Ellington

NEW ORLEANS—In a small, gothic New Orleans courtroom that could have been a set from the TV series "Game of Thrones," judges and attorneys discussed the legality of marriage equality in the Deep South. Four illuminating orbs hung from either side of the walls, suspended by the snake sculptures wrapped around their bases.

The hearing took place Friday, Jan. 9, inside the John Minor Wisdom U.S. Court of Appeals building, which is named after the notable civil rights judge whose court became crucial in advancing the civil rights of African Americans in the 1950s and '60s.

Roberta Kaplan, the attorney for Mississippi's same-sex marriage case, said she hopes the judges rule with Wisdom in mind. She said after the hearing that she believes they will render a just ruling.

The 5th U.S. Circuit Court of Appeals' hearing on same-sex marriage included three cases from three different states—Mississippi, Louisiana and Texas. In each case, the state's marriage laws prevented same-sex couples from getting married or having their marriages recognized in their home state. The 5th Circuit has the last word on cases until the U.S. Supreme Court addresses the issue.

In eight pews, about 100 observers—30 of which were reporters—listened carefully to each attorney's arguments and each judge's questions. Sitting from left to right at the front of the room were two President Ronald Reagan appointees, Judge Patrick Higginbotham and Judge Jerry Smith, and a President Barack Obama appointee, Judge James Graves Jr.

Attorneys Roberta Kaplan, Camilla Taylor and Neel Lane, representing same-sex couples in Mississippi, Louisiana and Texas, respectively, argued that state bans on same-sex marriage violate the equal protection and due-process clauses of the 14th Amendment.

During the rebuttal from Mississippi Special Assistant Attorney General Justin Matheny, Judge Jerry Smith told the courtroom that the direction marriage equality is moving in the United States is undeniable. Smith engaged in the most conservative line of questioning throughout the hearing.

Matheny argued that same-sex marriage is a social issue, not a constitutional one, which is why the 14th Amendment does not apply and the state should decide for itself when to allow same-sex couples to marry.

Judge Higginbotham, who questioned the state most rigorously, replied, "These words: 'When will Mississippi change its mind?' resonated in these halls before."

The Arguments

In three hours of testimony, attorneys for marriage equality made some form of the following arguments to the judges:

• State same-sex marriage bans are modeled after the federal Defense of Marriage Act, which the U.S. Supreme Court struck down in 2013.
• Gay and lesbian people and couples have dignity that is equal to that of straight people and couples.
• Denying same-sex couples the right to marry is a form of discrimination.
• Same-sex marriage bans are the result of some level of misunderstanding and moral disapproval of gay and lesbian citizens.
• Refusing same-sex couples the right to marry is not related to the government interest of promoting responsible procreation. Conversely, attorneys representing the states of Mississippi, Louisiana and Texas made the following arguments:
• In the case that struck down the Defense of Marriage Act—United States v. Windsor, in which Kaplan also argued on behalf of same-sex couples—U.S. Supreme Court justices made it clear that the opinion only applied to that case and not to cases of state marriage bans.
• States should be able to determine marriage laws for themselves through their democratic process.
• The court has not yet elevated discrimination based on sexual orientation under intermediate scrutiny, with the same protections against discrimination based on gender, thus, only rational basis review applies.
• In 1972 the U.S. Supreme Court refused to review a 1971 Minnesota Supreme Court ruling that same-sex marriage bans are constitutional. This is the federal precedent that currently stands in cases on same-sex marriage bans.
• The state only has to prove that the marriage law serves a legitimate government purpose, and that purpose is to promote responsible procreation.

The arguments did not differ between the cases—because "the Constitution is the Constitution," Kaplan said after the hearing.

An Illogical Purpose

Attorneys for the states—Matheny of Mississippi, Jonathan Mitchell of Texas and Kyle Duncan of Louisiana—argued that same-sex marriage bans promote responsible procreation and keep children linked to their biological parents.

When Matheny told judges that the state's law incentivizes sex between straight couples, Higginbotham replied, "You don't need to have an incentive to have sex."

Higginbotham also probed Texas state attorney Mitchell, who argued after Matheny, on the rationality of the ban. Mitchell tried his best to explain that the state's same-sex marriage law is designed to further the state interest of incentivizing sex between couples who can procreate. Higginbotham appeared to become more and more flustered by the state's argument as the oral arguments proceeded.

"How does it do that?" Higginbotham asked Mitchell. Higginbotham then said that the state is suggesting that giving marriage benefits to same-sex couples takes the incentive to marry and procreate away from opposite-sex couples—an argument he said uses faulty logic.

"We're not arguing that," Mitchell said.

"Of course you are," Higginbotham responded.

Smith interrupted the discussion to ask a question that could be crucial in the decision of the case: "So we don't have to agree with the rationale to uphold (the law)."

No one in the courtroom denied that promoting responsible procreation and family values is a legitimate state interest, but attorneys for marriage equality argued that there is no link between denying same-sex marriage and that purpose.

Why, they posited, do the states then allow couples who do not plan to reproduce to marry?

Matheny admitted that the law and the interest do not fit perfectly, but said that the law does not have to perfectly address its purpose to be upheld. This explains, he said, why the state would not have to deny marriage to infertile couples or couples over child-bearing age.

Lane argued that the problem is not that the law is an imperfect fit with its purpose, but that it does not fit at all—what Kaplan called the "absence of any rational link." Taylor told the judges that the court does not have to uphold a state law if the explanation for the law is illogical.

How Long the Wait?

Another hotly contested argument in the case was that states should be allowed to "wait and see," legalizing same-sex marriage through its own democratic process. The states want the ability to see how legalized same-sex marriage will work for other states.

The state isn't "banning anything," Louisiana state attorney Duncan said, adding that it's just not taking part in a "social experiment."

But as Kaplan pointed out, same-sex marriage has been legal in Massachusetts for 10 years, and the state has seen no negative effects.

Graves asked the rhetorical question: How long would the state would need—10, 20, 30 years?

The states also argued that Baker v. Nelson is the most recent Supreme Court precedent on the question of state same-sex marriage bans. Baker was a 1971 Minnesota Supreme Court ruling that same-sex marriage bans do not violate the 14th Amendment—a decision the U.S. Supreme Court dismissed in 1972.

Marriage-equality attorneys retorted that the 1970s were a different time, a time in which homosexuality was criminal in many states. "Times have blinded this country," Kaplan said.

Havard Scott, who, along with his partner, are plaintiffs in the Louisiana case, told reporters, "If we don't get what we're seeking here, we'll get it from the Supreme Court."

It will be up to the U.S. Supreme Court—which rejected a Louisiana same-sex marriage appeal on Friday, but will discuss four more this upcoming Friday—to settle the issue once and for all.