Sunday, January 11, 2015

5th Circuit Seems Poised to Strike Down Gay Marriage Bans


This past week the U.S. Court of Appeals for the Fifth Circuit heard gay marriage ruling appeals from Texas, Louisiana, and Mississippi.  From what observers at oral argument report, it sounds as if the majority of the Court panel hearing the case is likely to rule that the bans are unconstitutional.  If such is the case, it is certainly sweet to envisage gay marriages taking place in Mississippi, home of the vile Traditional Values Coalition.  A piece at Towleroad looks at the questions posed by the Court and the ridiculous and non-creditable arguments put forth by the states to justify the bans rather than admit that they were motivated by anti-gay animus.  Here are highlights:
There are several great summaries out there about what happened yesterday at the Fifth Circuit, which heard marriage equality appeals from Texas, Louisiana, and Mississippi. Among others, I recommend the summaries from Chris Johnson at the Washington Blade and Chris Geidner at Buzzfeed. I would like to go one step deeper. I have listened to the audio from the oral argument (as you can too, here). As with other oral arguments, I find the most insightful indication of how a judge is leaning is not the number of questions asked or to which lawyer he asks more, but the language and tone of those questions. I found that especially true with Judge Higginbotham. . . .
On all the metrics, it looks like marriage equality will win the day at the Fifth Circuit.

Questions Asked To Lawyers. This metric is based on the notion that appellate court judges tend to ask more questions to the side of the argument they are inclined to oppose. That makes some sense: you ask questions because you are skeptical. As a related point, the side peppered with more questions presumably has the tougher case to make, which makes it more likely to lose.

Judge Higginbotham did not ask a single question to Camilla Taylor, the Lambda Legal attorney representing the plaintiffs in the Louisiana case. However, during a single 20 minute span during Louisiana's argument in favor of its ban, Judge Higginbotham went toe to two with Louisiana's attorney, Kyle Duncan, sentence for sentence. The attorney only barely spoke for more minutes than Judge Higginbotham during that time. Robbie Kaplan, the Paul Weiss attorney who represented Edie Windsor, also faced no questioning for the first part of her argument.

Judges Arguing With Each Other. This metric gets closer to evaluating a judge's views because it's not about the number of questions or statements, but to whom they are directed and the substance of that back-and-forth. This might be helpful in evaluating which way swing judges are leaning, if they talk at all.

Judge Higginbotham spoke a lot, and when he was arguing with anyone other than the lawyers from the states (see above), he was arguing with Judge Smith.

Judge Smith (right) spent his question time on two things: Baker v. Nelson, the 1971 case that ended in a simple, one-line denial from the Supreme Court that said that challenges to state refusals to recognize gay marriage bring up no federal issues, and the level of scrutiny for the bans. We've heard the Baker argument before: it was not only rejected, but laughed out of court by Judge Posner and others.

[B]oth Judge Higginbotham and Judge Graves, an Obama appointee who has a great voice for radio (per the audio of argument), dismissed it. Judge Graves did it with aplomb, suggesting that talking about a case from the 1970s (more than 40 years ago already) made him nostalgic for his afro and eight-tracks!

Judge Smith is a non-starter for marriage equality. He showed himself hostile to equality and, with all due respect, reason. He bore the brunt of Judge Higginbotham's judge-to-judge sparring, which may be an indication of where Judge Higginbotham is headed.

Tone and Language. This is a squishier metric because it doesn't count numbers, it looks at the language a judge uses.  . . . At the Fifth Circuit, you had a smattering of different language uses, but Judge Higginbotham and Judge Graves, the Obama appointee, used language that was considerably more modern and accepting of the equality of gay relationships. That is especially notable given that Judge Higginbotham is pushing 80 years old.

Now we have to wait for the ruling.

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