On Friday, January 9, the U.S. Court of Appeals for the Fifth Circuit will hear arguments in three separate marriage equality cases from Texas, Louisiana and Mississippi.
While the cases are being argued on the same day, they haven’t been combined like in other circuits. Between the three cases, almost every imaginable argument in favor of marriage equality will be made.
A three-judge panel will hear the appeals, with each side arguing for thirty minutes. The Fifth Circuit is a historically conservative court, and the panel of justices – Patrick Higginbotham, James Graves, Jr. and Jerry Smith – has been called “typical” by a legal expert. It is impossible and unproductive to speculate how the judges will rule, but we know they will be guided by the Texas and Mississippi rulings in favor of marriage equality (which share the company of some 40 other pro-equality rulings in the last year and a half). We also know they’ll be considering the Supreme Court ruling in United States v. Windsor, which said that the federal Defense of Marriage Act “demeans” same-sex couples and “humiliates” their children.
Louisiana
Robicheaux v. Caldwell was originally filed in 2013 under a different name by couples Jonathan and Derek Penton-Robicheaux, and Courtney and Nadine Blanchard, who were both legally married in Iowa. Early in 2014, U.S. District Judge Martin Feldman consolidated their case with another marriage equality case, expanding the issue to include not only recognizing out-of-state marriages, but also considering whether to require Louisiana to issue marriage licenses to same-sex couples.
On September 3, 2014, Judge Feldman became the first federal judge since Windsor to rule that a state’s ban on same-sex marriage was constitutional. Among other things, he said that the state had an interest in regulating the plaintiffs’ “lifestyle choice,” and that the law wasn’t discriminatory because the plaintiffs could still marry people of the opposite sex. His ruling was immediately appealed to the Fifth Circuit and later to the Supreme Court, even before the Fifth Circuit arguments.
Mississippi
In Campaign for Southern Equality v. Bryant, two couples who are raising children – Carla Webb and Joce Pritchett, and Andrea Sanders and Becky Bickett – are suing for marriage equality. Carla and Joce were married in Maine in 2013, and Andrea and Becky were denied a marriage license in Mississippi in 2012. The lead attorney in the case is Roberta Kaplan, who successfully argued Windsor before the Supreme Court.
On November 25, 2014, U.S. District Judge Carlton Reeves struck down Mississippi’s same-sex marriage ban, writing that “gay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry.”
The state appealed the decision to the Fifth Circuit, which also stayed the decision until the appeal could be heard.
Texas
In De Leon v. Perry, Cleopatra De Leon and Nicole Dimetman wanted their Massachusetts marriage recognized, while Victor Holmes and Mark Pharris sought the right to marry in Texas. On February 26, 2014, the Honorable Orlando Garcia ruled in favor of the plaintiffs, but he placed a stay on his order so the state could appeal.
Echoing Windsor, Judge Garcia also emphasized the harm to children that is caused by discriminatory marriage laws, writing that Texas’s marriage ban “denies children of same-sex parents the protections and stability they would enjoy if their parents could marry.”
Currently, 36 states allow same-sex couples to marry. Within the South, couples can marry in Florida, North Carolina, South Carolina, Virginia and West Virginia. A victory at the Fifth Circuit would mean marriage equality would be a reality in the most conservative parts of the Deep South.
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