I’m having some trouble with Judge Feldman’s decision upholding Louisiana’s ban on marriage equality. I’m not a lawyer, though, so perhaps others can correct me.
For instance, in explaining why heightened scrutiny applied in the Loving case but not here, Feldman writes:
Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.
But here’s the first section of that amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It does not “expressly” mention race. Nor does the rest of the amendment.
Feldman then dismisses the argument that the ban discriminates based on gender:
Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders–whether between two men or two women.
He seems to be saying that because the law applies to both genders equally, it does not discriminate based on gender. The odd thing, though, is that in Loving, defenders of the interracial marriage ban tried the same tactic, saying that the ban did not discriminate because it applied to all races — but the Supreme Court expressly rejected that reasoning:
…we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the “integrity” of all races.
So you can’t use Loving to say it’s okay to discriminate “even-handedly.” (It’s striking that Feldman and the Supreme Court both used that phrase.) Further, it’s reasonable to think a gender-based classification of people and their rights would also be repugnant to the Fourteenth Amendment. (And remember, Feldman is addressing gender discrimination in this bit, not orientation-based discrimination.)
Now that Feldman has used this flawed (to my mind) reasoning to justify rational-basis scrutiny of Louisiana’s ban (the easiest level of scrutiny for a law to pass), he looks for that rational basis and finds it in this:
Defendants rejoin that the laws serve a central state interest of linking children to an intact family formed by their biological parents. Of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus. This Court agrees.
Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents. Louisiana’s regime pays respect to the democratic process; to vigorous debate. To predictable controversy, of course.
A couple problems here. First, about that societal interest in ensuring that fundamental social change be cultivated via the ballot or legislature instead of the courts: this is an invitation never to find any law unconstitutional, no matter how great an affront to the Constitution it may be. Feldman hedges his way out of this with the qualifier, “in this case.” But why, in this case? He never explains. The closest he comes is in his comments about linking children to their biological parents. But this is inadequate. Such a policy goal explains why the state permits biological parents to marry. It explains not at all why other marriages should be banned. This is a huge hole in Feldman’s reasoning, and I suspect there really is nothing that could fill it.
There’s quite a bit more in the decision, but this seems to be the core of it. Feldman settles on rational-basis scrutiny by using flawed reasoning and flat-out mistakes about what the Fourteenth Amendment says, and then fails in his attempt to find that rational basis. To my untrained eye, this decision looks easy to challenge on appeal. Any lawyers out there care to comment?