The air of seeming inevitability that had developed around the idea of a successful constitutional challenge to state bans on gay marriage was punctured Wednesday by a federal judge in Louisiana. After 21 consecutive decisions favoring marriage equality in federal district and appellate courts since the Supreme Court struck down part of the Defense of Marriage Act, federal District Judge Martin L. C. Feldman upheld the ban on same-sex marriage that Louisiana voters overwhelmingly supported in 2004. His opinion offers no more certain guide to how the Supreme Court will view the issue when, inevitably, it takes up marriage equality than do the score of decisions before it. As Judge Feldman noted, the court's DOMA decision offered some hope to both sides. But this new ruling does provide a preview of the ground on which that eventual case will be fought.
Judge Feldman's 32-page decision covers a number of points of law, but the two most consequential are his discussions of how a same-sex marriage case should be considered under the Constitution's Equal Protection Clause and what preference should be given to policy choices made through the democratic process rather than judicial interpretation. In both respects, his opinion is an outlier, but an instructive one.
The 14th Amendment says that no state shall "deny to any person within its jurisdiction the equal protection of the laws" — that is, those who are similarly situated should be treated the same. But a law that discriminates can sometimes be upheld if it is rationally related to a legitimate state interest. Depending on the circumstances, courts apply varying standards of scrutiny to such claims — rational basis, intermediate and heightened — and the previous 21 decisions had found that laws against gay marriage failed on all three.
The DOMA case did not specify that a heightened standard of scrutiny should be applied to such cases, and Judge Feldman concludes from the language of that opinion that rational basis, the least strict standard and thus the one most favorable to same-sex marriage opponents, is appropriate. There is a strong case to be made that discrimination based on sexual orientation should be subject to the highest level of scrutiny, but, as Judge Feldman noted, the Supreme Court has not set that standard in the past, so proponents of marriage equality need to be prepared to win the case based on a rational basis claim. The good news is that Judge Feldman's decision reveals no better argument for a rational state interest in prohibiting gay marriage than any of the previous cases did.
He was persuaded by Louisiana's argument that it has a "legitimate interest in linking children with intact families formed by their biological parents." This would be a terrific argument in favor of mandatory marriage for parents or for prohibiting divorce — if in fact there was good evidence that biological parents inherently provide superior upbringing for children, which there isn't. But it is not even tenuously related to the way the state has previously treated the issue of marriage or to the reality of contemporary family life. The state does not prohibit marriages between couples who are infertile or elderly or simply do not desire to procreate. Moreover, this line of reasoning fails to account for the fact that same-sex couples in Louisiana and every other state are raising children right now. The choice is not whether those children will be raised by their biological parents or a same-sex couple but whether they will be afforded the protections that state-sanctioned marriage offers to families.
Judge Feldman also writes at length about the caution courts must exert in overturning the product of democratic processes, whether an act of the people through referendum or an act of an elected legislature. He acknowledges that "there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society," but he rejects any analogy between the struggle for marriage equality and that for racial equality. In so doing, he resurrects the specious argument that some equivalence exists between same-sex couples and incestuous or polygamous relationships.
That Judge Feldman fails to see a difference between relationships that are inherently exploitative and those that have merely been disfavored for reasons of tradition or religion is revealing of his attitude toward the topic generally. Indeed, though he presents an extensive legal analysis to support his conclusions, Judge Feldman reveals a bewilderment at "the depth of passion" inherent in the issue and a dismissiveness toward those who have drawn different conclusions as being part of a "hopeful chorus" in advancement of "today's blurry notion of evolving understanding." We hope and expect that a majority of the Supreme Court will offer a fairer hearing when it considers the issue.
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