Upton.Ken

Ken Upton, an attorney in the Louisiana case

Judge Patrick Higginbotham grew more and more skeptical of state arguments against same-sex marriage as the morning wore on.

One state attorney talked about “irrational prejudice.” Higginbotham asked the attorney what “rational prejudice” is. He questioned attorneys that this was a case of animus, even more dire than just irrational prejudice.

Patti Fink, who sat through oral arguments from Louisiana, Mississippi and Texas, said she struggled to sort out the twisted logic, but she said Higginbotham seemed to be having the same trouble.

Jonathan F. Mitchell, the attorney pleading the case for Gov. Rick Perry and the state of Texas, told the court, “Marriage is a subsidy.” He argued that because marriage is a subsidy, same-sex marriage doesn’t advance the state’s interest. Judge James Graves compared it to a school lunch subsidy and the argument made little sense.

The Louisiana and Mississippi cases revolved around procreation. When Mississippi attorneys argued that marriage rewards people for having families, Higginbotham said, “You don’t need an incentive to have sex.”

The Louisiana attorneys said that had New York not changed its marriage laws, the Windsor case (that found part of the Defense of Marriage Act unconstitutional) would not have happened.

Fink said attorney for the Mississippi plaintiffs Roberta Kaplan began her arguments by correcting the Louisiana attorneys. Kaplan explained Windsor was married in Canada and the United States was simply recognizing a marriage performed elsewhere as it does for any married couple.

When Louisiana attorneys argued it’s too soon to know whether same-sex marriage will work, Graves asked “What’s your magic number?” Kaplan debunked that argument in her presentation and said Massachusetts has had marriage equality for more than 10 years. During that time, the divorce rate has gone down and the number of straight couples getting married has remained constant.

When Texas tried to argue the “it’s too soon to know” argument, Higginbotham joined Graves in wanting to know what their number was. How long will it take them to know.

Graves also chided state attorneys for being against marriage just because it’s “scary” to them.

Mississippi argued, “We’re talking about a social policy issue, not a constitutional rights issue at this time.”

Higginbotham was skeptical of that. He closed the hearing with these words: “Those words, ‘will Mississippi change its mind’ have resonated in these halls before.”

— with reports from Erin Moore and Patti Fink