Next week, the 5th U.S. Circuit Court of Appeals will hear arguments in cases challenging anti-gay marriage laws in Texas, Louisiana and Mississippi. The cases will be decided by a panel of three federal judges, who were announced on the 5th Circuit’s website earlier this week. Though the 5th Circuit Court is considered to be one of the most conservative in the nation, there’s a chance three judges who will be hearing the gay marriage case may in fact decide in favor of marriage equality.
Last year, ThinkProgress predicted that the 5th Circuit was the court where marriage equality was least likely to prevail. But the announcement of the 3-judge panel has had them note that two of the three judges offer “a ray of hope to supporters of equality.” The judges who will be hearing the case are Patrick Higginbotham of Dallas, Jerry Smith of Houston and James Graves Jr. of Jackson, MS. The first two were appointed to the court by Ronald Reagan, while Graves is an Obama appointee.
Judge Smith is easily the most conservative of the panel, and is highly unlikely to vote in favor of marriage equality. He has jokingly referred to himself as a “right-wing activist” and has made derogatory comments about feminists. University of Richmond law professor Carl Tobias noted in an interview that Smith will probably support states’ prerogatives to ban same-sex marriage, adding that Smith is “still considered very conservative on a very conservative court.”
Judge Graves, on the other hand, is likeliest to rule in favor of marriage equality. Though has not previously ruled on same-sex marriage, the Obama appointee will likely side with prior judicial precedent that has overwhelmingly decided in favor of marriage equality.
That leaves Judge Higginbotham as the key vote. The Reagan appointee was once considered a solidly conservative judge, but in recent years has broke with conservatives on several decisions. He authored an opinion in favor of the University of Texas’s affirmative action program, and has criticized Texas’s handling of death penalty cases. Last summer, Judge Higginbotham told The Texas Lawbook, “When I joined the 5th Circuit, I may have been the court’s most conservative judge. Now, I’m probably left of center, even though I don’t think I’ve changed my views at all.” Judge Higginbotham’s slightly more moderate views may lead him to side with the overwhelming majority of judges who have ruled in support of marriage equality.
Law professor Carl Tobias agrees, noting that “The draw is a rather typical 5th Circuit panel…Higginbotham’s vote will be critical.” Nonetheless, the news of this panel gives supporters of marriage equality in Texas hope that perhaps our state will finally join the majority who have legalized equality once and for all.