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Republican Attorneys General In Louisiana, Texas Vow To Continue Defending 'Institution' Of Marriage In Face Of Obvious Defeat

  Caldwell

Republican attorneys general in Louisiana and Texas say they plan to keep fighting even if the 5th U.S. Circuit Court of Appeals stirkes down bans on same-sex marriage in the two states. 

As we've reported, such an outcome appears likely based on oral arguments, assuming the 5th Circuit decides to rule rather than waiting for the Supreme Court to settle the issue. 

Louisiana Attorney General James D. "Buddy" Caldwell (above left) issued a statement late Friday: 

Through the democratic process, Louisiana citizens have previously voted to establish this definition of marriage and to add it to the state’s constitution.   

Louisiana's Attorney General prevailed at the trial court level and was the first attorney general in the nation to win on this issue. Today's appearance was in support of the trial court's favorable decision. 

Attorney General Caldwell said, “I was joined at counsel table today by constitutional law experts Kyle Duncan and Mike Johnson, both of whom I retained to assist my office with this important task of defending our constitution, which is the expression of the will of our Louisiana citizens.

"As I've said previously, as Louisiana’s attorney general, I will do everything in my power to uphold the will of our citizens and the right of states to manage their own affairs.”
Texas Attorney General Ken Paxton (above right), who was sworn in this week to replace GOP Gov.-elect Greg Abbott, also posted a statement

“In 2005, Texans overwhelmingly supported a constitutional amendment defining marriage as the union of one man and one woman," Paxton said. "I am committed to defending the Texas Constitution, the will of our citizens and this sacred institution.”

Mississippi's attorney general and governor have been less outspoken about defending the state's marriage ban, saying only that they believe it's their duty to defend state laws, and I was unable to find statements from them about oral arguments. Their apparent silence may reflect the growing trend of resignation to marriage equality even among conservative Republicans, who recognize it's a losing cause and no longer politically advantageous. 

Screen shot 2015-01-10 at 11.10For example, neither Texas Gov. Rick Perry nor Gov.-elect Abbott, both Republicans who've vigorously defended the state's marriage ban in court and elsewhere, had anything to say about Friday's hearing. Moreoever, there didn't appear to be any organized anti-gay presence outside the courthouse in New Orleans — the site of a historic hearing on same-sex marriage in the heart of the Deep South. Instead, the opposition was represented in the media by a smattering of well-paid anti-LGBT operatives, such as Texas Values President Jonathan Saenz (right). 

But it appeared Saenz, whose wife famously left him for a woman, was determined to compensate for the poor turnout with some over-the-top rhetoric. From Talk Radio 1190 AM in Dallas: 

Advocates call it a matter of equality, but Saenz disagrees.

"Redefining marriage equals private businesses being forced to fund and participate in an issue that's not even settled by the Supreme Court," he says. 

"Redefining marriage equals men entering little girls' bathrooms, and redefining marriage equals pastors being persecuted," Saenz says referencing the battle over transgender restroom rights in Houston.

Saenz says the Sixth Circuit already upheld gay marriage bans.

"Marriage between one man and one woman has such a long tradition that it’s measured by millennia, not centuries or decades," he says.

More from Saenz in OneNewsNow:

"The tradition, until recently, had been adopted by all governments and major religions of the world," notes Jonathan Saenz of Texas Values. "That's how settled the issue of marriage has been in our country and in our world. And in Texas we dealt with this issue before and settled it at the polls the way it should, when voters voted 76 percent in 2005.

Saenz contends, "It's really a shame that all of that legitimate work could be undone by the stroke of a pen of a few federal court judges, but I think that a lot of people and a lot of legal experts believe and agree that the federal Fifth Circuit Court of Appeals will rule in favor of state marriage laws. That will be for Texas, that will be for Louisiana and Mississippi, and that will be a significant turning point in the debate and the discussion on this issue."

Saenz adds that homosexuals claim equality as the overpowering argument, but in states where same-gender "marriage" is legal, it is used as a battering ram against Christians and Christian-owned businesses. He suggests that is hardly equality.


Robbie Kaplan Argues for the Freedom to Marry at 5th Circuit Today: What To Watch For

BY ARI EZRA WALDMAN

KaplanRoberta Kaplan, the Paul Weiss attorney who was Edie Windsor's attorney, is in New Orleans to argue for marriage equality at the Fifth Circuit. The cases on appeal come from Texas, Mississippi, and Louisiana, the last of which, by the way, has a case under simultaneous consideration for Supreme Court review. In Texas and Mississippi, federal judges struck down marriage discrimination laws as unconstitutional; in Louisiana, a startlingly wrongheaded and overtly antigay opinion upheld that state's ban. The Fifth Circuit is the next stop.

