The Fifth Circuit Oral Arguments Look Good for Gay Marriage

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Those who have been hoping to see gay marriage recognized in the Lone Star State had a very good day in court on Friday. The U.S. Fifth Circuit Court of Appeals heard oral arguments on gay marriage cases from Texas, Louisiana and Mississippi, and the responses of the two judges who are most likely going to vote to strike down gay marriage bans were nothing less than awesome.

Most experts are betting that the U.S. Supreme Court will still ultimately be forced to take up the issue and make a clear-cut decision one way or another. But in the meantime, on Friday morning a panel of Fifth Circuit judges, comprised of Judge James Graves Jr., a President Barack Obama appointee, Judge Jerry E. Smith and Judge Patrick Higginbotham, both appointed by President Ronald Reagan, dug into the issue and spent more than three hours -- with each case getting about an hour of time -- tearing into the legalese behind these bans.

Based on the responses of Higginbotham and Graves there's a strong chance that the court will ultimately strike down the gay marriage ban, legalizing same-sex marriages in Texas, Louisiana and Mississippi. If this happens that will bring the total of states that recognize gay marriage up to a cool 39. The fact that Texas could finally be in the yes column is particularly crucial since Texas is the largest of the final 14 states holding out on this issue.

Over the course of Friday morning, Smith -- a right winger of the first degree who will be voting to uphold the ban barring some sudden ideology change -- was focused on upholding the bans because of legal precedent, civil rights concerns be damned.

But then our new favorite judicial duo, Graves and Higginbotham, went to work undermining the line of alleged logic that would ever uphold a gay marriage ban.

During the Mississippi oral arguments Higginbotham wasn't buying the excuse that the state was unlikely to change its position on same-sex marriage and thus should be allowed to keep things as they are. "The words 'will Mississippi change its mind?' have resonated in these halls before," he said. (The Fifth Circuit as a whole is one of the most notoriously conservative courts around these days but back in the Civil Rights era the Fifth made trailblazing rulings on the issue.)

Then during the hearing on the Louisiana case Higginbotham asked why the state Constitution protects the rights of prison inmates to marry but denies the rights of same-sex couples just because they can't procreate, calling the notion "ridiculous."

Graves also weighed in during the Louisiana case, eloquently cutting that state's argument to ribbons. He said this was really about fear of what's different. "Because we don't know, we should fear the unknown and therefore we should ban it," he said in a tone that heavily implied such fears were a stupid reason to ban anything.

Graves then got to work as the lead hitter in the Texas hearing. Texas Solicitor Gen. Johnathan Mitchell presented his case, arguing that safeguarding "traditional marriage" is in the state's interest because it would help the state grow and would keep couples from having children out of wedlock (good luck making sense of that last part; oh, and Mitchell also said something about biology that we couldn't quite grasp). Mitchell claimed Texas wasn't so much denying same-sex couples the right to marry as it was simply refusing to pay for it. Graves wasn't buying it.

"So there are benefits that flow from the right to marry?" Graves asked.

"Yes, that's correct," Mitchell said.

"And the state can decide when to confer or withhold the benefits?" Grave asked.

"Well it has to be a rational distinction."

"But that doesn't justify denial altogether of the right does it?"

And then Graves was back on the subject of fear and how fear drives things. He asked Mitchell to define animus.

"Animus would be irrational prejudice or hatred of..."

At that point Higginbotham interrupted Mitchell, muttering an aside, whether there's such a thing as rational prejudice. Mitchell uneasily chuckled and tried to move on, but Graves wasn't having it.

"But fear of the unknown, a lack of understanding of people who are different, an insensitivity to the preferences of people who are different, this is not an irrational prejudice?" Graves asked.

Mitchell continued to claim that was the case, but the point had already been made.

It's unclear when the Fifth will actually issue their ruling but the smart money's on a 2-1 split that will see gay marriage finally recognized in Texas. And that might happen very soon.

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