Same-sex marriage cases heard in NO

In a high-ceilinged chamber whose gumwood-paneled walls speak to concepts of judicial majesty, three black-robed judges took their places Friday morning, preparing to hear arguments and – perhaps – make history.

In the front row of the Fifth Circuit U.S. Court of Appeals’ West Courtroom, three Louisiana couples watched carefully as the proceedings began.

Nadine and Courtney Blanchard of Raceland want their Iowa marriage recognized by Louisiana, as do John and Derek Penton-Robicheaux of New Orleans.

Robert Welles and Garth Beauregard likewise were thwarted in their attempt to obtain a marriage license in Orleans Parish.

U.S. District Court Judge Martin Feldman ruled Sept. 3 that Louisiana’s ban on same-sex marriages does not violate the U.S. Constitution and the couples appealed.

Their supporters maintain that the right to marry should not be denied on the basis of gender or the gender of one’s partner, and that the Louisiana ban, like the others which remain in the U.S., demeans the relationships of same-sex couples and their children to such a degree that it rises to a violation of equal protection under the law.

Supporters of Judge Feldman’s ruling – one of the few in the federal court system rejecting the arguments of same-sex couples – say allowing these marriages without voter approval violates the right of the state’s electorate to make its own decisions on who may marry. They also see the potential of same-sex marriage recognition as damaging to the institution of marriage itself. Additionally, an argument has arisen in court briefs that allowing gay people to marry is inconsistent with what opponents say is a chief purpose of the state’s involvement with marriage to begin with, providing incentives for procreation.

The trio of judges seated Friday heard the Louisiana couples’ appeal; they also heard appeals from the states of Texas and Mississippi, where federal judges took a different view than Feldman, voiding laws denying marriage to same-sex couples.

Friday’s Fifth Circuit hearing took on additional significance Tuesday, when the U.S. Supreme Court announced that it denied a request for its justices to hear the Louisiana case prior to the lower court’s decision.

In the Louisiana case, the first on Friday’s Fifth Circuit agenda, attorney Camilla B. Taylor of New York-based Lambda Legal argued for the couples.

“There are two main claims in this case, that the exclusion of lesbian and gay couples and their children from marriage violates both the due process clause and the equal protection guarantee,” Taylor said as she opened her argument. “It violates the fundamental right to marry because it discriminates based on sexual orientation, based on sex and with respect to the exercise of a fundamental right.”

COURT’S OBLIGATION

The state’s argument, stated in briefs, that marriage is the sole purview of the states themselves is flawed, Taylor said, reciting cases that she identified as relevant to that statement. She also noted that the Fifth Circuit itself had struck down a Louisiana law that designated husbands the head and master over community and property, a law that pre-dated Louisiana’s statehood, because it violated the Constitution’s equal protection clause.

“The equal protection guarantee is at its essence a counter-majoritarian principle,” Taylor said. “If it means anything at all it means that courts are not only empowered but obligated to strike down laws when those laws target a minority for disfavored treatment … The equal protection and due process clauses are not policies that can be preferred, they are mandates. They are not optional, and even when states act in any area that is indisputably a mater or state rather than federal purview, states cannot use the democratic process to write inequality into the law, or to deprive individuals of the liberty and autonomy that is guaranteed by the due process clause.”

At that point – three hours and twenty-nine seconds into her argument – one of the judges interrupted Taylor to ask a question.

“Specifically, counsel, which liberties are you talking about?” asked Judge James Graves Jr., an appointee of President Barack Obama.

“The fundamental right to marry, the ability to choose the person we wish to marry,” Taylor responded, stressing that the Fifth Circuit and the U.S. Supreme Court have recognized that “matters guaranteed by the bill of rights are not to depend on majority votes.”

When hurt or injury is inflicted on individuals by law, she continued, the Constitution requires that courts address the matter.

“Here the law targets lesbian and gay people and their children for disparate treatment,” Taylor said, reminding the judges of the 2013 Supreme Court decision declaring the 1996 federal Defense of Marriage Act, which prevented same-sex married couples from receiving the same benefits and recognitions from the federal government as others, unconstitutional.

DOMA CASE IS KEY

Specifically, Justice Anthony Kennedy, writing for the majority, states in U.S. v. Windsor that DOMA not only violated constitutional rights of gay married couples, but demeaned and humiliated their children, affixing a stigma to those unions and their issue.