The Fifth Circuit Court of Appeals, which covers just the three states involved in these marriage equality cases, is a conservative court: it has more judges appointed by Republican presidents than Democrats. But, as we know, that does not always signal an anti-gay opinion. Judge Posner, who wrote a breathtaking pro-equality decision at the Seventh Circuit, was appointed by President Reagan.

President Reagan also appointed two of the judges on the Fifth Circuit panel: Patrick Higginbotham and Jerry Smith. The third judge, James Graves, is an Obama appointee. I must admit that I don't know much about his background. Judge Graves was the only African-American judge to serve on the Mississippi Supreme Court during his tenure and he spent most of career in public service in Mississippi. A short review of some of his decisions in Mississippi reveal few controversial views. His opinions are well-reasoned.

Judge Smith has been a reliable conservative -- read: right wing conservative -- for much of his time on the federal bench. Judge Higginbotham, however, is a bit of a wild card. In fact, he reminds me, in certain ways, of Judge Posner.

Both are well-respect in the judiciary and among court watchers and lawyers. I never argued in front of him, but several colleagues did and they spoke of him as fair and not always an automatic supporter of our corporate clients. Judge Higginbotham's name was floated as a possible alternative that Senate Democrats would be willing to confirm if President Reagan withdrew Judge Robert Bork's nomination to the Supreme Court (the seat would ultimately go to Justice Kennedy). More recently, he upheld the University of Texas's affirmative action plan. His opinions may not offer the same doctrinal coherence as Judge Posner's: Judge Posner is a brilliant economic mind whose decisions focus on efficiency, practicality, and individual freedom. But he is not beholden to one political party.

Also, they have both said similar things about the conservative tilt of the judiciary. Posner is famously frustrated with Republicans in politics and Republican judges on the bench, many of whom he says are too radical on the right. Judge Higginbotham also gave an interview suggesting that the court has moved away from him since he arrived: he was once considered a conservative; now, compared to others, he isn't.

Judge Higginbotham is the swing vote. He is a moderate and his opinions appear reasonable. I would watch his questions.

Stay tuned to Towleroad for more analysis. Good luck, Robbie!

***

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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


Marriage Equality Cases from Louisiana, Texas, and Mississippi Go Before 5th Circuit Today

In addition to the U.S. Supreme Court considering the four marriage cases we lost at the Sixth Circuit, there is a lot more going on in marriage equality news to follow today.

HigginbothamIn New Orleans, the 5th Circuit federal appellate court will hear oral arguments in the Louisiana marriage case we lost at the district court level in September (remember Judge Martin Feldman's strange, hateful opinion?) beginning at 9 am. The 5th Circuit will also hear oral arguments in the Texas marriage case we won at the district court level in February. The 5th Circuit will hear oral arguments in the Mississippi marriage case we won in November at the District Court level.

Oral arguments in each of those hearings will last for 30 minutes, and the Court will hear from DOMA lawyer Robbie Kaplan in the Mississippi case.

Earlier this week we took a look at the three judge panel - James E. Graves Jr., Patrick E. Higginbotham (pictured) and Jerry E. Smith - who would be hearing the cases today. Read up on it here.

Stay tuned...


Gay Couple Fighting for Marriage in Mississippi Speaks Up Ahead of Crucial Hearing: VIDEO

MS

This Friday, January 9, the 5th Circuit court in New Orleans will hear oral arguments in the appeal of the Mississippi ruling that struck down the gay marriage ban in that state on November 25.

The ruling was stayed pending appeal but goes before the federal appellate court this week along with cases from Texas and Louisiana.

USA Today did a lovely interview with plaintiffs Becky Bickett and Andrea Sanders in the couple's home in Pass Christian, Mississippi. Bickett and Sanders applied for and were denied a marriage license from the state last March.

The paper reports:

Bickett and Sanders have it harder because of their economic circumstances. They were literally thrown together after Hurricane Katrina destroyed their parents' Gulf Coast homes in Bay St. Louis in 2005. Their first home together was a Federal Emergency Management Agency (FEMA) trailer.

Now the couple owns a single-wide trailer on three acres north of the coast, but they are struggling financially. Bickett was laid off from her job as a geospatial analyst and is looking for full-time work. Sanders, with a degree in family relations and human development, is staying home with the toddlers.

They dream of having a big family, but without legalized gay marriage, Sanders isn't considered to be Owen's and Adrian's mom. They cannot adopt or even be foster parents as a couple.

Watch the wonderful interview, AFTER THE JUMP...

Continue reading "Gay Couple Fighting for Marriage in Mississippi Speaks Up Ahead of Crucial Hearing: VIDEO" »


Handicapping The 5th Circuit: Are Gay Marriage Opponents About To Hit Rock Higginbotham?

