Ruling that the Supreme Court’s one-year-old decision striking down a provision of the Federal Defense of Marriage Act “does little more than give both sides in this case something to hope for,” a federal judge in New Orleans on Wednesday upheld Louisiana’s ban on same-sex marriages and its refusal to recognize any such union performed in another state.  The ruling by U.S. District Judge Martin C. Feldman thus became the first by a federal court to reject a constitutional challenge since the Justices’ decision in United States v. Windsor.

Every federal court that has so far struck down a state ban has relied in one way or another on the Windsor decision, even though the Court had stressed that it was not ruling on the validity of such bans.  Judge Feldman said the decision caused him “unease” and added that he found it to be “unclear” and, “by its own terms, limited.”

The New Orleans jurist ruled that the Louisiana constitutional amendment — adopted in 2004 by state voters by a margin of seventy-eight to twenty-two percent — should be judged by the most lenient test, rational basis, on claims that the ban violates equal protection guarantees and due process.

More rigorous review was not necessary, he concluded, because Louisiana “is acting merely within the scope of its traditional authority,” and he added that this had been “underscored by Justice [Anthony] Kennedy,” the author of the majority opinion in Windsor.

“This court,” Judge Feldman wrote, “finds it difficult to minimize, indeed, ignore, the high court’s powerful reminder in Windsor:  ‘The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.'” Other parts of  Windsor quotations cited by the judge include these:  “‘The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the [p]rotection of offspring, property interests, and the enforcement of marital responsibilities.  . . .  The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”

He rejected a “heightened scrutiny” test for same-sex marriage laws by concluding that both the Supreme Court and the court of appeals in his region — the Fifth Circuit — had yet to recognize sexual orientation as a class deserving constitutional protection against discrimination, although they have had opportunities to do so.   He added that he was declining to “fashion a new suspect class” for purposes of constitutional analysis of claims of discrimination.

In judging the equal protection claim, the New Orleans jurist declined to get involved in what he called a social scientific debate about the nature of marriage.  However, he did accept the argument by Louisiana officials that “marriage’s historically preeminent purpose” is to link children “to their biological parents.”

But the judge seemed most persuaded by arguments that a ban on same-sex marriage was a product of the democratic process, and should be respected as such.  There is, he wrote, “a legitimate state interest in safeguarding that fundamental social change . . . is better cultivated through democratic consensus.”

Moving on from the equal protection challenge to the claim that the ban violates constitutional promises of due process, Judge Feldman concluded that same-sex couples were seeking a new constitutional right to marry a person of the same sex, rather than a right to share equally in marriage itself.

He found no basis for concluding that there is a fundamental right to same-sex marriage, because there is no history or tradition in the United States of such marriages.  And, he said, because there was no fundamental right at stake, the due process claim had to be judged on the rational basis standard.  He found that it satisfied that test.

The judge also rejected the same-sex couples’ challenge to a requirement, under state law, that same-sex couples who were married in other states must still note on their Louisiana tax returns that they are single, because of the state’s refusal to officially recognize their marriages.  The couples had contended that this requirement forced them to say something that was not true.  Judge Feldman said the law was not an attempt to regulate speech, but rather to regulate conduct, and was thus valid.

Throughout his thirty-two-page opinion, the judge noted the near unanimity that has prevailed in other courts on the same-sex marriage issue, and he did not criticize other courts for having done so.   He said those rulings amounted to “a pageant of empathy” for same-sex couples.

But he concluded his opinion with an essay on the virtue of leaving such a vigorously debated topic to the choice of the people, acting as legislators at the ballot box or through their state legislative representatives.

An appeal of this decision to the U.S. Court of Appeals for the Fifth Circuit is nearly certain.  That court is already weighing an appeal by the state of Texas, challenging a federal judge’s decision against that state’s ban on same-sex marriage.

Posted in Cases in the Pipeline, Featured, Same-Sex Marriage, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Louisiana same-sex marriage ban survives challenge, SCOTUSblog (Sep. 3, 2014, 2:05 PM), http://www.scotusblog.com/2014/09/louisiana-same-sex-marriage-ban-survives-challenge/