SADOW: Judge Feldman Brings Good Sense To The Gay Marriage Debate

To Louisiana’s credit, based in it federal District Judge Martin Feldman delivered the most cogent decision yet on the issue of same-sex marriage, almost making certain that this case will end up as one upon which the entire question will be settled by the U.S. Supreme Court, and providing a preview into the basis for a decision using it in upholding states’ rights to define marriage.

In granting summary judgment dismissing plaintiffs who argued that Louisiana’s constitutional ban on recognizing any marriage besides that of a single man to a single woman violated equal protection, due process, and freedom of speech, Feldman exposed the poverty of that argumentation. He also tackled a root question prior to this, what kind of burden of proof states needed to regulate in this area.

While plaintiffs argued that the highest burden of proof was needed, thus reducing the ability of states to be able constitutionally to regulate marriage, Feldman demonstrated in fact the lowest was applicable, and in his opinion served notice that even if the highest were used, the justifications as such – the state having a legitimate interest in linking children with intact families formed by their biological parents and by ensuring fundamental social change occurs by social consensus through democratic processes – might well be just as compelling for that standard as the lowest. (He didn’t address another justification, not mentioned by the defense, facilely dealt with in Hebert v. Kitchen, that the state has a compelling interest in promoting procreation.)

In doing so, he showed the sloppiness (in his terms, “intellectual anarchy”) long prevalent in arguments that denial of same-sex marriage by states was discriminatory and denied due process in deprivation of a “right,” uncovering inconvenient assumptions that these proponents had to make in order to give these arguments a chance. (On the question of the state’s administrative code violating free speech, which the plaintiffs said occurred when two individuals with a marriage license issued by another state whose asserted married state is not recognized by Louisiana’s Constitution could not fill out a state tax return as “married,” he basically laughed that one out of his court.)

One is that marriage in any form is a “right” guaranteed under the Constitution that means to prohibit those on the basis of gender orientation was unconstitutional. He adroitly demonstrated that there was no jurisprudence to substantiate “gender orientation” was some kind of protected class (in the process dispatching that this is assumed from Romer v. Evans on this subject matter), and suggested that only through an act of judicial arrogation of legislative powers could such an argument be sustained.

This point led to another discussion point, but one that advocates of a right to same-sex marriage desperately try to avoid acknowledging: if marriage is not just one thing, it can be anything. Since same-sex marriage cannot accomplish the defining feature of marriage between a man and a woman – procreative opportunity – then the same rationale implicit behind same-sex marriage – when shorn of the procreative possibility becoming nothing more than a mutual comfort and aid society – can apply to any arrangement. Apparently, it led to awkward moments for plaintiffs’ counsel when Feldman asked how they would distinguish here, who could not come up with a reason why even more exotic combinations could be regulated by states but not same-sex marriage other than it would be harmful in some nebulous way.

That response obviously missed the point and demonstrated the utter lack of logic behind their entire argumentation. If they are to say that same-sex marriage is a fundamental right despite no history of it and no demonstrated legislative intent in America except in a few places in the last few years, then who are they, on the basis of the same justification, to read out of the Constitution what NAMBLA preaches? Or what Andrew “Dice” Clay suggests?

Even if a claim can be made that children or animals would get hurt psychologically by permitting these forms, isn’t that a judgment subject to change? After all, wasn’t homosexual behavior once medically classified as a mental disorder? And what of, as Feldman pointed out by way of example of the democratic process working out these value judgments, all sorts of exotic human pairings or polyamory as with fundamentalist Mormons (with a recent case amplifying his point)? If the Constitution is a living, breathing document adapting to changing norms, as the plaintiffs imply, why should these norms be excluded? The logic (or lack of it) behind same-sex marriage simply has no answer to justify privileging it while preventing these.

Finally, Feldman points out the utter lack of faith that the plaintiffs have in the democratic process. He astutely notes that just because an issue is contentious, even acrimonious, does not mean that the majoritarian branches of government and voting publics are disqualified to make a decision on it, or that the courts only are to arbitrate a decision in that instance. The process is valuable precisely because it reflects society’s judgment on the appropriateness of a norm, and that hastiness in ejecting democratic processes from the decision-making on it injures peoples’ acceptance of that kind of norm that cannot qualify as a fundamental right.

Most intriguingly, many of Feldman’s key arguments are drawn from extant cases in this area and from United States v. Windsor, which set off the orgy of challenges to same-sex marriage bans when it ruled the federal government could not ban its distribution of benefits on the basis of one particular definition of marriage. In particular, he cited the swing vote and majority opinion writer in that case, Associate Justice Anthony Kennedy, to buttress some of these points, showing how Kennedy’s statements and logic lead him to his conclusions in this present case.

That should set off alarm bells for same-sex marriage proponents, for if, as widely anticipated, the Supreme Court takes up the issue this upcoming term and agrees to hear Robicheaux v. Caldwell as part of that, it points to the Court upholding the rights of states to define marriage. It seems unlikely that the four in the minority in Windsorwould change their minds, and it would be odd if Kennedy disavowed or substantially moved away from his words of just a couple of years previous, prompting him to join the former minority this time.




Plaintiffs have said they will appeal, and seemed surprised they lost. Had they understood the issue with increased erudition, they would not have been.

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