The Austin Chronicle

5th Circuit Considers Marriage Equality

Judges question state's argument that marriage is for procreation

By Mary Tuma, January 16, 2015, News

Gay marriage is tantamount to an irresponsible "social experiment," argued Texas Solic­itor General Jonathan Mitchell, echoing the state's continuing defense of the ban during last Friday's court hearing over marriage equality. The New Orleans-based 5th Circuit Court of Appeals heard cases from Texas, Louisiana, and Mississippi on Jan. 9, following a state appeal after a federal judge ruled the law unconstitutional last February.

Similar to the unusually critical line of questioning by the conservative 5th Circuit judges during last week's hearing on Texas' anti-abortion law (see "HB 2 Returns To Court," left), two of the three judges appointed to hear the LGBTQ rights case – James Graves Jr. (appointed by Barack Obama) and Patrick Higgin­both­am (appointed by Ronald Reagan) – shot back at several points during oral arguments, peppering the defense with a series of hard-hitting questions.

The state regurgitated its curiously clinical perspective on holy matrimony – love is great and all, but the purpose of marriage is really about baby-making. The core of the defense rests on the premise that same-sex marriage would not necessarily be harmful to the state, but fails to advance the state's interests, and thus gay couples shouldn't be entitled to the same economic and legal protections as "traditional" marriage. "[The plaintiffs] view the institution of marriage only to celebrate mutual love and commitment of two people," said Mitchell. "The state's marriage laws reflect a different view – the celebration-of-love component is important, but it's secondary to the interests in generating positive externalities and positive benefits for society, in the form of encouraging the creation of new offspring and in reducing the incidences of unplanned, out-of-wedlock births."

Seeking to clarify, Higginbotham sharply questioned the state's logic, "So the state's reason for [not supporting gay marriage] is because it's not advancing a goal they want to advance? It's not going to harm anything else but we just don't want to spend the money that way?" (Mitchell confirmed this as, indeed, one of the state's arguments.)

Graves engaged Mitchell in a discussion about "animus": "Fear of the unknown, a lack of understanding and sensitivity to people who are different, an insensitivity to the preferences of people who are different – is this not an irrational prejudice?" he asked. Mitch­ell replied because the Texas law is "rooted in scientific fact" and biological reality (procreation), it could not be motivated by animus.

Neel Lane, attorney for the four plaintiffs – Austin-based Nicole Dimetman and her wife Cleopatra de Leon, and Mark Phariss and his partner Victor Holmes – described the hardships the couples face due to the law. Expecting a child in March, Dimetman and de Leon (who legally married out of state) will have a blank space on their infant's birth certificate (see "The Human Right of Marriage"; Nov. 7, 2014); the same blank space would appear on a surviving spouse form in the event of Holmes' death. "These two examples are emblematic of the inferior status restricting same sex marriage results in," said Lane. Slamming the state's justification as "half-baked," Lane argued Texas is trying to radically narrow the definition of marriage and redefine it to the state's advantage. "Everyone knows this law is really about the moral disapproval of homosexuals," he said.

In related news, the U.S. Supreme Court declined this week to examine the challenge to Louisiana's state ban on same-sex marriage (the plaintiffs had asked to skip the usual appeals process on the basis of a "pressing need"), but plans to take up the four other pending suits in Kentucky, Ohio, Michigan, and Tennessee on Jan. 16. Texas is among 14 states with a marriage-equality ban.

Considering the skepticism voiced by Hig­gin­botham and Mitchell, a 2-1 split against the ban doesn't appear out of the question at the 5th Circuit. All parties are sitting tight; there's no deadline for the ruling.

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