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Appeals Judges Raise Doubts on Gay Marriage Ban

Two of three federal appeals judges hearing arguments on Texas' ban on same-sex marriages had tough questions for a state attorney's argument that marriage is a “subsidy” that the state has the right to grant and withhold.

The U.S. 5th Circuit Court of Appeals building in New Orleans.

NEW ORLEANS — Signaling significant doubt about the constitutionality of Texas' ban on same-sex marriages, two federal appeals judges on Friday questioned a state attorney's argument that marriage is a “subsidy” that the state has the right to grant and withhold.

In sharp exchanges with two judges of the U.S. 5th Circuit Court of Appeals, Jonathan Mitchell of the Texas attorney general’s office argued during the roughly hourlong hearing that defining marriage should be left to the states, not the courts or the federal government. He added that the state should not be forced to recognize marriages that are not between a man and a woman because such marriages do less to “further the state’s interest” in the procreation of its residents.

Mitchell likened the recognition of marriage to subsidies for school lunches, saying that the state chooses to subsidize lunches for poorer Texas children — and not the full school population — because it's more likely to advance the state's interests. Opposite-sex marriages receive recognition by the state because they are more beneficial to the state's interests by helping prevent unplanned, out-of-wedlock births, he said.

“So marriage is just a subsidy and not a right?” Judge James E. Graves, an Obama appointee, asked Mitchell during the hearing. Mitchell said marriage is a right that comes with benefits the state is entitled to control.

Graves and Patrick E. Higginbotham, a Reagan appointee, spent most of the hearing pondering the competing interests of states' rights and equal protection for citizens guaranteed by the 14th Amendment. Jerry E. Smith, the third judge on the panel hearing the case, questioned whether legal precedent left the decision to recognize gay marriage in the hands of individual states.

A decision from the 5th Circuit, one of the most conservative appellate courts in the country, is not expected for a few weeks. The court also heard arguments Friday in cases on gay marriage bans in Louisiana and Mississippi.

Texas’ same-sex marriage ban has been said to be on precarious legal ground as appellate courts across the country have ruled gay marriage legal in almost three-quarters of the country, making Texas one of 14 states that do not allow marriages between couples of the same sex.

Smith, a Reagan appointee who made clear his support of states' rights, acknowledged the quick pace at which same-sex marriage bans have been overturned. “It is hard to deny the trajectory,” he said.

The plaintiffs in the case include Mark Phariss and Victor Holmes, who were denied a marriage license because of the state’s ban. Cleopatra De Leon and Nicole Dimetman, the other couple in the lawsuit, were married in Massachusetts before moving to Texas, but state law does not recognize legal unions of same-sex couples who were lawfully married in other states.

Neel Lane, an attorney representing the two same-sex couples who first filed the lawsuit in 2013, compared the legal challenge to the fight over civil rights and equal protection. He argued the state could not push laws that discriminated against “unpopular minority groups.”

“Everyone knows that the law is about the moral disapproval of homosexuals,” Lane said, adding that there was a disconnect between the state’s arguments and the law’s effect on gay couples like his clients who live under a “cloud of stigma.”

While Lane presented his arguments, Graves indicated he thought it would be “legally inconsistent” to allow states to recognize a same-sex marriage from another state but not allow gay people to marry within their borders.

"With respect to your clients, is it an everybody wins or nobody wins?" Graves asked. Lane responded, "It's an everybody wins, your honor."

Smith, on the other hand, continued to reiterate he was conflicted about the court's role in deciding the state's authority to define marriage.

The state is appealing a February ruling by U.S. District Judge Orlando L. Garcia, who found the state’s ban was unconstitutional because it “violates plaintiffs’ equal protection and due process rights.” Anticipating an appeal, Garcia stayed his ruling, leaving the ban in place while the case works its way through the courts.


The Texas case is among the last to be heard at the appellate level. In Friday’s hearings on the Mississippi and Louisiana bans, Graves and Higginbotham also challenged attorneys for both states who presented arguments similar to Texas’ legal team.

As the federal appeals judges heard arguments here, the U.S. Supreme Court was set to meet to consider whether it would review a gay marriage case, but no decision was taken on Friday. Because the Cincinnati-based 6th Circuit created a split with other appellate courts in November by ruling in favor of a same-sex marriage ban, it is likelier that the Supreme Court will have the final word. 

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