ROBERT MORRIS | UPTOWN MESSENGER
John Denison of the Forum for Equality introduces attorneys and plaintiffs in gay-marriage cases from Louisiana, Texas and Mississippi that will be heard Jan. 9 by the Fifth Circuit U.S. Court of Appeals.
The fight for same-sex marriage in three of the deepest Deep South states – Louisiana, Mississippi and Texas – will have a crucial moment on the battlefield Friday before the 5th Circuit U.S. Court of Appeals, although even the most optimistic scenarios for legal same-sex marriage still place it weeks or months away.
Starting at 9 a.m., a three-judge panel in the federal court will hear oral arguments challenging bans on same-sex marriage in separate cases from each state. Each state’s case is allotted an hour of discussion, with the hearing expected to be finished by noon.
The underlying issues in each states’ cases are the same, attorneys and advocates said in a Thursday night briefing for supporters at Cathedral Creative in the Central Business District, about two blocks from the federal courthouse. Each case focuses on whether the 14th Amendment of the Constitution allows the state to deny marriage to some couples based on their gender – whether in the case of issuing licenses in-state or recognizing marriage licenses issued out of state – and all three states are expected to have the same decision, whichever way it goes.
“If Texas’s ban violates equal protection, so does Louisiana’s,” said Chris Otten, chair-elect of the Louisiana-based Forum for Equality. “If that ban is valid, then almost certainly Louisiana’s would be.”
Joce Pritchett, a plaintiff in the Mississippi case, framed the cases in terms of the question her young daughter Grace recently posed as to why Pritchett and partner Carla Webb aren’t married like other parents.
“It seems so simple to Grace that laws that hurt people should be changed,” Pritchett said. “It’s simple to us, too.”
In Mississippi and Texas, federal judges have stricken down bans on gay marriage – though gay marriage is still on hold in those places while the state governments appeal the judges' decision to the Fifth Circuit. Louisiana’s case is different, however, U.S. District Judge Martin Feldman's made the rare ruling last fall upholding Louisiana’s ban on gay marriage. Feldman said federal law allows states to defer to the democratic process on issues related to marriage, leaving gay-marriage advocates appealing to the Fifth Circuit.
“Our response is that fundamental rights like marriage should not be put to the popular vote,” said attorney Dalton Courson of Stone Pigman Walther Wittmann, representing the Louisiana case. "The essential legal issues are the same, whether the 14th Amendment requires states to recognize the equal dignity of same-sex relationships.”
Friday’s hearing is significant, attorneys said, because it is the last chance that they have to make arguments on behalf of their cases prior to the judges’ decision. The discussion will mostly concern the legal issues at play, and witnesses are not expected to testify.
“It’s an opportunity to address questions and concerns that the judges have,” Courson said. “On an appeal, it’s the only opportunity you have to directly interact with the court.”
The Fifth Circuit’s ruling is not expected Friday — that normally takes several weeks or more — but how a final decision on same-sex marriage in Louisiana will be rendered remains completely up in the air. While attorneys argue the Louisiana, Texas and Mississippi cases in New Orleans, the U.S. Supreme Court will simultaneously be deciding which cases to take up in its next session – including, possibly, one of these same cases.
One option is that the U.S. Supreme Court could on Friday reject all the cases, essentially leaving the ultimate decision of the Fifth Circuit to stand. Another option is that the Supreme Court could delay its own decision on whether to take up the cases until the Fifth Circuit rules.
If the Supreme Court does take up one of the Southern cases to make a historic nationwide decision, Louisiana’s is a strong candidate, advocates noted, because it includes both the in-state licensing and out-of-state recognition questions in a single case.
Same-sex marriage is now legal in 36 states. But given the unexpected nature of all the decisions up to this point, advocates were loath to predict how soon gay and lesbian couples could start receiving marriage licenses in Louisiana.
“If you’re looking to what would be potentially the quickest decision, it would be the Supreme Court taking one of those cases,” Otten said. “We’ll have a definitive answer for the entire country by the summer, if they take one of those cases tomorrow.”
But either way, Friday’s hearing has families across the Deep South feeling as if they are on the verge of seeing history made.
“Hopefully, same-sex couples will be able to marry as quickly as possible,” said Jasmine Beach-Ferrera of the Campaign for Southern Equality, describing people with terminal illnesses whose lives are literally hanging on the decision. “The human urgency of this can’t be understated.”
— Robert Morris is the editor of Uptown Messenger.