Even since the US Supreme Court’s United States v. Windor decision in 2013 that struck down the Defense of Marriage Act, every single challenge to state bans on same-sex marriage has been overturned in the federal courts. Until today, when the movement received its first setback.
The Windsor opinion was a somewhat ambiguous one that had two parts. As I wrote earlier:
The first part was about federalism and said that states had the right to define marriage and the federal government had to simply go along with their decision. DOMA had infringed on the sovereignty of states by defining marriage as only between man and a woman and was thus unconstitutional because New York state had decided otherwise.
The second part of the ruling said that DOMA was unconstitutional because it offended basic principles of equality and because it targeted a particular group to be denied rights and privileges for no justifiable reason except moral disapproval of their conduct. By targeting same-sex couple for exclusion from the rights and privileges of marriage, it violated the due process clause of the Fifth Amendment to the US Constitution.
Lower courts had pretty much side-stepped the first part and used the second part to strike down the bans. Today saw the first break in that string, coming out of Louisiana, where the judge said that the first part about the right of states to set marriage rules could not be ignored. Lyle Denniston writes:
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.”
But in his ruling, the judge also wondered where same-sex marriage could lead, saying:
For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.
This suggests that his objections to allowing same-sex marriage were not entirely based on the issue of states’ rights but also general unease about loosening the definition of marriage.
There seems little doubt that the Supreme Court will decide on this in the coming year.