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.
Most legal observers believe the same-sex marriage question is headed to the U.S. Supreme Court, especially if the appellate courts issue conflicting rulings.
"Anyone who’s followed this issue itself is waiting for that moment to happen. I think it’s inevitable. I think everybody is vigilant as to when that will be and what the actual test case will look like," Tasman said.
Forum for Equality, a Louisiana-based gay rights group that filed the Louisiana lawsuit on behalf of seven same-sex couples, said it will "vigorously appeal" Feldman’s ruling, and vowed to "move forward to bring about simple justice and equality."
Duncan, the former general counsel for the Becket Fund for Religious Liberty, told Aleteia that Feldman’s decision provides a new way of looking at Supreme Court precedents, particularly the Windsor decision, which struck down the 1996 Defense of Marriage Act’s provision that prohibited the federal government from legally recognizing same-sex marriages performed in the states.
The plaintiffs in the same-sex marriage lawsuits have also used the Windsor decision as a precedent for overturning state marriage laws, but Feldman pointed to language in the decision that outlines the states’ historic roles to legally regulate marriage.
"Feldman wisely uses Windsor as a precedent to uphold state marriage law because he sees in Windsor an affirmation of state authority to define marriage one way or the other. That is a strikingly different view than the one put forth in all the decisions that struck down marriage laws," Duncan said.
"It’s quite a different template to understand Windsor," Duncan added.
Feldman also drew from a Supreme Court case earlier this year that upheld a Michigan constitutional amendment—passed by a popular vote—that bans affirmative action in admissions to the state’s public universities. The high court affirmed the right of a state’s citizens to decide difficult and controversial public policy questions.
"That is a basic exercise of self government. It is not a form of bigotry and hatred against anyone," Duncan said.
It remains to be seen whether Feldman’s decision is an anomaly or provides a new precedent for other federal judges to consider. Duncan speculated the decision could inform the 6th U.S. Circuit Court of Appeals—which is currently considering arguments over same-sex marriage cases in Kentucky, Michigan, Ohio and Tennessee—and the 5th Circuit, which will hear appeals in Louisiana and Texas gay marriage cases.
On Sept. 4, 15 states that allow gay marriage filed a brief asking the U.S. Supreme Court to take up cases that overturned same-sex marriage bans in Oklahoma, Utah and Virginia. Meanwhile, 17 states that have banned gay marriage asked the high court to hear the cases and clear up the "morass" of lawsuits.
Brown, of the National Organization for Marriage, said he does not believe that defenders of traditional marriage are "doomed to relive Roe," referring to the Supreme Court’s landmark 1973 decision that struck down state bans of abortion.
"I think we’ll win at the Supreme Court," Brown said. "It will then allow us to fight from state to state, and the other side will likely run ballot initiatives."
Brown added: "Even if we were to lose, do people honestly think that we’re going to go away? The truths and merits don’t change from a line the Supreme Court puts in the law. We’d be in the same position that the pro-life community was in after Roe, and look at all the hard work they have put in over the decades since then. We’d just have to renew our fight."
Brian Fraga is a daily newspaper reporter who writes from Fall River, Massachusetts