Federal Judge Upholds Louisiana Same-Sex Marriage Ban

For the first time since the Supreme Court’s decision in Windsor, a federal judge has upheld the constitutionality of a state same-sex marriage ban, in Louisiana. Judge Martin Feldman, a Reagan appointee, handed down a ruling that is really odd in several ways, even getting some basic concepts in constitutional law wrong. To wit:

In the Equal Protection joust, a court’s standard of review is central to this analysis. At play are three specialized lines of thought: rational basis, intermediate scrutiny, and heightened scrutiny. Rational basis is the least austere; heightened scrutiny the most arduous.

No, I’m sorry, that’s inaccurate. The highest level of scrutiny is strict scrutiny. Intermediate and heightened scrutiny are, for all practical purposes, the same thing. If you wrote this line in a law school essay, you would likely get marked down for it. This is a federal judge making such an elementary mistake. And then there’s this:

Plaintiffs also add that they suffer discrimination based on gender. Plaintiffs, as do most other federal courts confronted with these issues, equate this case with Loving v. Virginia, where the Supreme Court rightly condemned racial discrimination even though Virginia’s antimiscegenation marriage laws equally applied to both races. Plaintiffs’ argument betrays itself. Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.

Absolutely false. Search the 14th Amendment and see if you can find any mention of race whatsoever. It does not exist. It’s certainly true that the immediate reason why the 14th Amendment was passed was to prevent the states from violating the rights of citizens based on their race, but the text is much broader than that. And if you’re going to look at the background of the amendment to determine its meaning, you can’t ignore the fact that the framers of the amendment explicitly told voters that it would not affect state bans on interracial marriage. And is he seriously going to argue that the 14th Amendment does not protect against gender discrimination? The amendment refers to gender precisely as many times as it refers to race, which is not once.

This is incoherent nonsense from a sitting federal judge. But it does very little to slow down the inevitable legalization of same-sex marriage nationwide. The 5th Circuit Court of Appeals is already considering an identical ban in Texas and the Supreme Court will almost certainly take up several of those cases next term. By this time next year, I fully expect universal legal recognition of all same-sex marriages. You can read the full ruling here.

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  • John Pieret

    This is incoherent nonsense from a sitting federal judge.

    Not any worse than what Scalia keeps putting out. In fact this is taken from Scalia’s playbook. The 14th Amendment doesn’t cover sex or gender discrimination because the people who wrote it (despite writing in very broad language) were only thinking about racial discrimination, not discrimination against women and gays.

    http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html

  • chilidog99

    This judge should read the Posner opinion in the 7th circuit case. Posner rips the defendants case to shreds.

  • Alverant

    It sounds like he was looking for an excuse because saying “God said NO!” wouldn’t fly.

  • eric

    I’m wondering now whether the reason Posner and the 7th were so fast to put out their decision was to make it contemperaneous with this one.

    Prepare for irony meter overload:

    Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders–whether between two men or two women.

    Oh yes, this is totally not like Loving because it applies equally to both men and women. Wha????

  • gshelley

    I was astounded at just how bad this ruling was – he basically accepts the “it’s rational because the state has an in interest in children being raised with their biological parents” without even questioning if this is true, or if the marriage actually does this, or if extending marriage to same sex couples the way it is extended to couples to old to conceive would in any way defeat this purpose, he dismisses the similarities to Loving as Eric just mentioned by using virtually the same argument “it applies to everyone equally” that people used to try and support the racial marriage laws and even throws in the “well, what’s next, minor or close relatives?” argument only used by bigots

    If this is the best that the anti marriage people can come up with to argue their bigotry is constitutional, I’d be extremely surprised if Kennedy was willing to buy it. You have to be extremely committed to banning SSM to find this sort of drivel persuasive.

  • corwyn

    “it’s rational because the state has an in interest in children being raised with their biological parents”

    How could allowing same sex marriage POSSIBLY cause children to not be raised by their biological parents? Are gays STEALING children? Buying them from their parents? Entering into shame hetero marriages only to get children and them divorcing, getting child custody, and marrying their gay lovers?

