The suit wishes to
force the state to recognize legal same-sex marriages by way of conferring
other kinds of preferential treatment onto such pairs, such as in child
custody, medical decision-making, and tax benefits, by challenging propriety of
parental names on birth certificates and tax filing status recognition. In a replay
of a failed case brought by two men declared married in another state who
insisted the state put both their names on the birth certificate of a child
from Louisiana they adopted in that other state – and who they used as a cat’s paw
for their political agenda – it uses the same specious argumentation.
And, as it turns out, also includes
a contorting of the U.S. v.
Windsor decision from last summer to try to avoid that error. In the
federal case heard by the U.S. Supreme Court, the winning side got the Court to
void the federal Defense of Marriage Act insofar as that law overrode state
jurisprudence in the area of whether states could confer federal benefits onto
same-sex individuals with a marriage license for that union. It said if a state
acted in its constitutional authority to define marriage, then federal law could
not override that decision because in doing so it sent a signal that it “imposes
a disability” on that status, an imposition announced from “federal officials, and indeed all
persons with whom same-sex couples interact, including their own children, that
their marriage is less worthy than the marriages of others. The federal statute
is invalid, for no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage laws, sought to
protect in personhood and dignity” (emphasis mine).
But here the plaintiffs want to
argue that it is state officials who
seek to do this “imposition”, even though the state constitution instructs them
to do so. The logic of Windsor – the federal
government cannot override a decision left to the states – does not apply in
this situation where the state has regulated the practice and state officials
simply are following it. In order to finesse around this, the plaintiffs
entered the suit into federal court where they will try to sidestep away from
the relevant issue using, as has been attempted in several other states, the Scalia
dissent escape hatch.
This refers to the dissent of
Assoc. Justice Antonin Scalia, who in Windsor
wrote the ruling left an open invitation to try to make an equal protection
case out of the matter, to allow the Court to overturn state highest courts and
democratic processes, which in the process would redefine the recognized general
police powers of states. Scalia recognized that there was no justification to
this even as he (correctly) predicted its emergence, and was joined by other
dissenters noting that these attempts if ratified were nothing more than extra-constitutional
exercises of fiat by activist federal judiciaries over constitutionally-empowered
democratic processes.
In other words, the presence of “no
legitimate purpose” triggers an equal protection matter. Except that there is
one, in that the state does have a legitimate purpose in defining marriage as
between a single man and single woman – because this is the ideal form in which
to perpetuate society by the bearing of children, and act which simply cannot
be done by people of the same sex; they cannot procreate. Therefore, the state
provides benefits such as tax benefits to encourage the formation of marriage
of individuals who have the biological capacity to assist the state in this
important purpose.
Ignoring this fact and relying on
the equal protection argument also leads to absurdities. For example, this was
used by an activist federal judge to knock
down Utah’s ban similar to Louisiana’s, where perhaps the only ones that
celebrated more about it than those who practice homosexuality and wishing to
marry each other were polygamists, for the logic is exactly the same in both
instances. The Supreme Court stayed the ruling pending higher court review,
which was appealed with Utah’s attorney general pointing out the stupidity of
the plaintiffs’ claim there: that the state wished to place a ban in effect,
even though the concept of single man-single woman marriage had existed for
decades in the state and thousands of years in larger society, as a way of
discriminating against and demeaning those who practice homosexuality.
The Louisiana case’s plaintiffs
will try to distract from this relevant truth by trotting out various red
herrings alleging some special burden gets placed on those who practice
homosexuality unable to marry each other that makes Louisiana’s definition discriminatory.
None are believable. For example, one is claiming that without the state
recognizing a same-sex marriage, this allows for just a single name to be
placed on a birth certificate that creates bureaucratic difficulty, which even
could threaten a child’s health through delayed medical attention, for the
other “parent” in regards to the child’s welfare and thus constitutes “harm.”
This is nonsense. As the filing admits, other (and very easily obtainable) legal documents can solve for
this. And that’s the case for every presumed “harm” listed in the suit: either easy
solutions already exist, or a lack of benefit conveyed by the state to a same
sex pairing available to a married man and woman has the legitimate purpose of
fostering procreation. Any discrimination here has an entirely legitimate
purpose and is not done out of some perceived animus to those who practice
homosexuality. Indeed, to treat these different kinds of couples the same privileges
the pair that practice homosexuality, for their activities convey no benefit to
the state.
Which, if a state wants to extend
that privileging, it may do so, and some have by democratic means. But if it
doesn’t, there’s no constitutional reason why it must be forced to do so. And
any court that values the Constitution and does not place itself above it will
agree.
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