Judge Graves raised a second question during Taylor’s presentation, noting that the arguments for recognition of marriages from other states contained in the pro-marriage briefs are “compelling.”

“Would it be legally inconsistent to conclude that Louisiana should recognize same sex marriages from other states, but at the same time conclude that Louisiana had a right to ban same sex marriage in Louisiana?” Graves asked.

Yes, Taylor replied, linking her answer to Loving vs. Virginia, the case that struck down laws barring interracial marriages.

The Supreme Court’s decision in that case, she said, made clear that both Virginia’s ban on allowing interracial marriages and its refusal to recognize them both violated the same constitutional principles. Taylor concluded her argument by paraphrasing Justice Kennedy’s words in the 2003 landmark Lawrence vs. Texas case, which extended constitutional protections to practices in the bedroom.

“We know that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” she said. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. That is what the plaintiffs have done today.”

Once Taylor re-took her seat S. Kyle Duncan, a Washington, D.C.-based attorney representing Louisiana walked to the podium. An LSU graduate, he is a former solicitor general for the state.

“Same-sex marriage is a brand new perspective on marriage, one that only began to be considered in the last two decades by the states,” Duncan began. “The question here is whether the 14th Amendment compels the states to adopt and recognize it.”

QUESTIONS GALORE

Before Duncan could continue, Judge Patrick Higginbotham, a Reagan appointee, interrupted. Higginbotham launched directly into the procreation question.

“Let’s suppose that I am a 22-year old male sentenced to life without parole, in a prison system that does not allow conjugal visits,” Higginbotham said. “Do I have a constitutional right to marry?”

Caselaw, Duncan replied, likely affirms that the person does, specifically Turner v. Safley, a 1987 case that upheld the right of inmates to marry without special permission from a warden.

Under continued questioning from Higginbotham, Duncan attempted to differentiate between the ultimate decision in the Turner case and the matter at bar concerning same-sex couples.

“Turner suggests that a blanket ban on incarcerated persons being married violates the due process clause,” Duncan said, appearing to maintain that incarceration rather than the idea of marriage as a fundamental right was at issue in that case.

Sparring between Duncan and Higginbotham continued; Duncan was able to steer his argument to U.S. v. Windsor, taking a different view than the pro-gay marriage attorneys.

Windsor, he said, implicitly upheld the right of a state such as New York to make its own decisions regarding who can marry.

“Windsor says that what is fundamental in this area is democratic decision making,” Duncan said. “Windsor held up as a model New York’s statewide deliberative process. It allowed its citizens to weigh the benefits and the negatives of same-sex marriage … that is part of he dynamic of our state governments in our federal system, to allow that kind of decision-making. This novel understanding of marriage, it involves the community’s consensus about the meaning of marriage and the direction and evolution of equality.”

DISCRIMINATION

Judge Jerry Edwin Smith – also a Reagan appointee – then interrupted, telling Duncan that such a line of reasoning require him to address the Loving finding against inter-racial marriage bans.

Loving, Duncan responded, dealt with “invidious discrimination” on the basis of race, and that the issue was different from those in the current Louisiana case.

Higginbotham joined in again, asking pointed questions about what specific and rational justification Louisiana was using to withhold marriage from gay couples.

“The man-woman classification is directly relevant to the normal procreative process is directly relevant to the normal procreative potential of men and women,” Duncan said. “There is a very common sense link.”

“If that really is the basis for it why is marriage extended to people who are sterile, or people of age, someone as old as I am who hopefully would not procreate,” Higginbotham said.

“It is directly relevant to the normal procreative potential of men and women, there is a very common sense link there, a direct link,” Duncan said.

In response to a question from Graves about what harm to marriage is posed by same-sex unions, Duncan repeated his previous assertions.

Higginbotham raised the issue of animus – the idea that a law is directed at a group without a rational reason for doing so – causing a reversion to the state’s argument by Duncan.

“This is a novel issue that is given to the citizens of the states to decide which direction are we going to go in,” Duncan said. “And so we ask the court to uphold Judge Feldman’s decision upholding the democratic authority of the state to uphold the standing definition of marriage.”

QUESTIONS FUEL OPTIMISM

After arguments for and against the decisions in Texas and Mississippi – which resembled some of the issues raised in the Louisiana matter – gay litigants from all three states gathered outside the courthouse and made public statements furthering their cause.

“I am encouraged,” Courtney Blanchard said. “I was surprised when the judge started asking questions in the very beginning of the state’s case. That makes us optimistic.”