You can’t necessarily tell how a judge will rule based on his or her questions and comments in court.
Some judges even make a point of trying to frustrate handicappers; that’s what U.S. District Judge Martin Feldman did last year while presiding over a challenge to Louisiana’s ban on same-sex marriage.
Feldman, a Reagan appointee and friend of conservative U.S. Supreme Court Justice Antonin Scalia, went so far as to cite in court his mentorship of Scalia’s liberal colleague Sonia Sotomayor. He then proceeded to rule exactly as everyone had predicted, becoming the first federal judge in the nation to buck the trend and uphold the constitutionality of state marriage bans.
Last week, an appeal of that ruling, along with appeals of contrary decisions in Texas and Mississippi, landed before the 5th U.S. Circuit Court of Appeals in New Orleans, which is widely deemed the most conservative appellate court in the country. And this time, all eyes — and ears — were on another Reagan-appointed jurist, a Texan named Patrick Higginbotham, whose questions and comments left gay rights supporters feeling understandably buoyed.
By luck of the draw, the three-judge panel tasked with determining the status of couples in three states, at least until Scalia, Sotomayor and company finally decide the issue once and for all, mirrored the closely divided high court.
There’s an Obama appointee, James Graves, of Mississippi, who is considered a likely vote for same-sex marriage rights and who did nothing during last week’s proceedings to discourage that notion. To the argument that the definition of marriage as being between a man and a woman is deeply rooted in history, Graves said that so is recognition of legal marriages performed in other states; that, he said, makes the case for such recognition, now prohibited by Louisiana’s ban, “compelling.” Responding to a contention by the state’s attorney that allowing same-sex marriage would amount to venturing into uncharted territory, he responded: “Since we don’t know, we should fear the unknown and we should ban it?”
There’s another Reagan judge from Texas, Jerry Smith, who’s considered likeliest to uphold the state bans. Smith played his expected role, too, at one point responding to arguments that marriage is designed to link biological children to parents — a scenario that leaves out older partners, those who can’t or choose not to have children, and adoptive parents — by noting that a law can uphold a “rational” purpose without being perfectly tailored to meet it.
Smith did differ from Feldman in asking Louisiana’s lawyer Kyle Duncan to explain the applicability of the Supreme Court’s Loving decision, which invalidated Virginia’s ban on interracial marriage. Many same-sex marriage proponents, and a number of judges, have cited the case as precedent for applying the equal protection standard to same-sex couples, but Feldman had announced in court that he didn’t find it relevant to the case at hand. It was unclear, though, whether Smith meant to endorse the link, or simply give Duncan a chance to explain why he thinks Loving doesn’t apply.
The swing vote — the Anthony Kennedy, if you will — is Higginbotham, who is considered more of a moderate, and who barely let Duncan get rolling before hitting him with skeptical questions.
“Let’s suppose that I’m a 22-year-old male sentenced to life without parole in a prison system that doesn’t allow conjugal visits,” Higginbotham asked. “Do I have a constitutional right to marry?”
“Why would marriage be extended to people who are sterile, etc., or people who are aged, such as I am?” the 76-year-old judge asked.
Where Smith allowed that linking marriage to childbearing is an imperfect fit, Higginbotham said that there’s a difference between an imperfect fit and no fit, and cited a 7th Circuit ruling finding the latter.
While Duncan spent much of his argument citing the part of the Supreme Court’s 2013 opinion overturning the federal Defense of Marriage Act that bolstered his case for states’ rights, Higginbotham highlighted the part where the court deemed restrictions on same-sex marriage demeaning.
And when Mississippi’s lawyer cited a case from the early 1970s in which the high court dismissed an attempt to have same-sex marriage declared a constitutional right, Higginbotham acknowledged how far American society had come.
“It’s hard for me to say there hasn’t been a sea change” since then, he said.
It would be hard for anyone to say that. And it should be hard for anyone to believe that the law shouldn’t reflect those more enlightened impulses, that it should continue to treat some American families as unworthy of recognition, dignity and protection.
The best news to come of out of last week’s hearing is that maybe, just maybe, Higginbotham doesn’t.