Gulf Coast Gay Marriage Bans Get Cool Reception at Appeals Court

Gay marriage opponents got a cool reception from a federal appeals panel as they sought to maintain bans on same-sex unions in three U.S. Gulf Coast states, while the nation’s top court passed on dealing with the issue today.

Same-sex marriage is in place in 36 U.S. states plus the District of Columbia. Rulings last year by federal judges in New Orleans and San Juan, Puerto Rico, and an appellate panel in Cincinnati slowed the momentum of gay rights’ advocates who’d won more than a dozen consecutive rulings in the year starting September 2013.

Opponents today asked the appeals court in New Orleans to roll back rulings by Texas and Mississippi judges blocking laws that bar same-sex unions there and to sustain a Louisiana judge’s decision upholding that state’s prohibition, with Mississippi arguing that its prohibition is rooted in procreation.

“It’s what traditional marriage was founded around,” said Justin Matheny, a lawyer for Mississippi. “It was the legitimate interest in the first place and it’s still the legitimate interest today.”

The state could ultimately change its mind on the issue, but it shouldn’t have to do so yet, Matheny said.

“Those words: ‘Will Mississippi change its mind?’ have resonated in this hall before,” responded U.S. Circuit Judge Patrick E. Higginbotham, who was appointed to the appellate court by Republican President Ronald Reagan in 1982. Higginbotham’s allusion to Mississippi’s role in the U.S. civil rights battles of the 1960s left its attorney without a response.

Supreme Court

U.S. Supreme Court justices were scheduled to consider at a private conference whether they will rule on same-sex marriage rights during the current term that ends in June. The court took no action on the issue today, but could act when it issues a longer list of orders Jan. 12.

Texas Solicitor General Jonathan Mitchell told the New Orleans panel that opposite-sex couples advance the state’s interest in preventing unplanned, out-of-wedlock births.

“Same-sex couples do not,” Mitchell said.

S. Kyle Duncan, a Washington-based attorney arguing to preserve Louisiana’s lower court victory, told the judges that the state ought to be allowed to see how such unions fare elsewhere before being compelled to legalize them.

“So, since we don’t know, we should fear the unknown and we should ban?” asked Circuit Judge James E. Graves, nominated to the court in 2011 by President Barack Obama.

Arguing for gay marriage supporters in Mississippi was Roberta Kaplan, the attorney who in 2013 won a Supreme Court decision that struck down the part of the U.S. Defense of Marriage Act which limited federal recognition to unions consisting of one man and one woman.

Second Class

“Because of the Mississippi statute, many thousands of gay people in Mississippi are being treated as second-class citizens,” she told the court today.

Joining Higginbotham and Graves on the panel was a second Reagan selection, U.S. Circuit Judge Jerry E. Smith.

The judges heard arguments from all three states for more than three hours. They didn’t rule or indicate when they would.

In November, a U.S. appeals court in Cincinnati reversed rulings that struck down gay marriage bans in Michigan and Kentucky, as well as decisions in favor of out-of-state same-sex marriage recognition in Kentucky, Tennessee and Ohio.

The cases are DeLeon v. Perry, 14-50196, Robicheaux v. Caldwell, 14-31037, and Campaign for Southern Equality v. Bryant, 14-60837, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

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