What to Expect as 5th Circuit Hears Final Arguments in Same-Sex Marriage Case

The Case: DeLeon vs. Perry features two sets of plaintiffs fighting for two distinct rights. Cleopatra DeLeon and Nicole Dimetman are already married. The couple seeks to force the state of Texas to recognize their Massachusetts union and grant them the rights afforded to opposite-sex married couples from other states. Victor Holmes and Mark Phariss seek the right to marry each other in their home state, Texas. The state argues that Proposition 2 -- a referendum passed in 2005 that defines marriage in the state as only the union of one man and one woman -- is constitutionally affirmed by the 10th Amendment.

See also: What to Expect as the 5th Circuit Hears Final Arguments in the Texas Abortion Case

In February, U.S. District Court Judge Orlando Garcia ruled Texas' same-sex marriage ban unconstitutional, saying he could find no rational reason for the state to restrict marriage. Arguing for the state, Assistant Texas Solicitor General Mike Murphy said that the law wasn't meant to discriminate against gay people, but to "promote responsible procreation." Garcia immediately stayed his ruling pending appeal. Oral arguments will be heard by the 5th U.S. Circuit Court of Appeals on January 9.

What's at Stake? The right of every Texan to be seen as equal under the law when it comes to their personal relationships.

If the court rules in the state's favor, it would join the 6th Circuit in the small group of federal courts that have ruled against same-sex marriage, hardening the circuit split. The split virtually guarantees that the Supreme Court will hear DeLeon or a similar case and further define the SCOTUS' position on marriage equality.

The Judges: Judges Jerry E. Smith, James E. Graves and Patrick Higginbotham will hear the arguments. Smith is an extremely conservative activist judge appointed by Ronald Reagan. He has been lauded by Rush Limbaugh for "mak[ing] himself a target of the regime." Without fail, he rules with conservatives on partisan issues. Graves was appointed in 2011 by President Obama. Earlier in December he issued a stay of a ruling by a Mississippi federal judge that would've allowed same-sex marriage in that state -- the Mississippi case along with a similar Louisiana case, will also be heard by the 5th Circuit on January 9.

"We have little difficulty concluding that the legal questions presented by this case are serious, both to the litigants involved and the public at large, and that a substantial question is presented for this court to resolve," Graves wrote. "In reaching the merits of this appeal, this court will be confronted with a potential conflict between the state's historic 'power and authority over marriage' and 'the constitutional rights of persons' to make decisions in the most intimate and personal aspects of their lives."

Higginbotham is, like Smith, a Reagan appointee. He was appointed to the 5th Circuit in 1982 and took senior status, along with the lighter workload that comes with it, in 2006. Unlike Smith, he is a judge first rather than a member of the Republican tribe. In August, he wrote an opinion in support of the University of Texas' race-conscious admissions program and has frequently overturned death sentences during his time on the bench. With regard to the current composition of the 5th Circuit, perhaps the most conservative in the country, he has described himself as "left of center."

Smith likely will vote for the state in this case. Graves and Higginbotham's spots on the panel make the circuit's ruling less of a sure thing.

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Stephen Young has written about Dallas news for the Observer since 2014. He's a Dallas native and a graduate of the University of North Texas.
Contact: Stephen Young