Yesterday U.S. District Judge Martin Feldman ruled Louisiana’s Constitutional Amendment banning gay marriage is legal and other judges went too far when they declared the bans on gay marriage to be unconstitutional. [read_more] Judge Feldman had two reasons for his decision. First the Supreme Court has never ruled that gays are a protected class and second, states have not passed the bans because of any animosity toward gays but because the states have a legitimate interest in defining marriage as between a man and a woman,
When a federal court is obliged to confront a constitutional struggle over what is marriage … the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation.
And so, inconvenient questions persist. For example, must the states permit or recognise a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minor marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs…..
“So, is there even any rational basis for Louisiana’s resistance to recognize same-sex marriages entered into in other states, or to authorize same-sex marriages in Louisiana? Plaintiffs contend not, and conclude that Louisiana’s laws and Constitution can only be supported by a hateful animus.
“Defendants rejoin that the laws serve a central state interest of linking children to an intact family formed by their biological parents. Of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus. This Court agrees.”
“Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents. Louisiana’s regime pays respect to the democratic process; to vigorous debate. To predictable controversy, of course. The fact that marriage has many differing, even perhaps unproved dimensions, does not render Louisiana’s decision irrational. Nor does the opinion of a set ofsocial scientists (ardently disputed by many others, it should benoted) that other associative forms may be equally stable, or the view that such judgments vilify a group (even though one finds them in a majority of the states, but not in all states). Even the fact that the state’s precepts work to one group’s disadvantage does not mandate that they serve no rational basis. The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid.”
4 comments
Judge Feldman makes the same legal error that each of the other District Court and Circuit Court Judges make: He uses the Supreme Court’s language in Windsor and infers that rational basis, intermediate scrutiny, or strict scrutiny applies.
The other federal judges facing this issue utilized strict scrutiny, which would almost assuredly strike down any ban on gay marriage.
Feldman (and Niemeyer in his dissent in the Fourth Circuit) apply rational basis scrutiny which would almost assuredly uphold a state ban on gay marriage.
The majority opinion in U.S. v. Windsor used the following standard “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. In determining whether a law is motived by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.” (Citations omitted).
These two sentences are the cause of the lack of clarity from the federal courts. Any reader who can definitively say that they are certain these sentences mean rational basis, intermediate, or strict scrutiny applies has the incredible power to read the minds of the majority in Windsor. Judge Feldman should be commended for at least devoting 5 pages to this quandary before committing the same error as the other federal judges and applying rational basis, intermediate scrutiny, or strict scrutiny.
ultimately, SCOTUS will decide. then we can move on.
So nice to have well educated and informed attorneys here to educate us. Thank you!
Bravo! Finally, a judge who’s interested in being a judge, and not a social engineer.