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Keep a sharp eye on Fifth Circuit Court of Appeals gay-marriage cases

NEW ORLEANS, Louisiana -- The always controversial, deeply conservative Fifth Circuit Court of Appeals will soon take up gay-marriage cases out of Texas and Louisiana, where two district judges came up with diabolically opposite rulings.

U.S. District Judge Orlando Garcia, based in San Antonio, declared in a ruling issued Feb. 26 that the Texas ban on gay marriage was unconstitutional. The 61-year-old judge, a former Texas state legislator, was nominated by President Bill Clinton and confirmed by the U.S. Senate in 1994.

But U.S. District Judge Martin Feldman, based in New Orleans, ruled on Sept. 3 that Louisiana's ban on gay marriage was legal. The 80-year-old judge, nominated by President Ronald Reagan, was confirmed by the Senate in 1983.

The conflicting rulings are precisely the type that higher courts love to entertain. So the Fifth Circuit has lumped the two cases together and ordered briefs to be filed by a certain deadline. The opening briefs in the Texas case have already been filed, and those for the Louisiana case are due on Oct. 17.

The appellate court has not yet set a date for oral hearings, but they could come sometime shortly after mid-October.

The Fifth Circuit is considered the most conservative appellate court in the United States. But with vacancies on the bench, and a Democrat in the White House, President Barack Obama is poised to move this appellate court toward the center. Meanwhile, the appellate court may have been keeping an eye on the U.S. Supreme Court, which decided today not to take up any of the five appeals cases based on appellate court rulings in cases involving Indiana, Oklahoma, Utah, Virginia and Wisconsin.

To date, all the appellate courts have upheld district court rulings that state bans on gay marriage are unconstitutional. Supreme Court Justice Ruth Bader Ginsberg has hinted that the high court might not take up the gay marriage issue until there is a conflicting opinion at the appellate level. And thus the conservative Fifth Circuit could be the one appellate court to buck the national trend toward accepting marriage equality.

As such, all eyes will be glued to the Fifth Circuit whenever it takes up the Texas and Louisiana appeals.

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Ken Williams is Editor in Chief of SDGLN and GLBTNN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.