Once again, special interests are seeking privilege through litigation, using the courts to compensate for inability to persuade and for the lack of fact and logic in their losing arguments to trump the democratic process, in this instance to benefit those who practice homosexuality.
The suit wishes to force the state to recognize legal same-sex marriages by way of conferring other kinds of preferential treatment onto such pairs, such as in child custody, medical decision-making, and tax benefits, by challenging propriety of parental names on birth certificates and tax filing status recognition. In a replay of a failed case brought by two men declared married in another state who insisted the state put both their names on the birth certificate of a child from Louisiana they adopted in that other state – and who they used as a cat’s paw for their political agenda – it uses the same specious argumentation.
And, as it turns out, also includes a contorting of the U.S. v. Windsor decision from last summer to try to avoid that error. In the federal case heard by the U.S. Supreme Court, the winning side got the Court to void the federal Defense of Marriage Act insofar as that law overrode state jurisprudence in the area of whether states could confer federal benefits onto same-sex individuals with a marriage license for that union. It said if a state acted in its constitutional authority to define marriage, then federal law could not override that decision because in doing so it sent a signal that it “imposes a disability” on that status, an imposition announced from “federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity” (emphasis mine).
But here the plaintiffs want to argue that it is state officials who seek to do this “imposition”, even though the state constitution instructs them to do so. The logic of Windsor – the federal government cannot override a decision left to the states – does not apply in this situation where the state has regulated the practice and state officials simply are following it. In order to finesse around this, the plaintiffs entered the suit into federal court where they will try to sidestep away from the relevant issue using, as has been attempted in several other states, the Scalia dissent escape hatch.
This refers to the dissent of Assoc. Justice Antonin Scalia, who inWindsor wrote the ruling left an open invitation to try to make an equal protection case out of the matter, to allow the Court to overturn state highest courts and democratic processes, which in the process would redefine the recognized general police powers of states. Scalia recognized that there was no justification to this even as he (correctly) predicted its emergence, and was joined by other dissenters noting that these attempts if ratified were nothing more than extra-constitutional exercises of fiat by activist federal judiciaries over constitutionally-empowered democratic processes.
In other words, the presence of “no legitimate purpose” triggers an equal protection matter. Except that there is one, in that the state does have a legitimate purpose in defining marriage as between a single man and single woman – because this is the ideal form in which to perpetuate society by the bearing of children, and act which simply cannot be done by people of the same sex; they cannot procreate. Therefore, the state provides benefits such as tax benefits to encourage the formation of marriage of individuals who have the biological capacity to assist the state in this important purpose.
Ignoring this fact and relying on the equal protection argument also leads to absurdities. For example, this was used by an activist federal judge to knock down Utah’s ban similar to Louisiana’s, where perhaps the only ones that celebrated more about it than those who practice homosexuality and wishing to marry each other were polygamists, for the logic is exactly the same in both instances. The Supreme Court stayed the ruling pending higher court review, which was appealed with Utah’s attorney general pointing out the stupidity of the plaintiffs’ claim there: that the state wished to place a ban in effect, even though the concept of single man-single woman marriage had existed for decades in the state and thousands of years in larger society, as a way of discriminating against and demeaning those who practice homosexuality.
The Louisiana case’s plaintiffs will try to distract from this relevant truth by trotting out various red herrings alleging some special burden gets placed on those who practice homosexuality unable to marry each other that makes Louisiana’s definition discriminatory. None are believable. For example, one is claiming that without the state recognizing a same-sex marriage, this allows for just a single name to be placed on a birth certificate that creates bureaucratic difficulty, which even could threaten a child’s health through delayed medical attention, for the other “parent” in regards to the child’s welfare and thus constitutes “harm.”
This is nonsense. As the filing admits, other (and very easily obtainable) legal documents can solve for this. And that’s the case for every presumed “harm” listed in the suit: either easy solutions already exist, or a lack of benefit conveyed by the state to a same sex pairing available to a married man and woman has the legitimate purpose of fostering procreation. Any discrimination here has an entirely legitimate purpose and is not done out of some perceived animus to those who practice homosexuality. Indeed, to treat these different kinds of couples the same privileges the pair that practice homosexuality, for their activities convey no benefit to the state.
Which, if a state wants to extend that privileging, it may do so, and some have by democratic means. But if it doesn’t, there’s no constitutional reason why it must be forced to do so. And any court that values the Constitution and does not place itself above it will agree.