John M. Becker

BREAKING: Federal Judge UPHOLDS Louisiana Marriage Ban

Filed By John M. Becker | September 03, 2014 12:35 PM | comments

Filed in: Marriage Equality, Politics
Tags: gay marriage, Louisiana, marriage discrimination, marriage equality, Martin Feldman, same-sex marriage

judge-martin-feldman.jpgFor the first time since the Supreme Court's landmark Windsor decision last year, a federal judge has upheld the constitutionality of a state's marriage discrimination amendment. (A judge in Tennessee upheld that state's ban last month, but that was in state court, not federal court.)

The ruling comes from Louisiana, in the case of Robicheaux v. Caldwell, which seeks to compel the state to recognize valid same-sex marriage licenses issued elsewhere. BuzzFeed's Chris Geidner reports:

The ruling, from U.S. District Court Judge Martin Feldman, is the first federal court ruling upholding a state's ban since the U.S. Supreme Court struck down the federal law defining marriage as only including opposite-sex couples in June 2013.

Feldman noted his departure from other judges, writing, "It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts that have spoken to this pressing issue, if this Court were confident in the belief that those cases provide a correct guide."

Nonetheless, Feldman concluded first that no "fundamental right" was at stake -- "Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental." -- and then that defendants "offer a credible, and convincing, rational basis" for the ban on same-sex couples' marriages in the state.

Shockingly, Feldman referred to marriage equality as "lifestyle choices recognition," implying that the judge falsely believes sexuality to be willfully chosen rather than an intrinsic part of a person's humanity. From page 5 of the ruling:

"This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition."

Feldman also outrageously likens marriage equality to incest, pedophilia, and polygamy, and throws in some anti-trans demagoguery to boot:

"And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs."

More details, including a copy of today's decision, after the break.

Regular Bilerico readers will remember that disgraced researcher Mark Regnerus -- author of a widely-discredited study that falsely claims that children of same-sex couples do worse than children of opposite-sex couples -- filed a brief in the Louisiana case. Regnerus and six other sociologists argued that, despite overwhelming evidence to the contrary, same-sex marriage harms children and therefore should not be allowed in Louisiana.

Judge Feldman alluded to the Regnerus brief in his opinion today, writing:

"Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents... The fact that marriage has many differing, even perhaps unproved dimensions, does not render Louisiana's decision irrational. Nor does the opinion of a set of social scientists (ardently disputed by many others, it should be noted) that other associative forms may be equally stable, or the view that such judgments vilify a group (even though one finds them in a majority of the states, but not in all states).... The court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid."

This appeal to tradition is utterly absurd and was smacked down by U.S. Appeals Judge Richard Posner in oral arguments last week regarding marriage bans in Wisconsin and Indiana. Responding to Wisconsin's assistant attorney general, who cited that state's tradition of marriage discrimination as justification for its marriage ban, Posner said,

"Tradition per se is not a grounds for continuing. 'We've been doing this stupid thing for 100 years, 1,000 years; we'll keep doing it because it's tradition.' You wouldn't make that argument. Don't you have to have some empirical or some practical or common-sense basis for barring these marriages?

Not in Judge Feldman's courtroom, apparently. But there is a silver lining: if his wrong-headed decision is upheld on appeal, it will greatly increase the already good chances of the United States Supreme Court stepping in to decide the issue for the entire country.

deepwater-horizon-oil-spill.jpgExpect proponents of marriage discrimination to commence crowing and thumping their chests in 3, 2, 1...

By the way, Martin Leach-Cross Feldman, a Ronald Reagan appointee, is perhaps best known as the ethically questionable jurist who in 2010 blocked the six-month moratorium on deep-water drilling projects imposed by the Obama administration on the heels of the Deepwater Horizon oil disaster in the Gulf of Mexico. It later emerged that Feldman owned shares of stock in several oil companies that would have been impacted by the drilling ban, including the company that owned the Deepwater Horizon oil rig.

This news is assuredly disappointing, folks, but don't lose heart. It had to happen eventually -- nobody promised us an unbroken winning streak -- but let's not forget that Feldman's ruling is an aberration, and an extremely shaky one at that. If this is all that equality opponents have to hang their hat on, freedom-to-marry proponents are in really, really good shape.

We all know that this is ultimately headed for the Supreme Court, and with a critical mass of states and a clear majority of the American people (and a landslide majority of Millennials) supporting the freedom to marry, I've never been more confident that the country is truly ready for marriage equality.

We fight on!


2:13-cv-05090 #131 by Equality Case Files

Via Equality Case Files.

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