Supreme Court’s decision on whether to hear 6th circuit, Louisiana appeals could render 5th Circuit decision moot


WAITING ON THE COURT | Texas marriage equality plaintiff couples Cleopatra De Leon and Nicole Dimetman of Austin and Victor Holmes and Mark Phariss of Plano, leave the U.S. Federal Courthouse in San Antonio last year. They are in New Orleans this week for the 5th Circuit hearing on their case. (Eric Gay/Associated Press)


DAVID TAFFET  |  Staff Writer

Three judges from the 5th Circuit Court of Appeals are set to hear three marriage equality cases Friday morning, Jan. 9. But the 5th Circuit’s hearing could turnout to be a moot point if the U.S. Supreme Court — meeting at the same time — decides to hear a marriage case from Louisiana or one of six cases on appeal from the 6th Circuit.

Most marriage equality supporters were not hopeful about a positive outcome from the 5th Circuit, which is generally considered the most conservative appeals court in the country. But after the panel was chosen, some marriage equality supporters did find room for optimism.

Two of the three judges were appointed by President Ronald Reagan, and the third by President Barack Obama. The Obama appointee is expected to come down on the side of equality, and one of the Reagan appointees is expected to be solidly against. But the second Reagan appointee is considered a swing vote.

Reagan appointee Judge Jerry E. Smith is expected to vote for a state’s right to discriminate against same-sex couples. He was one of two judges who upheld a Texas law requiring abortion providers to upgrade to surgical centers.

In a case involving sexual harassment heard en banc (by the entire court rather than a three-judge panel), the majority found for the plaintiff. But Smith wrote a dissenting opinion saying the majority “take[s] a deep bow at the altar of the twin idols of political correctness and social engineering.”

While most court observers call Smith’s questioning from the bench fair and probing, his decisions don’t come down on the progressive side.


Judge James E. Graves Jr.

The second judge hearing the case is James E. Graves Jr., appointed by Obama and one of the newest members of the 5th Circuit. In one case, he sided with a woman seeking time-and-a-half pay for overtime work. In another, he ruled against Transocean in a dispute involving the 2010 explosion of the Deepwater Horizon oil rig.

In 2013, the court found two Texas high school coaches in Kilgore immune from prosecution when they disclosed a student’s sexual orientation to her parent, because there’s no law stopping school officials from discussing a student’s private matters. Graves wrote the dissent in that case. He argued the U.S. Supreme Court and lower courts have recognized privacy rights under the 14th Amendment.

Despite being one of the newer members of the court, Graves doesn’t defer to the court’s older, more conservative members.

Judge Patrick E. Higginbotham, appointed by Reagan, is considered the swing vote on the panel.

In a decision last year, he ruled University of Texas’ race-conscious admissions program is legal because it is a narrowly tailored as part of a broader policy and can increase diversity within minority groups. Conservatives wanted Higginbotham to throw out any race-based university admissions.

He upheld the legality of the display of the 10 Commandments monument on the Texas Capitol grounds on the basis of its secular history. Conservatives would have preferred a win based on religious freedom.

In 2000 and 2006, Higginbotham changed voting districts that forced a number of liberal Democrats out of office. The new boundaries were seen as more fair than the maps drawn by the Texas Legislature, but he stuck to the Legislature’s intent to gerrymander and drive Democrats from office. Both sides saw his new maps as a compromise and neither side was particularly happy.

The three cases that will be heard by the three-judge panel Friday are similar, although the U.S. district court in Louisiana upheld the state’s right to exclude same-sex couples from marriage while the Texas and Mississippi courts struck down discrimination.

Two couples are party to DeLeon v. Perry, the Texas case.

Plano couple Vic Holmes and Mark Phariss sued the state for the right to marry, and their case was consolidated with the lawsuit filed by Austin couple Cleo DeLeon and Nicole Dimetman asking that the state be made to recognize their wedding in Massachusetts.

In February 2014, U.S. District Judge Orlando Garcia in San Antonio declared a 2003 law and a 2005 constitutional amendment banning same-sex marriage in Texas to be in violation of the U.S. Constitution.

The court set the Jan. 9 date for the hearing after Dimetman asked for an expedited hearing, because she is pregnant and would like a decision before the baby is born to avoid the extra costs of adoption by her wife.

The Mississippi and Louisiana cases are similar.

In Mississippi, Campaign for Southern Equality v. Bryant involves two couples, one of which wants to marry in Mississippi and the other of which wants their Maine wedding recognized in the state. U.S. District Court Judge Carlton W. Reeves ruled in November that Mississippi’s 2004 law banning same-sex marriage is unconstitutional.

In Louisiana, Judge Martin Feldman became the first federal judge since the June 2013 U.S. v. Windsor decision — which struck down part of the Defense of Marriage Act — to rule that a state has a right to discriminate. In October, Lambda Legal signed on as a counsel on that case and asked the U.S. Supreme Court to review it.

While the 5th Circuit hears oral arguments on its three cases, the U.S. Supreme Court will be meeting in private conference to decide whether to hear a marriage equality case this session.

In October, the justices decided not to hear any of the cases that had then been appealed to the court. Judges in all those cases — both at the trial court level and the appellate court level — had ruled in favor of marriage equality, and the Supreme Court’s decision not to hear those appeals triggered a wave of new marriage equality states. Stays on all those rulings were lifted, and the appellate court rulings were extended to take affect in other states in their circuits where laws prohibited marriage equality.

Since then, the 6th Circuit ruled in six cases — one each in Michigan and Tennessee and two each in Kentucky and Ohio — and those decisions have been appealed to the U.S. Supreme Court. Also, the Louisiana case being heard by the 5th Circuit was simultaneously appealed to the high court by Lambda Legal.

The Supreme Court could announce its decision on whether or not to hear an appeal in any of those cases immediately, or it could wait until next week.

The court has three options: take a case and schedule a date to hear it; dismiss the cases and allow the lower court rulings favoring discrimination in Louisiana, Michigan, Ohio, Kentucky and Tennessee to stand; or make no announcement regarding these cases, allowing them to roll over to the next conference.

Lambda Legal Supervising Senior Staff Attorney Ken Upton said he expects the Supreme Court to take one of the cases, adding that he would not be surprised if the 5th Circuit chooses not to issue an opinion on the cases it’s hearing.

Upton said if the 5th circuit upholds a state’s right to discrimination, that ruling is likely to be overturned by the U.S. Supreme Court — and judges tend not to like having their rulings overturned.

If the 5th Circuit judges uphold marriage equality, at this point there’s little they could write that’s new but they’d have to spend quite a bit of time writing a 100-page decision that repeats what other courts have already said.

On the other hand, Upton said, the 5th Circuit may want to weigh in on the side of progress and issue a pro-equality ruling in advance of the Supreme Court’s ultimate ruling, which is expected to come down on the side of equality, given the court’s decisions so far to let pro-equality rulings stand and not to extend a stay preventing the start of same-sex marriages in Florida on June 5.

This article appeared in the Dallas Voice print edition January 9, 2015.