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The Fifth Circuit finally hears the same sex marriage appeal

I am very cautiously optimistic.


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.


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.”

It’s still the Fifth Circuit, so anything giddier than “cautious optimism” is irrational. It does help that the state’s arguments are so patently ridiculous. With any other court, I’d feel reasonably confident. With this one, well, we’ll see. Trail Blazers and Hair Balls have more.

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One Comment

  1. Linkmeister says:

    Even if I were a judge predisposed against same-sex marriage, if an attorney made that argument before me I’d be strongly inclined to say “That’s the best you’ve got? Really?”