Louisiana Federal Judge Gets It Wrong and Uphold Gay Marriage Ban

Judge Feldman - homophobe or self-loathing closet case?

While other judges at the state court level have upheld state bans on same sex marriage, since the ruling in United States v. Windsor, no federal judge or Court of Appeals has upheld a state ban until today.  Today, Louisiana Federal Judge Martin Feldman (pictured at left)not only upheld Louisiana's ban, but misconstrued Windsor and, worse yet, equated same sex marriage with opening the doors to legalized incest.  From his opinion, it is unclear if Feldman is simply an asshole, a homophobe or seeking to force the United States Supreme Court to make a definitive ruling by going against the flow of all the other rulings handed down since Windsor.  Whatever Feldman's agenda may be, he misconstrues Windsor which NEVER ruled on state bans because the sole issue before the Court in Windsor was Section 3 of DOMA which controlled FEDERAL recognition of same sex marriages legally performed in states with legalized same sex marriage.  Thus, any statements in Windsor on state legislation on marriage was what's called "dicta" - i.e., nonbinding because it is not central to the issue before the Court.  Most first year law students know better than to cite dicta as governing precedent.  A piece in Towleroad goes further into tearing Feldman's opinion apart.  Here are excerpts:

Louisiana Federal Judge Martin Feldman, a Reagan appointee, has upheld Louisiana's ban on marriage equality in a haphazard opinion remarkable only for its outdated language and subtly hateful rhetoric. Falling into traps we teach law students to avoid, Judge Feldman finds marriage equality as suspect as fathers marrying their daughters and improperly narrows the scope of the case to seeking a "right to same-sex marriage" rather than just "marriage." He suggests that being gay is a "lifestyle choice" and states that such a "choice" is butting heads with the democratic process, something he seems to think is infallible and beyond reproach.

Judge Feldman gets it wrong. The fight for marriage equality is a fight for marriage, not anything special or different than what opposite-sex couples enjoy. Being gay is not a choice and loving someone of the same sex is not a "lifestyle choice": it is love, it is human nature. And permitting gays to marry does not open the door to incestuous marriages, bestial marriages, or polyamorous unions. That kind of slippery slope argument doesn't pass the laugh test. Countless jurisdictions have made the decision to allow gays to marry, a legal policy decision that has no negative health or cohesion effects on society, without improperly permitting marriages that could be damaging to those involved and to children.

Judge Feldman is not the first judge to uphold a ban. He is not even the first to uphold a ban in the post-Windsor era. He is, however, the first federal judge to uphold the constitutionality of a state ban on marriage equality since Windsor, which complicates marriage's journey through the federal courts.

The decision today does not necessarily mean the Supreme Court will have to take one or several marriage equality cases; Judge Feldman could still be overturned by the Fifth Circuit. But it does have several effects:

(1) it makes a circuit split, a key reason the Supreme Court takes cases, more likely;
(2) it provides some measure of legitimacy to anti-equality forces by giving them a victory and resurrecting their outdated and hateful language; and
(3) it denies very real rights to very real families struggling in Louisiana.

Judge Feldman did not spew the kind of hate that comes from the National Organization for Marriage or the Liberty Council or the Westboro Baptist Church. Nor, on the other hand, was he even remotely supportive. Besides calling being gay a "lifestyle choice" (Error 1) and comparing gays marrying to incest (Error 2), he asserted that the right the plaintiffs sought was a "new right," one definitely not steeped in the democratic tradition of this country--namely, a right to same-sex marriage (Error 3).

As the [U.S. Supreme] Court noted in Lawrence v. Texas, when it overturned Bowers, Justice White got it wrong: to limit the discussion to sex is to ignore the reality of why people make love and why they have intimate relationships with others. Judge Feldman also got it wrong. We don't want to get "gay married;" we want to get married. There would be little drawing us to fight if all we were fighting for was our own separate-and-unequal institution of unions.

Today's opinion also assumes that once the supposed Pandora's Box of marriage is open, it won't stop until forks are marrying spoons and knives (Error 4).

Judge Feldman also gets the level of scrutiny wrong. He uses the lowest form of rational basis review, which allows the state to justify its discriminatory laws on "any conceivable basis" (Error 5). But the federal courts, including the Supreme Court in Lawrence and Windsor, have not been using that insanely low bar for some time.

What's more, the particular rational basis on which Judge Feldman hangs his hat -- "linking children to an intact family formed by their two biological parents" -- is so illogical as to be laughable (Error 6). How does banning gays from marrying actually ensure that more children will be born to and be raised by opposite-sex biological parents in wedlock?

It is hard to say what effects this wayward decision will have. The case will go up to the Fifth Circuit, which already has a marriage equality case from Texas (striking down the ban), but the mere fact that Judge Feldman upheld the ban will not necessarily weigh in the ban's favor up at the circuit court. Matters of law, as attorneys say, are reviewed de novo, from the beginning, regardless of the conclusions below. However, the mere fact of having an antiequality opinion on the books gives some measure of legitimacy to the right's outdated, hateful, antigay arguments. But we've come back from far worse antigay rhetoric from federal judges. For most of us, this will be a single opinion discarded to the trash bin soon. But for the residents of Louisiana, it is another wound that will take a lot longer to heal.