NEW ORLEANS — Even though Mississippi, Louisiana and Texas are three very different places, arguments for throwing out each state's same-sex marriage bans—the subject of cases heard in a federal appeals court in New Orleans this morning—don't differ too much.
The reason, argued Roberta Kaplan, who is representing two Mississippi couples in one of the cases is simple: "The Constitution is the Constitution," she said.
The panel included Judge Patrick Higginbotham, Judge Jerry Smith and Judge James Graves. Kaplan, along with Neel Lane and Camilla Taylor, attorneys for same-sex couples in Texas and Louisiana, respectively, argued that state same-sex marriage bans violate the equal-protection and due-process clauses of the 14th Amendment.
In three hours of testimony, attorneys for marriage equality made some form of the following arguments:
· Gay and lesbian people and couples have dignity that is equal to that of straight people and couples.
· Denying same-sex couples the right to marry is a form of discrimination.
· State same-sex marriage bans are modeled after the federal Defense of Marriage Act, which was struck down by the U.S. Supreme Court in 2013.
· Same-sex marriage bans have been enacted as a result of some level of misunderstanding and moral disapproval of gay and lesbian citizens.
· Refusing same-sex couples the right to marry is not related to the government interest of promoting responsible procreation.
Conversely, arguments of attorneys representing the states of Mississippi, Louisiana and Texas could be summarized in the following ways:
· In the case that struck down the Defense of Marriage Act—United States v. Windsor, in which Kaplan also argued on behalf of same-sex couples—Supreme Court justices made it clear that the opinion only applied to that case, and not to cases of state marriage bans.
· States should be able to determine marriage laws for themselves through their democratic process.
· The sexual orientation of a person has not justified the use of strict-scrutiny, which applies to cases in which a person is being discriminated against based on the minority group they belong to, in the Fifth Circuit.
· A 1971 Minnesota case that found same-sex marriage bans do not violate the constitution, Baker v. Nelson, which was dismissed, thus constituted a precedent, by the Supreme Court in 1972, is the precedent that stands in cases on same-sex marriage bans.
· The state only has to prove that the marriage law serves a legitimate government purpose, and that is to promote responsible procreation.
State attorneys—Justin Matheny of Mississippi, Jonathan Mitchell of Texas and Kyle Duncan of Louisiana—disputed that the reason for same-sex marriage bans is to promote responsible procreation, and to keep children linked to their biological parents.
In his questioning Judge Graves, a native of Clinton and appointment of President Barack Obama, pressed government attorneys on why promoting a family structure would require the state to ban same-sex marriage.
When Duncan, the state of Louisiana's lawyer, said that the state has an interest in marrying straight couples who can have biological children, Judge Graves interrupted.
"How does (same-sex marriage) frustrate those purposes?" Judge Graves asked.
In fact, attorney Lane said the state has been unable thus far to answer why, if marriage is good for children, should it be withheld from same-sex couples' children.
"There is a disconnect," Lane said.
Attorney Taylor told reporters afterward she was not surprised, but encouraged by what seemed like an engaged, empathetic line of questioning by the judges.
In keeping with the poignant, optimistic energy of the day, a woman proposed to her girlfriend outside of the courthouse, where judges could make same-sex marriage the law of the land in the Deep South, even if briefly.