NEW ORLEANS — After three hours of arguments, the 5th Circuit Court of Appeals appeared poised to strike down bans on same-sex couples' marriages in Louisiana, Mississippi, and Texas — joining all but one of the other appellate courts to consider the issue.
If the court upholds the lower court decisions striking down the Mississippi and Texas bans and reverses the trial court decision upholding Louisiana's ban, it could have the effect of bringing marriage equality to three Deep South states — and it could come before the Supreme Court acts on pending marriage cases.
More than halfway through the morning's arguments, an exasperated Justin Matheny, the assistant attorney general in Mississippi charged with defending the state's ban, tried to change his tune during his rebuttal arguments.
When it became clear that the three-judge panel was leaning against upholding the bans, Matheny acknowledged that the "trajectory" for marriage rights for same-sex couples is "undeniable" — but added his new argument: "it's not there yet."
Judge Patrick Higginbotham, born in Alabama almost eight decades ago and appointed to the appeals court by President Reagan more than three decades ago, spoke up. And though the older judge was hard to hear at times, he spoke loudly and clearly when he responded to Matheny: "Those words, 'Will Mississippi change its mind?' have resonated in these halls before."
Throughout the arguments, in fact, ghosts of court hearings past and court hearings future were a constant presence in the discussion.
Shortly into the arguments came the first mention of the fact that the Supreme Court was meeting at the same time as the 5th Circuit arguments in a private session to discuss, among other cases, whether to hear one or more appeals of five challenges to states' marriage bans.
Although the Supreme Court took no action on the pending requests on Friday, most court observers expect the court to take an appeal of at least one of the petitions pending for review in the coming weeks. The matter was complicated further by the fact that one of the parties before the 5th Circuit on Friday — the Louisiana case plaintiffs — already has asked the Supreme Court to review their case before the 5th Circuit even rules on the intermediate appeal.
Along with that future, the South's history with regards to federal court intervention to help enforce civil rights laws appeared to weigh heavily, particularly on Higginbotham.
At another point, when talking with the lawyer challenging Texas' ban about the timing of marriage cases, Higginbotham asked, rhetorically, "When do you challenge Plessy?" — a reference to the 1896 Supreme Court decision upholding the constitutionality of "separate but equal."
Higginbotham, along with Judge James Graves Jr., grew increasingly skeptical of the three states' arguments as the morning wore on, with Judge Jerry Smith at times interjecting to slow down one of his colleagues' lines of questioning in the courtroom.
More than 150 observers cycled through the courtroom between the three cases, with many same-sex couples traveling from each of the states involved. There were about 120 people in the room at any time, a number that included about 20 reporters and as many as 30 or 40 lawyers and court staff in the front portion of the courtroom beyond the public seating.
When the arguments began a little after 9 a.m. Central Time, Camilla Taylor, the Lambda Legal lawyer representing the Louisiana same-sex couples, went for several minutes at a time with no interruption from the judges. It was a marked contrast from other appellate marriage hearings — where questions began almost immediately and continued throughout the allotted time.
Roberta Kaplan, the Paul Weiss lawyer representing the Mississippi couples, and David McNeel Lane, the Akin Gump lawyer representing the Texas couples, faced similar extended periods where they spoke without interruption from the bench.
The states' lawyers, on the other hand, faced a nearly constant stream of skeptical questioning from Higginbotham and Graves. Even Smith, who mostly served as a counterpoint to his colleagues, occasionally raised skeptical questions.
By the time outgoing Texas Solicitor General Jonathan Mitchell took to the podium at about 11:30 a.m. Central Time, the states' central argument — that they should only need to prove that the bans advance a legitimate state interest and that these bans meet that "rational basis" test — was hitting a brick wall from Higginbotham and Graves.
When Mitchell argued that marriage is, effectively, a subsidy given to opposite-sex couples because they could have children and the state wants parents raising their natural children to be married, Graves asked whether that "justif[ies] a wholesale withholding of the right" from same-sex couples.
When Mitchell argued in support of the states' other interest — couched as a "wait-and-see" approach or allowing the "democratic process" to play out — Graves asked how long the wait should be and Higginbotham drilled down further, asking, "What is the concern that we're waiting to see?"
For his part, Smith pressed two main points, both countered repeatedly by his colleagues on the bench. First, he argued that the 1972 Supreme Court summary dismissal in Baker v. Nelson, where the court said a marriage claim brought by a same-sex couple lacked "a substantial federal question," was still binding on the appeals court. The time since that decision included a "sea change" in courts' interpretation of equal protection law, Higginbotham said at one point by way of response.
"All this talk about Baker and the '70s is making me nostalgic for my Afro and my 8-track tapes," Graves, sporting a bald-headed look these days, quipped near the end of the morning's arguments.
Second, Smith referenced a 2008 Supreme Court decision for the fact that, under rational basis review, a law can have an "imperfect fit" between the state's interest and the means of addressing that interest. Higginbotham countered that while an "imperfect fit" is OK, a law or policy with "no fit" between the interest and the law or policy would not be allowed — which is precisely what lawyers for the same-sex couples argued on Friday.
There is no set timeline for when the 5th Circuit would need to rule on the three states' bans, and it is not immediately clear whether the 5th Circuit will issue a ruling on the appeals should the Supreme Court decide to review one or more of the pending petitions before it.