by Dish Staff
Yesterday, a Louisiana judge upheld the state’s marriage ban:
Throughout his thirty-two-page opinion, the judge noted the near unanimity that has prevailed in other courts on the same-sex marriage issue, and he did not criticize other courts for having done so. He said those rulings amounted to “a pageant of empathy” for same-sex couples. But he concluded his opinion with an essay on the virtue of leaving such a vigorously debated topic to the choice of the people, acting as legislators at the ballot box or through their state legislative representatives.
An appeal of this decision to the U.S. Court of Appeals for the Fifth Circuit is nearly certain.
Mark Joseph Stern notes that Judge Martin Feldman, “is not the first judge since 2013’s United States v. Windsor to uphold a gay marriage ban. He is, however, the first federal judge, a key distinction that gives his ruling significant clout”:
The thrust of Feldman’s ruling rests on a misinterpretation of the so-called animus doctrine. According to the Supreme Court, laws motivated exclusively by anti-gay animus toward gay people violate the equal protection clause of the 14th Amendment. After the court struck down a federal gay marriage ban in Windsor, the vast majority of judges have concluded that all gay marriage bans are presumptively motivated by animus. That’s a logical conclusion, given the Windsor court’s assertion that the federal ban’s “principal purpose and necessary effect” was to “demean” and “degrade” gay people.
But as I’ve written before, the animus doctrine has a weak spot: It’s pretty easy for an eager judge to put a fig leaf over the hostility that motivates anti-gay laws. Feldman, for instance, is shocked that gays would even suggest such a motive, berating them for insisting that Louisiana’s ban “could only be inspired by hate and intolerance.” Rather, denying gay people the right to marry is a perfectly reasonable way “to achieve marriage’s historically preeminent purpose of linking children to their biological parents.” To insinuate that the law was passed to “vilify” gays, Feldman scoffs, is absurd and insulting.
Rob Tisinai pokes holes in the ruling:
[A]bout that societal interest in ensuring that fundamental social change be cultivated via the ballot or legislature instead of the courts: this is an invitation never to find any law unconstitutional, no matter how great an affront to the Constitution it may be. Feldman hedges his way out of this with the qualifier, “in this case.” But why, in this case? He never explains. The closest he comes is in his comments about linking children to their biological parents. But this is inadequate. Such a policy goal explains why the state permits biological parents to marry. It explains not at all why other marriages should be banned. This is a huge hole in Feldman’s reasoning, and I suspect there really is nothing that could fill it.
Savage extends Feldman’s logic:
Preventing same-sex couples from marrying does not prompt opposite-sex couples to marry. If the state has an interest in “intact” families headed up by “two biological parents,” it would make more sense—and come far closer to achieving the state’s supposedly legitimate interest—if the state made pre-marital sex illegal, compelled straight men to marry the women they’ve impregnated, and banned divorce for straight couples with children.
Garrett Epps suggests that “not coincidentally, [the ruling’s] heart is drawn from an opinion written earlier this year by Justice Anthony Kennedy—whose vote will very likely determine the result when the marriage issue reaches the Court”:
Kennedy is a man with a large but complex heart. On the one hand, it tugs him toward his beloved “dignity” for gay couples and their children; on the other, it draws him toward the privileges of the states and the newly discovered “fundamental right” of majorities. The outcome of that contest is still in doubt, and Feldman’s opinion shows why.
Allahpundit bets Kennedy will side with equality:
One of the core points in Kennedy’s prior landmark opinions in gay-rights cases, especially the case striking down sodomy laws, is that gays are entitled to the same constitutional protections for intimate behavior that straights are. It would be odd if he followed that up by reading the right to marriage the way Feldman does, as a right inherently limited to people of different genders. And it’s not just RINOs who think so: Scalia, dissenting in the Windsor case, laughed at Kennedy’s opinion for being a transparent precursor to eventually finding that the Due Process Clause grants citizens the right to marry another person, not a right to marry only a person of the other gender. I think Feldman’s destined to be overturned, but this is a hopeful note at least for opponents of SSM.
The Dish 