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January 10, 2015

Southern states could overturn gay marriage bans

Judges questioning legislation in Texas, Louisiana and Mississippi.

NEW ORLEANS - A U.S. federal appeals court on Friday appeared receptive to arguments in favor of striking down same-sex marriage bans in the conservative southern states of Texas, Louisiana and Mississippi.

Two of three judges on a 5th U.S. Circuit Court of Appeals panel in New Orleans expressed skepticism over the bans, with Judge Patrick Higginbotham noting a "sea change" on opinion over gay rights in recent decades and questioning why states wanting to incentivize procreation would allow sterile opposite-sex couples but not same-sex couples to marry.

After it was noted that Mississippi was unlikely to change its position on gay marriage in the near future, Higginbotham, an appointee of President Ronald Reagan, appeared to reference that state's history of racism.

"The words 'will Mississippi change its mind?' have resonated in these halls before," he said.

Judge James Graves, an appointee of President Barack Obama, also expressed discomfort with the bans in pointed questions to attorneys defending them, while Judge Jerry Smith, a Reagan appointee, cited precedent guiding the court to uphold the bans despite the likelihood of some people being harmed by them. 

Four regional federal appeals courts have struck down gay marriage bans following a Supreme Court decision in June 2013 expanding federal recognition of same-sex marriages, while the Cincinnati-based 6th U.S. Circuit Court of Appeals in November upheld bans in four states.

That ruling created a split among appeals courts and increased the likelihood the U.S. Supreme Court will take up the matter during the current term ending in June.

The Supreme Court met privately on Friday and took no action on five pending cases that could lead to an overarching ruling on whether states may ban gay marriage. The high court could still decide to hear the cases in the current term.

Proponents of the bans argue that states have the right to decide who can marry and that it is in the states' interests to promote marriage between a man and a woman.

U.S. district judges in Texas and Mississippi last year ruled those states' bans on gay marriage unconstitutional because they denied the couples equal protection under the law. Enforcement of those decisions are on hold pending the appeals.

In September, a U.S. district judge upheld Louisiana's gay marriage ban.