    How does this square with child services removing kids from their abusive biological parents?

  • Chiroptera

    corwyn, #6: Are gays STEALING children?

    Yes, but only when they’re married.

  • Trebuchet

    This is incoherent nonsense from a sitting federal judge. But it does very little to slow down the inevitable legalization of same-sex marriage nationwide. The 5th Circuit Court of Appeals is already considering an identical ban in Texas and the Supreme Court will almost certainly take up several of those cases next term. By this time next year, I fully expect universal legal recognition of all same-sex marriages. You can read the full ruling here.

    I wish I could share your optimism, but I don’t. There are four absolutely sure votes agains SSM on SCOTUS today. And six Catholic justices, including the usual swing vote Kennedy.

  • eric

    How could allowing same sex marriage POSSIBLY cause children to not be raised by their biological parents? Are gays STEALING children?

    My guess is, the fundies think there’s a bunch of loveless marriages out there where one spouse is sticking around for the sake of the kid, but would leave if they could get gay married. One wonders how much of that is projection.

  • scienceavenger

    Louisiana’s laws apply evenhandedly to both genders–whether between two men or two women.

    Arguments like this should be in the dictionary next to “obtuse”. It’s like telling sheep visiting the land of wolves that they have no basis for objecting to the “no eating of plants” law because it applies equally to all, whether wolf or sheep.

  • Ichthyic

    People, believe it or not, from what I understand, this is a GOOD thing.

    evidently, disagreement within the federal appeals court circuit is the absolute most sure way to get SCOTUS involved in rapid fashion.

    oh, and to balance this idiot’s decision, Wisconsin and Indiana just went down to sanity:

    http://www.nytimes.com/2014/09/05/us/us-appellate-court-overturns-same-sex-marriage-bans-in-wisconsin-and-indiana.html

    The argument that allowing same-sex marriage will somehow undermine the protection of children in heterosexual marriages, the court said, “is so full of holes that it cannot be taken seriously.”

    If SCOTUS ends up maintaining the idea that states have any vested interest in straight only marriage after this, I will be quite surprised.

    the stage is all set.

    my guess? we will have a final ruling on it by SCOTUS within the next 8 months.

  • Dark Jaguar

    This is why leaving it to a court decision is a bit flawed. Not that I’m not happy every time one of these laws gets struck down, but the fact remains that there’s room for legal interpretation that ALLOWS such laws, and a supreme court battle could backfire in a big way just as well as do great for us.

    This is a job for a constitutional amendment that spells out and clarifies EXACTLY what rights homosexuals deserve, with no ambiguity. Remember, technically the amendments banning slavery and granting voting rights to certain groups weren’t strictly necessary. The constitution should have been clear enough, but there was enough room for selfish reinterpretation that they BECAME necessary, and I think this is another case. Heck, it’s been a surprisingly long time since the last amendment was added.

    Then again… It’d sure be a tough battle to make it so.

  • Ichthyic

    I do believe I have seen decent arguments for basically burning the constitution and rewriting it from scratch at this point, because of the glaring omissions and now vastly out of date information used to form it.

    I’d say wait on that though, until the latest round of “let’s empower authoritarian idiocy” runs its course.

    probably another 10 years to go before it finally fizzles.

  • whheydt

    Re: ichthyic @ #11…

    Yes, disagreements between different appellate circuits is often what it takes to get the USSC to take a case. However, that isn’t the case here. So far, *all* appellate circuits have agreed that banning SSM is unconstitutional.

    This particular case is a district judge going the other way. Only if he is upheld on appeal will there be a division among circuits.

    (And, I suspect, if all the circuits agree that banning SSM is unconstitutional, then the USSC will decline to take *any* of the cases and SSM will be nationwide by default.)

  • anubisprime

    Is anyone aware if an appeal has been filed on this case?