Judge_higgenbotham

A three-judge panel of the 5th U.S. Circuit Court of Appeals will hear oral arguments Friday, Jan. 9 in same-sex marriage cases from three states — Lousiana, Mississippi and Texas

Earlier this week, the 5th Circuit revealed judges for the panel — James E. Graves Jr., Patrick E. Higginbotham (above) and Jerry E. Smith.

Higginbotham and Smith are Reagan appointees, while Graves is an Obama appointee. The 2-1 split reflects the overall makeup of the 5th Circuit, which has 10 Republican appointees and five Democratic appointees. 

Although the 5th Circuit is considered to be among the most conservative federal appeals courts in the country, there is hope for a favorable ruling. From ThinkProgress:  

Supporters of equal rights for gay couples can almost certainly give up on Judge Smith. Smith once described himself, albeit somewhat jokingly, as a former “right-wing activist.” He also once described feminists as a “gaggle of outcasts, misfits and rejects.” ...

Judge Graves, meanwhile, is a much newer addition to the federal bench, so his views are less defined. Nevertheless, the overwhelming majority of federal judges to consider marriage equality cases since the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013 have sided with gay rights. If would be surprising if an Obama-appointed member of a federal appeals court joined the few outliers who broke with this consensus.

That leaves Judge Higginbotham. ... 

The Dallas Morning News has more on Higgonbotham, who is now widely expected to provide the swing vote: 

Once considered solidly conservative, Higginbotham has irritated some conservatives with his rulings critical of Texas judges’ handling of death-penalty cases and a recent decision in which he wrote an opinion upholding the University of Texas’ race-conscious admission policy.

Last summer, Higginbotham told The Texas Lawbook’s Mark Curriden that the New Orleans court has shifted considerably to the conservative side during his 32 years as a member.

“When I joined the 5th Circuit, I may have been the court’s most conservative judge,” he said. “Now, I’m probably left of center, even though I don’t think I’ve changed my views at all.”

On the same day the 5th Circuit hears oral arguments, the U.S. Supreme Court will meet to decide whether to hear marriage cases from five states, possibly paving the way for a ruling that would effectively render the 5th Circuit's decision moot.  

But even assuming the high court decides to hear at least one of the cases, the 5th Circuit panel has a chance to either harden the existing circuit court split or provide a huge momentum boost for marriage equality that would also be a devastating blow to gay-rights opponents. 


Apple CEO Tim Cook Makes 'Substantial' Contribution To HRC Campaign Targeting His Home State Of Alabama

Six weeks after coming out publicly, Apple CEO Tim Cook has made a "substantial" contribution to a campaign aimed at bringing LGBT equality to his home state of Alabama. 

Cook.TimThe Human Rights Campaign announced Cook's contribution Thursday to its Project One America, an $8.5 million, three-year effort targeting Alabama, Arkansas and Mississippi. Cook grew up in South Alabama and attended Auburn University. 

The Associated Press reports: 

The amount of Cook's contribution to the Washington-based Human Rights Campaign wasn't disclosed, but the advocacy organization called it "substantial." ... 

The campaign includes advertising on TV and elsewhere, direct-mail fliers and staff members hired in each state.

"We hope Tim Cook's substantial personal investment inspires others to support this vital and historic project," Jason Rahlan, a spokesman for Human Rights Campaign, said in an email.

President Chad Griffin wrote on HRC's blog

When Tim first learned about HRC's Project One America – our bold, comprehensive campaign to dramatically advance equality for LGBT Americans in Alabama, Arkansas and Mississippi – he said, “I'm in.” Thanks to his generous personal financial investment in the program, together we will move the needle forward at the local and state level, tearing down misperceptions and providing concrete protections for those who need it most.

Shortly before coming out, Cook delivered a speech in Montgomery in which he said Alabama was moving "too slow on equality for the LGBT community." The state's only openly gay lawmaker recently announced she plans to name a nondiscrimination bill after Cook in the upcoming legislative session. 

Cook, who heads the world's largest corporation, is the only openly gay CEO of a Fortune 500 company. 

RedIn related news, Cook announced in an email to employees that Apple's Product (RED) holiday campaign raised over $20 million for AIDS research, Business Insider reports: 

"I’m thrilled to announce that our total donation for this quarter will be more than $20 million — our biggest ever — bringing the total amount Apple has raised for (PRODUCT) RED to over $100 million. The money we’ve raised is saving lives and bringing hope to people in need. It’s a cause we can all be proud to support," Cook wrote. 

Watch a video for HRC's Project America campaign in Alabama, AFTER THE JUMP...

Continue reading "Apple CEO Tim Cook Makes 'Substantial' Contribution To HRC Campaign Targeting His Home State Of Alabama" »


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