5th Circuit hears oral arguments in marriage cases for LA, TX, and MS

Editors' Note: This blog post will be updated as soon as audio from the oral argument in the 5th Circuit is available. Thanks for following along!

Today, January 9, the United States Court of Appeals for the 5th Circuit heard oral arguments in three landmark marriage cases out of three different states - Louisiana, Texas, and Mississippi. In Mississippi and Texas, federal judges have ruled in favor of marriage for same-sex couples. In Louisiana, a federal judge has ruled against the freedom to marry. All three rulings were appealed and heard by a 3-judge panel today.

Please note that a ruling is not expected for at least a few weeks. This year four other federal appellate courts - the 4th Circuit, 7th Circuit, 9th Circuit and 10th Circuit - have already affirmed the freedom to marry in many different cases, with the U.S. Supreme Court allowing those rulings to take effect, bringing the freedom to marry to a total of 35 states. In only one other federal appellate court - the 6th Circuit - have laws banning the marriage between same-sex couples been upheld, and these cases are now seeking review from the Supreme Court of the United States.

Argument Overview

Reporters covering the 5th Circuit marriage cases emerged after each hour-long argument with good news for marriage supporters: Most reported a sense of understanding among a majority of the judges that laws denying the freedom to marry to same-sex couples violate constitutional principles.

After the argument (see excerpts and quotes from each argument below), each legal team and group of plaintiffs participated in a press conference, hosted in collaboration by the Campaign for Southern Equality, Equality Texas, Forum for Equality Louisiana, Freedom to Marry, and Lambda Legal. The argument featured plaintiff couples and the attorney who argued the case - Lambda Legal's Camilla Taylor (Louisiana), Neel Lane (Texas), and Roberta Kaplan (Mississippi).

Freedom to Marry Presidant Evan Wolfson reflected today:

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. 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.

Previous Coverage of Marriage at the 5th Circuit

TEXAS • DeLeon v. Perry

On February 26, 2014, a federal judge in Texas ruled that laws prohibiting same-sex couples from marrying are unconstitutional. The judge also issued a stay on the ruling pending appeal, so same-sex couples were not immediately allowed to receive marriage licenses. Although plaintiffs, represented by private counsel from Akin Gump Strauss Hauer & Feld LLP, have asked for the stay to be lifted in the ruling so that same-sex couples can marry while the appeal is considered, Judge Garcia denied the request, leaving the matter to the 5th Circuit.

The plaintiffs in the case are represented by Akin Gump Strauss Haurer and Feld LLP, with Neel Lane presenting oral arguments today. The plaintiffs are Cleopatra Deleon and Nicole Dimetman, who married in Massachusetts and are expecting their second child in March, and Victor Holmes and Mark Phariss, who have been together for nearly two decades. 

Some key quotes from the judges:

  • “So there are benefits that flow from the right to marry, and the state can choose whether to confer or withhold the benefits. But that doesn’t justify the altogether denial of the right, does it?” -- Judge Graves
  • I’m not denying you the right to eat lunch, I’m just telling you I’m not going to pay for it. But in this instance, you’re saying, not only am I not going to confer any of the benefits of marriage, I’m going to deny you the right to marry.” -- Judge Graves
  • “[Marriage between same-sex couples] has no consequences, then, other than the use of the state’s resources. … Your reason is that they just do not want to support this particular process here. Not because it would harm anyone, but because it just does not want to spend its money on this. … Is that it?” -- Judge Higginbotham 

Listen to the full recording of the arguments here

LOUISIANA • Robicheaux v. Caldwell

On September 3, U.S. District Judge Martin Feldman became the first federal judge since June 2013 to uphold marriage discrimination in this federal case seeking the freedom to marry and respect for marriages performed in other states. The case is led by Lambda Legal, Stone Pigman Walther Wittman, Richard Perque and Scott Spivey; today, Camilla Taylor of Lambda Legal presented the oral arguments. The case includes 7 plaintiff couples - Lauren and Jackie Brettner, Nick Van Syckles and Andrew Bond, Havard Scott and Sergio Prieto, Henry Lambert and Carey Bond, Jon Robichaux and Derek Penton, Courtney and Nadine Blanchard, Robert Wells and Garth Beaugard - and the Forum for Equality Louisiana.

Meanwhile, plaintiffs in the case are seeking review from the United States Supreme Court, petitioning the Court to grant certiorari before judgment from the 5th Circuit.

Some key quotes from the judges:

  • “Sexual orientation is an immutable characteristic … but it does not come with any disability, there is no suggestion that sexual orientation has any relevance to the ability to perform. … so now you have a classifier of that order. What is the justification for using that as a classifier by state? … what do you point to as the rational support for the state to differentiate on that classifier?” -- Judge Higginbotham referencing states' reasons for denying same-sex couples marriage.
  • “Back to procreation where we started, and the counter argument to that, of course, is yes, if that really is the basis, why is marriage quickly extended to people who are sterile?” -- Judge Higginbotham
  • “There’s other language in Windsor that you have to deal with; for example, the statement that the differentiation demeans the couple whose moral and sexual choices the constitution protects….that’s pretty broad language regarding the specific choice that’s involved here." -- Judge Graves on the assertion that the Windsor decision was about states’ rights.
  • "Council, help me understand how those purposes are frustrated if same-sex couples are allowed to marry." -- Judge Graves, referencing the idea that marriage is for procreation between a man and woman.

MISSISSIPPI • Campaign for Southern Equality v. Bryant

On November 25, 2014, U.S. District Court Judge Carlton W. Reeves ruled in this federal legal case that denying the freedom to marry to same-sex couples in Mississippi is unconstitutional. The case was brought on behalf of two same-sex couples and the Campaign for Southern Equality by private counsel, including Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLC. Plaintiffs include Jocelyn Pritchett and Carla Webb, Andrea Sanders and Rebecca Bickett, and the Campaign for Southern Equality.

Some key quotes from the judges:

  • “There’s been change in this whole area of human rights and equal protection in particular since 1975.” -- Judge Graves
  • “Do you see any tension in the fundamental principles of the level of scrutiny that the government ought to give to the state’s use of those as classifiers?” -- Judge Higginbotham on using gender and sexual orientation as classifiers
  • “Those words, ‘Will Mississippi change its mind?’ have resonated in these halls before.” -- Judge Higginbotham
  • “There’s been a sea change in this whole area of human rights and equal protection in particular since 1975.” -- Judge Higginbotham

Listen to the full audio recording of the arguments here