Gay rights supporters were encouraged by arguments before a panel of federal appellate court judges Friday in three state gay marriage cases.
Two of the judges in the 5th U.S. Circuit Court of Appeals in New Orleans appeared to be skeptical of arguments by attorneys for Louisiana, Mississippi and Texas in defense of their laws defining marriage as the union of a man and a woman, while a third judge was more skeptical of the gay marriage plaintiffs.
A ruling from 5th Circuit Judges James E. Graves Jr., Jerry E. Smith and Patrick Higginbotham is expected later this year.
The plaintiffs include Cleopatra De Leon and Nicole Dimetman of Texas, Jon Robicheaux and Derek Pinton of Louisiana and Rebecca Bickett and Andrea Sanders of Mississippi.
Reporters were allowed in the courtroom but forbidden any electronic media inside — instead tweeting and filing reports after each session.
In the Louisiana case, attorney Kyle Duncan, special counsel for the Louisiana attorney general’s office, told the court that same-sex marriage is “a novel perception” in human history, and the United States has only 10 years of experience with it.
In light of unforeseen consequences due to such a social change, states can and should be able to decide whether to maintain their traditional marriage laws, Mr. Duncan said, according to multiple reports.
The plaintiffs’ attorney, Camilla Taylor of the Lambda Legal Defense Fund, countered that “nothing has changed” since gays and lesbians gained legal marriage rights in 36 states and Washington, D.C.
Mr. Duncan was frequently interrupted and challenged by Judge Higginbotham and Judge Graves, who both seemed more skeptical of the state’s position than Judge Smith.
In fact, Judge Graves suggested that fears of same-sex marriage were silly: “Because we don’t know, we should fear the unknown, and therefore we should ban it,” he said, according to a tweet from Chris Johnson, a reporter with the Washington Blade.
The Mississippi argument featured gay rights lawyer Roberta Kaplan, who famously won the landmark Windsor case that struck down the federal Defense of Marriage Act.
Ms. Kaplan told the court that no “logic, common sense and even simple human decency” should cause them to deny married parents to children of gay couples, according to Lauren McGaughy, a reporter for Houston Chronicle.
Reporters said the judges focused their questions on the state’s arguments while offering little or no objection to the proponents of same-sex marriage. Judge Higginbotham even closed the Mississippi case by saying, “Those words ’Will Mississippi change its mind?’ have resonated in these halls before,” tweeted Texas Tribune reporter Alexa Ura.
Judge Smith, the most conservative member of the panel, repeatedly asked why the issue should be decided by the 5th Circuit at all, citing a 1972 Supreme Court case that said the issue of gay marriage did not rise to the level of federal oversight, wrote Ms. McGaughy.
In the Texas hearing, state attorney Jonathan Mitchell also said same-sex marriage was too “new” a social change to be imposed by courts on states.
According to the Austin American-Statesman, Judge Graves interrupted Mr. Mitchell to ask, “What’s the magic number of years? Twenty? Five?”
“I don’t know,” Mr. Mitchell replied, according to the Austin newspaper. “I think that’s a decision for the legislature, Judge Graves. The legislature has the right to decide when it feels comfortable making such a dramatic change to a social institution that has existed for millennia. … The people of Texas have every right to proceed with caution, and they can wait and see how this social experiment plays out” in other states.
Counting Florida — whose gay marriage case is still in federal appellate court — 36 states and the District currently permit gay marriage, many because of court rulings in the last year.
Separately, the U.S. Supreme Court on Friday considered a request to review a 6th U.S. Circuit Court of Appeals ruling that upheld the marriage laws of Michigan, Tennessee, Ohio and Kentucky.
All other circuit courts to date have overturned such marriage laws, and advocates on both sides of the gay marriage issue have urged the high court to consider a case on the merits.
The high court could announce its decision on the 6th Circuit review Monday.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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