As expected, the 5th Circuit U.S. Court of Appeals made no decision on same-sex marriage in Louisiana, Texas and Mississippi after hearing arguments Friday morning from attorneys on both sides of the issue in each state. Likewise, the U.S. Supreme Court has yet to reveal whether it will take issue up in its spring session, which would supercede any decision by the appeals court.
But the three 5th Circuit judges — Judge Jerry E. Smith and Patrick Higginbotham, two appointees of President Ronald Reagan, and Judge James Graves, appointed by President Barack Obama — did each seem to focus on different issues in their questions during Friday’s hearings, shedding some light on which issues they felt needed more elucidation.
‘The right to marry’
In the Louisiana hearing, Kyle Duncan of the Louisiana Attorney General’s office had barely begun his presentation when Higginbotham asked if the U.S. Constitution provided a fundamental right to marry.
“Probably,” Duncan replied, but said that same-sex unions would be a “brand new perspective” on marriage in the history of the institution. Throughout history, Duncan said, marriage has been considered a normal part of the procreation process, and the state has an interest in promoting strong families.
Higginbotham turned his attention to one of the landmark cases that outlined a right to marry, 1987’s Turner v. Safley, which struck down a Missouri prison regulation prohibiting the right of inmates to marry without permission from the warden. Because the inmates could not have sex with one another, they could not procreate — and yet the U.S. Supreme Court still felt compelled to ensure their right to marry.
Duncan acknowledged that other reasons to marry exist, but reiterated that procreation remains that the basic, classical reason for confining marriage to heterosexual couples.
“Those purposes are rooted in biology,” Duncan said.
“How are those purposes harmed by allowing same-sex couples to marry?” Judge Graves retorted.
Society also readily grants marriage to couples who cannot have children for medical reasons, or elderly couples, who no longer can procreate, noted Camilla Taylor of Lambda Legal in her rebuttal. Many married couples do procreate, but that’s not the only reason they wed — some do so for spiritual reasons, as a form of religious expression, for tax or insurance benefits, for affirmation of family commitments or for adoption rights.
“All of these purposes are equally important,” Taylor said.
Even the state’s assertion of marriage as a way to link children to their biological parents is a concession that marriage benefits children, Taylor said. Thus, denying the parents the right to marry places an unfair burden on their children as well.
The U.S. Constitution argues that one can only deny freedoms to individuals when there is a sound reason for it, Taylor said. If no legitimate governmental rationale can be found for dictating who can or cannot marry whom, she said, then the laws that do so “must fall.”
Judge Graves called Taylor’s argument “compelling” for recognizing gay marriages from other states, but asked whether the same arguments apply to forcing Louisiana to grant them as well.
“Would it be legally inconsistent to conclude that Louisiana should recognize same-sex marriages from other states, but also ban them here?” Graves asked.
Taylor said the same principle holds in either case — the government cannot infringe upon a person’s freedom to choose his or her spouse without a legitimate reason — and no legitimate reason has ever been outlined in the arguments thus far.
“In both cases, they’re completely inadequate,” Taylor said. “They make no sense.”
‘One discernible direction’
At a press conference outside the courthouse, the attorneys for same-sex marriage advocates in all three states said the hearings had been successful, expressing confidence in a “just” decision and praising the judges’ questions.
“They expressed significant discomfort with this discrimination,” Taylor said.
Gene Mills of the Louisiana Family Forum stood nearby, applauding Attorney General Buddy Caldwell’s team for “a masterful job defending Louisiana’s rationale for defining marriage as a legal relationship between one man and one woman.” He acknowledged that the purpose of marriage is more complex than to facilitate procreation, but the history of the institution has confined it to heterosexual relationships.
“I think it’s a valid question,” Mills said. “I don’t believe that the issue will be finally decided by a three-judge panel in the 5th Circuit.”
Mills also alluded to the most recent court ruling upholding Louisiana’s ban on same-sex marriage, in which Judge Martin Feldman said the democratic process is a legitimate way of allowing states to make their own decisions about marriage.
On Friday, Judge Smith had picked up that thought — noting that the Supreme Court’s most recent decision had not ended bans on gay marriage, but simply required the federal government to recognize each state’s decision. Smith noted, however, that the issue’s momentum seems clear.
“It is hard to deny the trajectory,” Smith said. “It is moving in one discernible direction.”