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.
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.