    It be passing strange that it seems all the other circuits are filing against the SSM discrimination and that one circuit upholds it, cos if upheld at appeal then definitive rulings follow via SCOTUS presumably, surely the judge would be dimly aware that if he was playing the jeebus in my sunbeam card hidden by some arcane gobblygook in the constitution…which he apparently screwed up anyway…then he has quite possibly shot himself in the buttocks.

  • briandavis

    Corwyn @6 says

    How could allowing same sex marriage POSSIBLY cause children to not be raised by their biological parents?

    I read Posner’s Indiana/Wisconsin decision yesterday. Neither of those states claimed in their appeals that allowing SSM would lead to fewer children being raised by their biological parents, or that there would be any negative effect on children if SSM were allowed. Instead their justification seemed to be “Even if SSM would be a good thing we aren’t required to allow it.” Their claim was that the purpose of allowing marriage is to encourage a good environment for child rearing, and that hetero couples are most likely to need these benefits. While it might be true that restricting marriage to only hetero couples does a poor job of insuring that marriage’s benefits are available to all families that need them and not wasted on childless couples who don’t need them, that just makes the law stupid and inefficient — not unconstitutional.

    Posner didn’t buy this argument. He saw it as a post-hoc rationalization attempting to find some constitutional justification for these laws. But this was a judgement call. There’s no guarantee that some other judge won’t accept these arguments.

  • eric

    Their claim was that the purpose of allowing marriage is to encourage a good environment for child rearing, and that hetero couples are most likely to need these benefits.

    The LA case was a summary judgment – the Judge had to find that there was no disagreement of fact between the parties before he’s even allowed to render that judgment.

    The factual claim that hetero couples are more in need of benefits than, say, single parents or gay parents is contested. In fact, it’s pretty ridiculous on its face to claim that a 2-income household is in greater need of tax rebates than a single-income household (like, say, a single mother). So the LA judge should never have even rendered the summary judgment, because the facts that the defense claimed are not only contested, they are frankly ridiculous.

  • Michael Heath

    briandavis writes:

    Posner didn’t buy this argument. He saw it as a post-hoc rationalization attempting to find some constitutional justification for these laws. But this was a judgement call. There’s no guarantee that some other judge won’t accept these arguments.

    The court wasn’t standing on their not buying the states’ post-hoc arguments on the purpose of marriage in IN and WI. They merely tore each state a new asshole on that weak-ass argument.

    Instead the court made it clear it stood solely on the equal protection clause of the 14th Amendment, where the states failed miserably to demonstrate why it was OK for them to discriminate against gay couples. This conclusion was so strong, the court argued it had no reason to even consider whether the states violated gay couples due process rights. The equal protection violations were sufficient to affirm the district court’s striking down both states’ anti-gay marriage bans.

  • whheydt

    Re: anubisprime @ #15…

    Plaintiffs lawyer said they are going to appeal. Note this was the decision of a *distrcit* court, not a (appellate) circuit court. So far, *every* appellate court has ruled for marriage equality. ON the other, not all circuits have ruled yet, and some circuits are considered to be “more conservative” than others, so we don’t know if there is going to be a split among the circuits.

    There is also the possibility that another state case, with a better and more coherent decision, could hit the same circuit as that LA is part of, and a ruling upholding marriage equality could make the LA ruling moot by overturning it without specifically saying so. (See actions in Colorado before their case was–has been?–heard at the appellate level.)

    Louisiana is in the 5th Circuit, together with Mississippi and Texas.

  • whheydt

    Here we go again. The 9th Circuit will hear oral arguments today covering Nevada (where the state is declining to defend their anti-SSM laws and the other side is being asked to show why they have standing to appeal at all–shades of the CA Prop. 8 case), Idaho, and Hawaii (look for a foreshadowing of what may happen in the LA case; district court upheld the anti-SSM laws and those bring the case want that decision overturned to keep it from being cited even though overturning it would be moot at this point). Article link….http://www.latimes.com/nation/nationnow/la-na-nn-gay-marriage-9th-circuit-idaho-nevada-hawaii-20140905-story.html