NEW ORLEANS, Louisiana -- The three-judge panel at the Fifth Circuit Court of Appeals heard oral arguments Friday morning involving gay marriage in Louisiana, Mississippi and Texas. Veteran reporters are tweeting that by all indications, based on the line of questioning from the judges, things went well for marriage-equality supporters.
Judge Patrick Higginbotham, who is considered the swing vote, and Judge James Graves, who was recently appointed by President Barack Obama and is presumably more progressive in his views, consistently challenged the attorneys who were defending the bans on gay marriage. Judge Jerry E. Smith clearly opposed marriage equality. Smith and Higginbotham were appointed by President Ronald Reagan.
This is an unexpected twist since the Fifth Circuit is considered the most conservative and most controversial appellate court in the United States.
Kyle Duncan, the attorney trying to protect Louisiana's ban, argued that gay marriage was "a novel perception" in recorded history. But Camilla Taylor, the Lambda Legal attorney, countered that 36 states and the District of Columbia have legalized marriage equality. Duncan also tried to argue that marriage was all about procreation, but Judge Graves scoffed at that tired old argument. “Help me understand how those purposes are frustrated if same-sex couples are allowed to marry?” the judge wondered.
Judge Smith, during the three hearings, tried to justify the bans based on Baker, a Supreme Court decision from 1971 that many legal experts say has become outdated. His line of thinking followed that of Judge Jeffrey Sutton, who authored the 2-1 decision by the Sixth Circuit Court of Appeal that upheld the gay marriage bans in Michigan, Ohio, Kentucky and Tennessee and used Baker as the basis for his ruling in favor of discrimination. Those case have been appealed to the U.S. Supreme Court, which looked at the motions today but haven't yet announced whether they will hear any of the cased.
Judge Higginbotham seemed frustrated by Judge Smith's Baker arguments, according to Chris Geidner of Buzzfeed, who was in the courtroom and tweeted.
Geidner tweeted this: "... the 5th Circuit appears poised to strike down state same-sex marriage bans."
Evan Wolfson, president of Freedom to Marry, reflected on today's oral arguments.
"Once again an appellate court was presented with the lopsided case in favor of the freedom to marry, the opponents having no evidence and no significant legal justification to outweigh the powerful arguments for ending the exclusion of gay couples from marriage. Couples in Texas, Louisiana, and Mississippi have the same aspirations for love and commitment, the same needs for the legal protections and responsibilities marriage brings, and the same rights under the Constitution as couples in the vast majority of the country where marriage discrimination has been discarded," Wolfson said.
"Freedom to Marry joins these couples and their advocates in calling on the 5th Circuit to do what more than 60 state and federal courts, including four federal circuit courts, have now done: affirm the freedom to marry and end the discrimination that harms families and helps no one," he said.
Chris Johnson, from the Washington Blade, also was in the courtroom and tweeted this: "My prediction: #5thCircuit will strike down marriage bans 2-1 based on Higginbotham's skepticism of state of Louisiana's arguments."
To listen to audio from the other two cases or to read more in the Freedom to Marry blog, click HERE.