Texas gay-marriage case will be important test for Louisiana

New Orleans will have a front-row seat in a legal duel that could have big consequences for same-sex couples in Louisiana.

This fight won’t involve any Louisiana couple directly, though. Instead, attorneys for two same-sex couples from Texas will be in New Orleans to argue before the 5th U.S. Circuit Court of Appeals, which hears federal cases from Texas, Louisiana and Mississippi.

They will argue — as they did successfully in a district court in San Antonio — that the Lone Star State’s constitutional amendment barring same-sex marriages violates the U.S. Constitution’s guarantee of equal protection under the law.

The outcome will reverberate in Louisiana because the 5th Circuit’s rulings are binding on lower courts in the states under its jurisdiction, including the district court where a handful of Louisiana couples are also trying to win the right either to marry or to have marriages performed legally in other states recognized here.

In fact, the 5th Circuit decision could amount to an important test amid the tide of victories that gay-rights advocates have been racking up recently in courtrooms across the country.

If the Supreme Court decides not to take up the question of state bans in the next few years, then it will be the circuit courts that decide the matter in each handful of states under their purview. And the 5th Circuit in New Orleans is generally considered one of the most conservative circuit courts.

Even so, supporters of gay marriage and some legal experts argue that judges here won’t have much wiggle room to disagree with their colleagues in Texas, Kentucky, Utah, Oklahoma and Virginia, where federal courts have all struck down constitutional amendments restricting gay marriage in the past few months.

“Not a single ruling since the summer has gone against those challenging the marriage bans,” said Kenneth Upton, senior legal counsel for Lambda Legal, a legal organization that argues for the civil rights of lesbians, gay men and people with HIV/AIDS. “All roads lead to the same conclusion.”

Upton said the state restrictions on same-sex marriage are falling so consistently because they were all, more or less, based on the Defense of Marriage Act, the law passed by Congress in 1996 that restricted same-sex couples from getting the federal benefits extended to traditional married couples. “These are the children of DOMA,” Upton said.

So when Supreme Court struck down the Defense of Marriage Act last summer, many viewed it as only a matter of time before state bans on same-sex marriage fell to the same logic.

In his majority opinion, Justice Anthony Kennedy wrote that the federal ban violated the 14th Amendment by treating one type of marriage as “less respected than others,” an argument that has echoed unmistakably in more recent decisions.

In the Texas case, U.S. District Judge Orlando L. Garcia wrote, “Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason.”

Opponents of gay marriage continue to push back against these decisions as an encroachment by the judiciary on a question that should be decided by voters. Many of the states that passed bans on same-sex marriage in the early 2000s, including Louisiana, did so with overwhelming majorities.

Court rulings in other states notwithstanding, gay-rights proponents in Louisiana may have a steep climb ahead of them. Two lawsuits aimed at invalidating the state’s ban on gay marriages have both been assigned to U.S. District Judge Martin Feldman, a Reagan appointee and friend of Justice Antonin Scalia, who wrote a strongly worded dissent to the high court’s DOMA decision.

And Louisiana is certain to appeal to the conservative 5th Circuit if the ban is struck down in Feldman’s court. State Attorney General Buddy Caldwell has already hired Kyle Duncan, from the Becket Fund for Religious Liberty in Washington, D.C., to defend the state’s position.

Duncan has had success arguing before the 5th Circuit on similar issues. As head of the state attorney general’s appellate division in 2009, he successfully urged the court to reject a lawsuit that would have forced Louisiana to issue a birth certificate listing two men as parents of a child that was born in Louisiana and then adopted by an unwed gay couple from New York.

Were the 5th Circuit to rule against them, gay couples hoping to gain marriage rights would have to hope the U.S. Supreme Court takes up their appeal, or at least that of a similar case. Legal experts say the state bans are written so similarly that one Supreme Court decision could effectively knock down all of them, and several challenges have now reached the circuit level.

“They’re all worded a little differently, but they all basically say the same thing,” said Michael Solimine, a law professor at the University of Cincinnati. “The legal reasons given in these cases are all the same: They violate the equal-protection or due-process clauses of the Constitution.”

One factor that could also trigger a Supreme Court review would be a so-called “split of authority,” or a situation in which two circuit courts rule in opposite ways on the same issue. In those instances, the Supreme Court often feels compelled to resolve the competing arguments.

Perhaps not by coincidence, one of the Louisiana lawsuits is written in language nearly identical to a similar challenge in Kentucky, where a federal judge ruled recently that the state must recognize valid same-sex marriages performed elsewhere. If appealed, that case would head to the 6th U.S. Circuit Court.