Federal Judge Gets It Wrong, Upholds Marriage Discrimination in Louisiana in Strange, Hateful Opinion
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a Reagan appointee, has upheld Louisiana's ban on marriage equality in a haphazard opinion remarkable only for its outdated language and subtly hateful rhetoric.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(2) it provides some measure of legitimacy to anti-equality forces by giving them a victory and resurrecting their outdated and hateful language; and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.
I break down some of the more distasteful elements of the decision and provide some context, AFTER THE JUMP...