Appeals court considers gay marriage for Texas

Mississippi, Louisiana and Texas took their stands against same-sex marriage Friday before a federal appellate court with a legacy of pushing Deep South conservatives out of their comfort zones on civil rights.

Lawyers for gays and lesbians urged the judges to summon the courage of their predecessors. The 5th U.S. Circuit Court of Appeals systematically struck down racial segregation laws in the 1960s, at a time when Southern states were refusing to change and the U.S. Supreme Court seemed reluctant to lead the way.

"This board has a proud tradition in that regard," said Roberta Kaplan, representing gay and lesbian couples challenging Mississippi's marriage ban.

"Times have blinded this country about African-Americans, times have blinded this country about women and times have blinded this country about gay people," she said.

Same-sex marriage is now legal in 36 states and the District of Columbia, where 70 percent of the nation's population lives.

But gay and lesbian marriage rights are new in terms of recorded history, and these Southern states must be allowed to protect their citizens from unforeseen consequences even if the rest of the country goes a different direction, their lawyers argued.

"The law is moving, but it is not there yet," said attorney Justin Matheny, urging a three-judge panel to give Mississippi more time to consider whether it's ready for change.

Two of the judges -- James Graves and Patrick Higginbotham -- frequently interrupted and challenged the states' arguments.

Graves asked how many more years Texans would need before deciding whether gay marriage is acceptable or not -- 20? Five?

"The people of Texas have the right to proceed with caution and see how this social experiment plays out," Texas Solicitor General Jonathan Mitchell responded.

Higginbotham suggested that similar arguments were made in the 1960s, when the 5th Circuit heard cases from Texas to Florida, repeatedly overcoming state support for laws that maintained a racially discriminatory society.

"Those words, `will Mississippi change its mind?' have resonated in this hall before," Higginbotham said.

But Judge Jerry Smith, known as a social conservative, challenged Kaplan. He noted that the Supreme Court already looked at gay marriage in 1972, and found no reason to allow it.

"It was a different world" back then, she responded -- one where gay sex was outlawed. Since then, there has been a sea change in legal rulings and in societal attitudes, she said.

The hearings turned repeatedly on when a society becomes ready for change.

Only 10 years of data has been gathered since Massachusetts became the first U.S. state to legalize same-sex marriages -- not enough to understand the consequences, said Louisiana's special counsel, Kyle Duncan.

"There are now 36 states and the District of Columbia that allow same-sex marriage and nothing has changed," countered Camilla Taylor, a Lambda Legal Defense Fund attorney representing seven couples challenging Louisiana's ban.

State attorneys argued that upholding "traditional marriage" helps states grow while reducing unplanned pregnancies.

"It is certainly rational" to fear that allowing gay marriage could undermine heterosexual marriages, Mitchell said, blaming lower fertility rates in Europe on a general acceptance of gay marriage there. The state of Texas, he said, has an "interest in encouraging couples to produce children."

When this argument also came up during Mississippi's case, Higginbotham said "you don't need to have an incentive to have sex."

Mitchell also said that Texans were "acting out of the deeply held belief in the benefits of traditional marriage."

"Everyone knows this is a moral disapproval of homosexuality," countered David Mcneel Lane, an attorney for Texas plaintiffs. "The reality is that my clients live every day under the cloud of stigma."

Higginbotham and Smith were appointed to the court by President Ronald Reagan; Graves was appointed by President Barack Obama. Theirs could be among the last federal appellate hearings before the Supreme Court decides the issue.

The justices took no action Friday during their private conference in Washington, but could decide next week whether to consider this issue this term, meaning cases could be argued and decided by late June.

A split among the appellate courts makes an eventual intervention by the Supreme Court very likely.

Anti-gay-marriage laws in Kentucky, Michigan, Ohio and Tennessee were upheld in November by the 6th U.S. Circuit Court of Appeals in Cincinnati. But four other appeals courts -- based in Chicago, Denver, San Francisco and Richmond, Virginia -- have ruled in favor of gay and lesbian couples. And with only 14 states still prohibiting same-sex unions, the justices may be more likely to consider a nationwide change.

The 5th Circuit also is considering a split decision. Texas and Mississippi's bans were ruled unconstitutional, while U.S. District Judge Martin Feldman upheld Louisiana's ban, bucking a trend of 20 consecutive rulings overturning bans in other states. Feldman's ruling was the first to uphold a state ban since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.

Other states still enforcing same-sex marriage bans are Alabama, Arkansas, Georgia, Missouri (except in Kansas City and St. Louis), Nebraska, North Dakota and South Dakota.