Legal setback for same-sex marriage


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.

Comments

  1. AsqJames says

    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.

    Why is this not unconstitutional under the full faith and credit clause?

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Assuming Louisiana gives full faith and credit to the New York public record of a heterosexual marriage, on what basis can it refuse to give the same to the New York public record of a same-sex marriage?

  2. subbie says

    AsqJames, a long-standing element of Full Faith and Credit jurisprudence allows a state to refuse to recognize actions from another state that violate the public policy of the recognizing state. For example, if State A refuses to allow first cousins to marry, it does not have to recognize a marriage between first cousins from another state where it was legal.

  3. AsqJames says

    Thanks subbie. That doesn’t really make much sense to me, but that’s far from a unique situation where my understanding of the world is concerned ;-).

  4. Chiroptera says

    For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother?

    Can you come up with a rational basis for forbidding those marriages? If so, then they are not relevant to same sex marriage since the major legal problem is that the opponents cannot come up with a rational basis. If not, then what is the problem with allowing them?

    May minors marry?

    No. Good god, even a judge doesn’t understand the concept of consent?

    What about a transgender spouse? Is such a union same-gender or male-female?

    It would just be a union. Allowing same sex marriage doesn’t add a category of “same-gender” along side the category of “male-female”. There would just be marriages. Maybe this judge hasn’t even read what the marriage statutes actually say?

    Must marriage be limited to only two people?

    I dunno. None of the legal arguments in favor of same-sex marriage that I have read apply to polygamous situations. That would end up being a very different argument, relying on very different precedents. In fact, I don’t see how ruling against same-sex marriage now would prevent a future court from ruling that polygamous marriage must be allowed.

    I haven’t read the decision, but the parts quoted in the OP makes this judge sound pretty ignorant and unable to understand the actual arguments the people are making. On the other hand, this seems to make this judge a viable candidate for the Supreme Court!

  5. subbie says

    Chiroptera, I have read most of it. It’s badly written as well as badly reasoned. He simply refused to address some issues, and completely missed the salient point on many of the issues that he did address. It’s apparent he had an agenda even before he got the case and intended to decide it that way regardless of the law, the facts or any of the arguments the parties made.

    It’s a piece of shit, not to put too fine a point on it.

    You can read the opinion here. http://media.wix.com/ugd/a430fd_7d86e89b639549869df8e3e0fa723e63.pdf

  6. Derec A says

    AsqJames, a long-standing element of Full Faith and Credit jurisprudence allows a state to refuse to recognize actions from another state that violate the public policy of the recognizing state. For example, if State A refuses to allow first cousins to marry, it does not have to recognize a marriage between first cousins from another state where it was legal.

    Uh, no. That’s not correct. The reason that the individual states still do not have to recognize same sex marriages performed in states where they are legal is that DOMA is still on the books and allows the individual states the option of ignoring the public acts, records, and judicial proceedings of every other state concerning recognition of same sex marriage. . The only part of DOMA that was ruled unconstitutional was the redefinition of the word “marriage” but the ruling left the following two clauses intact

    Section 1. Short title: This Act may be cited as the “Defense of Marriage Act”.

    Section 2. Powers reserved to the states: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

    Which means this

    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.

    is perfectly legal under federal law. And until Congress has the balls to repeal DOMA completely no state is required to recognize same sex marriage. Period. End of Story.

    Assuming Louisiana gives full faith and credit to the New York public record of a heterosexual marriage, on what basis can it refuse to give the same to the New York public record of a same-sex marriage?

    They can refuse to recognize same sex marriages on the basis of DOMA § 2 which again is still on the books as a legal law of the land until Congress decides to repeal the remaining parts of DOMA.

  7. gshelley says

    I don’t think his slippery slope argument suggests a general unease about loosening the deffu ition of marriage. To me it suggests the same thing it does when anyone else makes the argument, that they are a bigot who thinks scare tactics can defeat rational argument.
    And having read the decision, I am confident in that assessment. It is terrible, full of argument by assertion and dismissing actual evidence by claiming people disagree.

  8. says

    What about a transgender spouse? Is such a union same-gender or male-female?

    That’s a weird one. That looks to me like a good reason to legalize gay marriage. That question then becomes irrelevant if “same-gender” and “male-female” are both legal. This is only an issue if one is illegal but not the other. It seems he didn’t actually think his own questions through.

  9. subbie says

    Derec A, even if DOMA were struck in its entirety today, states would still be free to refuse to recognize any marriages from other states that violate their public policy. One exception to this, of course, would be if the refusal is unconstitutional for another reason, refusal to recognize an interracial marriage, for example. The part of DOMA that allows states to not recognize gay marriages from other states is merely a codification of one specific example the public policy exception to the Full Faith and Credit Clause.

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