Federal appeals court weighs overturning marriage bans in three southern states

5th Circuit

Supporters, along with plaintiffs, pose outside of the 5th U.S. Circuit Court of Appeals, Friday, Jan. 9, 2015, in New Orleans. Opponents and supporters of gay marriage argued their sides before the 5th U.S. Circuit Court of Appeals, on gay marriage bans in Texas, Louisiana and Mississippi . Stacy Revere, AP

5th CircuitStacy Revere, AP

Supporters, along with plaintiffs, pose outside of the 5th U.S. Circuit Court of Appeals, Friday, Jan. 9, 2015, in New Orleans. Opponents and supporters of gay marriage argued their sides before the 5th U.S. Circuit Court of Appeals, on gay marriage bans in Texas, Louisiana and Mississippi .

NEW ORLEANS — Mississippi, Louisiana and Texas took their stands against same-sex marriage Friday before a federal appellate court with a legacy of pushing Deep South conservatives out of their comfort zones on civil rights.

Lawyers for gays and lesbians urged the judges to summon the courage of their predecessors. The 5th U.S. Circuit Court of Appeals systematically struck down racial segregation laws in the 1960s, at a time when Southern states were refusing to change and the U.S. Supreme Court seemed reluctant to lead the way.

Texas plaintiffs (from left) Vic Holmes, Mark Phariss, Nicole Dimetman and Cleopatra de Leon.Stacy Revere, AP

Texas plaintiffs (from left) Vic Holmes, Mark Phariss, Nicole Dimetman and Cleopatra de Leon.

Louisiana plaintiffs Sergio March and husband Havard Scott.Stacy Revere, AP

Louisiana plaintiffs Sergio March and husband Havard Scott.

“This board has a proud tradition in that regard,” said Roberta Kaplan, representing gay and lesbian couples challenging Mississippi’s marriage ban.

“Times have blinded this country about African-Americans, times have blinded this country about women and times have blinded this country about gay people,” she said.

Same-sex marriage is now legal in 36 states and the District of Columbia, where 70 percent of the nation’s population lives.

But gay and lesbian marriage rights are new in terms of recorded history, and these Southern states must be allowed to protect their citizens from unforeseen consequences even if the rest of the country goes a different direction, their lawyers argued.

“The law is moving, but it is not there yet,” said attorney Justin Matheny, urging a three-judge panel to give Mississippi more time to consider whether it’s ready for change.

Two of the judges – James Graves and Patrick Higginbotham – frequently interrupted and challenged the states’ arguments.

Graves asked how many more years Texans would need before deciding whether gay marriage is acceptable or not – 20? Five?

“The people of Texas have the right to proceed with caution and see how this social experiment plays out,” Texas Solicitor General Jonathan Mitchell responded.

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Higginbotham suggested that similar arguments were made in the 1960s, when the 5th Circuit heard cases from Texas to Florida, repeatedly overcoming state support for laws that maintained a racially discriminatory society.

“Those words, ‘will Mississippi change its mind?’ have resonated in this hall before,” Higginbotham said.

But Judge Jerry Smith, known as a social conservative, challenged Kaplan. He noted that the Supreme Court already looked at gay marriage in 1972, and found no reason to allow it.

“It was a different world” back then, she responded – one where gay sex was outlawed. Since then, there has been a sea change in legal rulings and in societal attitudes, she said.

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