Judge Patrick Higginbotham let the state’s lawyer get all of two sentences into his defense of Louisiana’s ban on same-sex marriage Friday before he cut in with a question.
“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 said. “Do I have a constitutional right to marry?”
His point was clear enough: If Louisiana can justify restricting marriage to traditional couples because of their role in bearing children, then why allow a prisoner to wed, even if he has no prospects of raising a family?
Lawyers involved in marriage equality lawsuits from Louisiana, Mississippi and Texas all were in New Orleans on Friday to trade arguments before a three-judge panel of the 5th U.S. Circuit Court of Appeals.
And Higginbotham is viewed as the closest thing that panel has to a swing vote. So the skeptical questioning he aimed at the state Friday offered a tantalizing — if inconclusive — window into his thinking. It left gay rights activists with a ray of hope that one of the most conservative federal appeals courts in the nation might actually side with them.
“You can never be sure, but at least based on the Louisiana argument, I think we’ve got a good shot at getting Higginbotham to agree that the ban is unconstitutional,” said Kenneth Upton, a lawyer with the gay rights group Lambda Legal. “I’m not as skeptical about the 5th Circuit as I was a few weeks ago.”
Still, while two votes would be enough to strike down Louisiana’s ban, court watchers could only speculate on Friday. There is no telling when the appeals court might actually issue a ruling, and skeptical questions do not always point reliably toward a final opinion.
For his part, Kyle Duncan, the state’s lawyer, sounded as upbeat as ever after Friday’s hearing.
“I thought it went great,” he said. “The judges were really engaged, asked a lot of hard questions. That’s the best you can ask for. I have no idea how it will come out.”
Also, it may not ultimately matter what the 5th Circuit decides. Friday’s hearings came just as the U.S. Supreme Court met to begin considering whether it would finally take up the issue. The justices did not make a decision Friday, but they could still take up one or more cases in time to render an opinion this year.
Amid a wave of similar lawsuits, federal appeals courts have already offered conflicting decisions on whether banning same-sex marriage runs afoul of the Constitution’s guarantee of equal protection under the law, or the due process clause. So the Supreme Court is widely seen as likely to step in and resolve the split.
In conference on Friday, the justices were scheduled to consider taking up a ruling from the 6th U.S. Circuit Court of Appeals in Cincinnati, which upheld bans in four states.
They were also set to consider a request from both sides of Louisiana’s lawsuit, who want the Supreme Court to take up their case with the 6th Circuit decision even before the 5th Circuit in New Orleans has a chance to rule.
Even so, no one on either side of the issue in Louisiana is taking their eyes off the case as it stands now. Spectators packed the courtroom in New Orleans, spilling into overflow rooms where the court piped in audio of the proceedings.
Camilla Taylor, a Lambda Legal attorney, argued on behalf of the Forum for Equality Louisiana and a group of gay and lesbian couples, attacking the idea that questions about same-sex marriage should be left to voters instead of the courts.
That was a central theme of U.S. District Judge Martin Feldman’s ruling in September, which the plaintiffs want overturned.
“States cannot use the democratic process to write inequality into the law or to deprive individuals of the liberty and autonomy guaranteed by the due process clause,” Taylor said.
She also echoed Supreme Court Justice Anthony Kennedy, whose 2013 majority opinion in United States v. Windsor served as the catalyst for the dozens of lawsuits on gay marriage now making their way through the courts.
Taking up Kennedy’s point about the children of same-sex couples, Taylor said, “These children are told that there is something wrong with them and their families.”
When Duncan’s turn came, he barely made it off the block before facing questions from Higginbotham.
To the judge’s point about male prisoners, Duncan replied that a prisoner’s right to a traditional marriage would still be more “deeply rooted in the nation’s history” than the relatively novel idea of same-sex marriage.
Higginbotham, 76, persisted. “Why would marriage be extended to people who are sterile, etc., or people who are aged, such as I am?” he asked.
Judge James Graves, an appointee of President Barack Obama, at times seemed disdainful of the state’s case, particularly the idea that states should be left to legislate on gay marriage because of possible unintended consequences.
“Since we don’t know, we should fear the unknown and we should ban it?” Graves asked.
Judge Jerry Smith — like Higginbotham, a Ronald Reagan appointee — gave Duncan the most receptive hearing. Smith seemed more open than the other judges to the idea that Louisiana’s ban has at least a “rational” purpose in mind, even if it is not perfectly tailored to ensure that no couple without biological children can possibly wed.
He referred to case law that suggested a law can pass constitutional muster even if it represents an “imperfect fit between means and ends.”