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Ruling in Louisiana Could Guide New Legal Strategy for Defending Marriage

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Brian Fraga - published on 09/07/14 - updated on 06/08/17

Judge finds language in ruling popular among gays that could lead to reversal of fortunes.

A federal judge’s recent ruling that upheld Louisiana’s traditional definition of marriage may provide a new legal strategy for defending the institution of marriage in the courts.

"I think it could represent a new way of understanding this issue that unfortunately from our point of view, has been left out of these many other decisions," said Kyle Duncan, a Washington-based attorney who is the Louisiana Attorney General Office’s point man in defending the state’s constitutional amendment that defines marriage as the union of one man and one woman.

On Sept. 3, U.S. District Court Judge Martin Feldman in New Orleans ruled that the U.S. Constitution and federal laws allow individual states, through the political democratic process, to define marriage as they see fit, and to decide whether they will recognize same-sex marriages performed in other states.

"Although opinions about same-sex marriage will understandably vary among the states, and other states in free and open debate will and have chosen differently, that does not mandate that Louisiana has overstepped its sovereign authority," wrote Feldman, who was appointed to the federal bench 1983 by President Ronald Reagan.

Robert M. Tasman, the executive director of the Louisiana Conference of Catholic Bishops, told Aleteia that Feldman’s decision was "a victory for constitutional democracy and marriage."

"It’s really important that the definition was agreed upon and supported by a democratic vote which was cast by a majority of voters in our state," Tasman said. "From our perspective, the court really affirmed the rights of states and individual citizens to determine how marriage is to be defined, apart from and without any interruption from the federal government."

Feldman is the first federal judge to uphold a state ban on same-sex marriage since the U.S. Supreme Court struck down a part of the federal Defense of Marriage Act last year in the case of United States v. Windsor. According to the Human Rights Campaign, a gay rights organization, there had been 21 prior consecutive federal court decisions finding that state-level bans on same-sex marriage were unconstitutional.

The day after Feldman’s ruling, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago unanimously ruled that same-sex marriage bans in Wisconsin and Indiana were unconstitutional. The court criticized the rationale for the states’ marriage laws, and said that there were differences between good and bad traditions.

"The judicial activism has been totally clear on this issue. In Louisiana, the adult finally entered the room. This judge actually said what we’ve been saying and what anyone who looks at the U.S. Constitution has been saying, and that is people have the right to define marriage as the union of a man and a woman," Brian Brown, the president of the National Organization for Marriage, told Aleteia.

In 2004, more than 78 percent of Louisiana voters approved an amendment to the state’s constitution to define marriage as the union of one man and one woman. Louisiana was one of more than a dozen states that passed similar constitutional amendments in 2004, and one of 30 states that in their constitutions defined marriage in its traditional sense.

The gay rights movement, led by organizations such as the Human Rights Campaign and GLAAD, have challenged those amendments on the grounds that they violate the U.S. Constitution’s equal protection and due process clauses. With the exception of Feldman, the gay lobby’s arguments have resonated among federal judges, though their decisions to strike down the states’ gay marriage bans have been stayed on appeals. Same-sex marriage is currently legal in 19 states and Washington D.C.

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