After months percolating in the court system, the Lone Star State's gay marriage ban is finally getting reviewed by the U.S. Fifth Circuit Court of Appeals this week. And the crazy part is, we actually aren't fairly certain of how they're going to rule based on the selected judges.
Last year, U.S. District Judge Orlando Garcia ruled in De Leon v. Perry -- a suit brought by a lesbian couple who married in Massachusetts and then found they couldn't have both of their names on their first child's birth certificate in Texas -- that the state's gay marriage ban was unconstitutional as it violates our rights under the equal protection clause of the Constitution.
Garcia promptly stayed his ruling striking down the ban until the U.S. Fifth Circuit Court of Appeals could make a decision on the issue. In keeping with everyone's expectations, state officials, including Gov. Rick Perry and Attorney Gen. Greg Abbott, promptly raged against the ruling and filed an appeal with the Fifth Circuit. Because that's what they always do. And now, the time has finally come.
This Friday the a panel of Fifth Circuit judges are scheduled to hear oral arguments on the case. The panel includes Judge James Graves Jr., a President Barack Obama appointee, and Judges Jerry E. Smith and Patrick Higgenbotham, both appointed by President Ronald Reagan.
It's pretty clear how Houston's own Smith will probably rule -- he's an uber-conservative and he has the rulings on the court to prove it -- but things are less clear with Graves and Higgenbotham. Graves is a fairly new appointee to the court, so there's not a lot of his previous opinions to go on, but the odds are that an Obama appointee will most likely follow in the steps of most federal judges in the country and rule against the ban.
The wild card in the game is Higgenbotham. Yes, he was appointed by Reagan, and when he hit the court in the early 1980s Higgenbotham says he was probably the most conservative judge on the Fifth. But a lot has changed since then and Higgenbotham isn't the Smith-brand of conservative, as his decisions have shown through the years. Way back in the Reagan days, Democrats shot down Reagan's U.S. Supreme Court nominee, Robert Bork. The Democrats tried to get Reagan to nominate Higgenbotham in Bork's place, indicating he was the kind of conservative they could stomach confirming. More recently, Higgenbotham wrote an opinion supporting the University of Texas affirmative action program.
All of this means we're faced with an unusual setup from the notoriously (or gloriously, depending on how you feel about their rulings) conservative Fifth Circuit, home of some of the most rightward leaning judges in the country. For once we really won't know how two out of three of the judges will rule on this case until they make a ruling.
Meanwhile, everyone is wondering if the U.S. Supreme Court will finally decide to hear the issue. Since the court struck down part of the federal Defense of Marriage Act in 2013, tons of cases have been filed challenging state bans on same-sex marriage. At the same time, by choice or through court rulings, about three quarters of the country now allows same-sex marriage.
The Supremes don't usually take up an issue until there's a clear difference of opinion amongst the federal courts, so most people expected the Nine to snatch the issue up when the Sixth Circuit became the lone dissenter of gay marriage last November.
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However, the Supreme Court declined to get involved. (And as always they didn't take the trouble to explain themselves.) But the Supremes haven't exactly taken a hands-off approach to the issue: The Supreme Court blocked the enforcement of a Kansas gay marriage ban and refused to extend a stay banning gay marriage in Florida.
All the while the Texas case was working its way through the system, one of the last to finally hit the appeals court level. The Fifth Circuit tied this case to a similar one from Louisiana, delaying the process, but now the case is on deck and it will be pretty interesting to see what decisions come out of it. From there, if one of the parties disagrees with the decision, they will be able to appeal for an en banc review from the Fifth or they'll be allowed to skip that step and go directly to the Supreme Court, according to SCOTUSblog.
All of this means there's a slim chance that Texas might become another state that allows gay marriage, despite the opposition of soon-to-be-former Gov. Rick Perry, soon-to-be-governor Attorney Gen. Greg Abbott and all the rest of the Texas officials who will be shouting again the idea. (Fingers crossed that Lt. Gov. elect Dan Patrick takes to Twitter again to hilariously voice his outrage should this come to pass.)
Of course, if the Fifth stays true to form, Texas could end up with the dubious honor of being the case the Supreme Court finally picks up to look at the issue. Either way, if it ends up in the hands of the Supremes this term -- and some are betting that De Leon v. Texas will be the choice case -- they could issue a decision on gay marriage by the end of their term at the end of July.