardless of how much a judge disagrees with them as a matter of policy,” Mitchell concluded.
As state laws defining marriage as a union between a man and woman are struck down at an overwhelming rate by federal and appellate courts, advocates on both sides of the same-sex marriage debate anxiously await as the 5th Circuit Court considers the arguments. A ruling is not expected before April.