Texas, Louisiana and Mississippi present cases that could be among the last argued in federal court before the US supreme court takes up the issue

This article is more than 5 years old

This article is more than 5 years old

Three staunchly conservative Southern states were taking their last stands against same-sex marriage on Friday before the US supreme court is expected to settle the issue once and for all.

Louisiana went first, telling a federal appellate panel that giving gays and lesbians marriage rights is so risky and unproven that states must be allowed to protect their citizens against it.

Same-sex marriage is “a novel perception” in terms of recorded history, said Louisiana’s special counsel, Kyle Duncan.

Only 10 years of data has been gathered since Massachusetts became the first state to legalize same-sex marriages, he said – not enough to know the consequences if courts keep overturning state-imposed bans.

“There are now 36 states and the district of Columbia that allow same-sex marriage and nothing has changed,” countered Camilla Taylor, a Lambda Legal Defense Fund attorney representing seven couples challenging Louisiana’s ban.

Duncan was frequently interrupted and challenged by judges Patrick Higginbotham and James Graves, who seemed more skeptical of the state’s position than judge Jerry Smith.

The three-judge panel of the fifth US circuit court of appeals also was hearing arguments for and against marriage bans in Texas and Mississippi.

The cases could be among the last to be heard in federal court before the nation’s highest court decides the issue on its merits. The justices were meeting privately on Friday, eyeing the possibility of putting gay marriage on its calendar for this term.

With similar bans on gay and lesbian marriages being struck down around the nation, the appellate court in New Orleans took the highly unusual step of consolidating the three states’ appeals into a single session.

Federal district judges ruled against the bans in Texas and Mississippi, but US district judge Martin Feldman upheld Louisiana’s, a rare loss for gay rights advocates. More than 20 consecutive rulings had overturned bans in other states; Feldman’s was the first to uphold a state ban since the supreme court struck down part of the federal Defense of Marriage Act in 2013.

Texas voters approved a constitutional amendment banning gay marriage in 2005. US district judge Orlando Garcia ruled it unconstitutional, but allowed it to remain in effect pending appeals.

Mississippi has both a law and a constitutional amendment banning gay marriage, but US district judge Carlton Reeves overturned the state’s definition of marriage as only between a man and a woman after a legal challenge by two lesbian couples and a gay-rights group, Campaign for Southern Equality.

In November, the sixth US circuit court of appeals in Cincinnati upheld anti-gay-marriage laws in Kentucky, Michigan, Ohio and Tennessee. But four other appeals courts – based in Chicago, Denver, San Francisco and Richmond, Virginia – have ruled in favor of gay and lesbian couples, meaning 70% of the nation’s population now lives in states where same-sex marriages are recognized.

The split among the appellate courts makes an eventual intervention by the supreme court very likely.