Patti Fink recounts memorable moments from the 5th Circuit court hearing on marriage equality

Real harm. Democratic process. Immutability. Legitimate state interest. Animus. Equality. Respect. Dignity. Personal liberty. Personal dignity. Equal dignity.

These words filled the West Courtroom of the John Minor Wisdom Federal Courthouse in New Orleans on Friday, Jan. 9, as attorneys for both sides in marriage equality cases from Louisiana, Mississippi and Texas stepped to the lectern to present their oral arguments to a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit.

The attorneys for each state added their own Southern mix of tired old arguments, urging the judges to uphold each state’s ban. You know them; we’ve heard them over and again, and not just in these marriage cases but all of our lives:
“You can’t procreate” was the big one. “The state has the right to limit marriage to one man/one woman.” “It’s not discrimination; it’s furthering the state’s interests.” “It’s not about hate or moral disapproval of gay people, it’s about preserving ‘traditional marriage.’”

The attorneys representing each state’s plaintiffs were compelling and logical, and in urging the judges to rule each state’s ban unconstitutional, these attorneys built their arguments on our humanity and our equality in simply being. While the states’ attorneys spoke about us as almost non-humans, as objects or abstract theoretical concepts, “our” attorneys infused our humanity into their arguments as their starting place, speaking about our love, our lives, our children, our realness as human beings, our equal dignity.

And “we” packed the courtroom during each of the three cases. All of the plaintiffs for each state were present, and while I sat in the press section inside the very small courtroom, the remaining pews and several rows of chairs added by court staff filled and re-filled for each case. Staff also made available two overflow rooms with live audio.
My partner, Erin Moore, was outside while I was inside, and she recounted that the harried court staff told her they’d never seen anything like it. They’d never dealt with that many spectators and media before.

Inside I didn’t see a single right-wing reporter or spectator.

Louisiana went first, and after the case was submitted the court staff cleared the courtroom of spectators in order to allow Mississippi folks in for their case. Suddenly there was a sea of lesbians in jeans and colorful golf shirts, and numerous small children peppering the pews, sitting with their gay parents.

“Our” attorney noted to the court from the lectern, “Mississippi actually has the highest percentage of gay families with children in the nation — 29 percent. … But the state has offered not a single reason why those children should be treated worse than the children of straight parents. … There is no possible explanation that passes any test of logic, common sense or even simple human decency for why the state should not want those children to have the same benefits and opportunities that other children do.”

Earlier in that case, the state’s attorney told the court that Mississippi’s “legitimate government interest” was to “promote stable family relationships of those who procreate naturally” — and then one of the babies in the gallery cried out loudly, prompting Judge James Graves to exclaim, “On cue!!”

Amid the laughter, the state’s attorney pointed to the gallery and blurted out, “That child needs a stable family relationship!” Yes, yes that child does, sir — and her parents should be able to marry!

The contrast between the sides could not have been more stark. I urge Dallas Voice readers to listen to each of the oral argument recordings — links below — for a full appreciation of how very well we were represented and how utterly ridiculous the states’ arguments were.

Interestingly, two of the three attorneys arguing for marriage equality were women.

In Louisiana’s case which differs from the other two in that the plaintiffs lost and thus appealed the lower court ruling, Lambda Legal’s Camilla Taylor very ably asserted a clear case for equality and was remarkably deft in fielding questions from the judges.

In Mississippi’s case, which is similar to the Texas case, Roberta Kaplan was a commanding presence at the lectern, vigorously and forthrightly representing her clients and bantering with the judges with articulate, cogent logic and even humor. (Indeed, it was my impression that Judge Jerry Smith — the panel’s conservative — was a tad star-struck to be engaging the attorney who won the landmark civil rights case United States v Windsor, in which the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in 2013.)

Akin Gump attorney Neel Lane represented the Texas plaintiffs, speaking eloquently for marriage equality and exposing the utter irrationality of our state’s arguments in nimble, crisp, plain language.

The three federal judges, for their part, peppered the attorneys with questions challenging their assertions and, if those questions are any indication of how they will rule, then “we” will win, hands down.

Their questions and comments mocked the states’ arguments and underscored the overt desperation in each, often with great humor. The poignant zinger of the day from the bench was from Judge Patrick Higginbotham: In response to the Mississippi attorney’s assertion that “We’re talking about a social policy issue, not a constitutional right issue yet,” adding that if Mississippi changes its mind then voters can repeal the ban, Higginbotham observed, “Those words — ‘Will Mississippi change its mind?’ — have resonated in these halls before.”

Ouch. The attorney was dumbstruck and, while the room gasped, he bumbled, “Your Honor, if I may conclude, the state asks that the court reverse the district court’s preliminary injunction,” and sat down.

It is difficult to select from the amazing, plainspoken quotes from “our” attorneys or from the straw-grasping absurdities from the state attorneys because they are far too numerous. But here are a few of the best:

• In arguing that in Texas “marriage is a subsidy” to incentivize procreation and in explaining “the fear requiring the state to ‘wait and see’” on same-sex marriage, the state’s solicitor general said: “Those who oppose same-sex marriage are animated by a concern that it will reinforce the notion that marriage exists not only primarily, but perhaps almost exclusively, as an institution to celebrate the love and commitment of two people. And in doing that, it could undermine the idea that marriage exists to encourage procreation and to encourage the creation of new offspring.”

Neel Lane, attorney for the Texas plaintiffs reeled: “What you just heard, that definition of marriage from this lectern, is an incredibly narrow, blinkered view of marriage that would be unrecognizable to anyone who has experienced it, witnessed it, or aspires to it … And that radical redefinition of marriage is not present in the legislative record anywhere.”

• Roberta Kaplan, who told the judges, “There are many ways to decide this case, all of which we win,” had quite a few keepers. Among them:

“As Justice Kennedy said, ‘Times can blind.’ Times have blinded this country about African-Americans. Times have blinded this country about women. And times have blinded this country about gay people.”

“There is no rational reason to believe that the exclusion of gay couples from marriage somehow incentivizes straight couples to do anything at all. … It is fantasy to assume that any young woman who accidentally gets pregnant will decide to marry the father of her child because my clients cannot.”

“The Supreme Court made it clear in Windsor that gay people have dignity under the law that is equal to the dignity of everyone else. Once you accept the fact that gay people have equal dignity, then any purported justification for the government to treat them differently in marriage is unconstitutional, no matter what level of scrutiny applies. … Once you accept that gay people are equal to everyone else, then all these ‘reasons’ really make no sense.”

Indeed. Equal dignity. Our rights begin and end with equal dignity. Period.

Patti Fink is a longtime LGBT activist at the local, state and national level. She represented Dallas Voice as a special correspondent at the 5th Circuit Court of Appeals hearing on Jan. 9.


Listen to recordings of oral arguments at these links:



This article appeared in the Dallas Voice print edition January 16, 2015.