In granting
summary judgment dismissing plaintiffs who argued that Louisiana’s
constitutional ban on recognizing any marriage besides that of a single man to
a single woman violated equal protection, due process, and freedom of speech,
Feldman exposed the poverty of that argumentation. He also tackled a root
question prior to this, what kind of burden of proof states needed to regulate
in this area.
While plaintiffs argued that the
highest burden of proof was needed, thus reducing the ability of states to be
able constitutionally to regulate marriage, Feldman demonstrated in fact the
lowest was applicable, and in his opinion served notice that even if the highest
were used, the justifications as such – the state having a legitimate interest
in linking children with intact families formed by their biological parents and
by ensuring fundamental social change occurs by social consensus through
democratic processes – might well be just as compelling for that standard as
the lowest. (He didn’t address another justification, not mentioned by the
defense, facilely dealt with in Hebert
v. Kitchen, that the state has a compelling interest in promoting
procreation.)
In doing so, he showed the
sloppiness (in his terms, “intellectual anarchy”) long prevalent in arguments
that denial of same-sex marriage by states was discriminatory and denied due
process in deprivation of a “right,” uncovering inconvenient assumptions that
these proponents had to make in order to give these arguments a chance. (On the
question of the state’s administrative code violating free speech, which the
plaintiffs said occurred when two individuals with a marriage license issued by
another state whose asserted married state is not recognized by Louisiana’s
Constitution could not fill out a state tax return as “married,” he basically
laughed that one out of his court.)
One is that marriage in any form
is a “right” guaranteed under the Constitution that means to prohibit those on
the basis of gender orientation was unconstitutional. He adroitly demonstrated that
there was no jurisprudence to substantiate “gender orientation” was some kind
of protected class (in the process dispatching that this is assumed from Romer v. Evans
on this subject matter), and suggested that only through an act of judicial
arrogation of legislative powers could such an argument be sustained.
This point led to another
discussion point, but one that advocates of a right to same-sex marriage
desperately try to avoid acknowledging: if marriage is not just one thing, it
can be anything. Since same-sex marriage cannot accomplish the defining feature
of marriage between a man and a woman – procreative opportunity – then the same
rationale implicit behind same-sex marriage – when shorn of the procreative
possibility becoming nothing more than a mutual comfort and aid society – can
apply to any arrangement. Apparently, it led to awkward moments for plaintiffs’
counsel when Feldman asked how they would distinguish here, who could not come
up with a reason why even more exotic combinations could be regulated by states
but not same-sex marriage other than it would be harmful in some nebulous way.
That response obviously missed
the point and demonstrated the utter lack of logic behind their entire
argumentation. If they are to say that same-sex marriage is a fundamental right
despite no history of it and no demonstrated legislative intent in America
except in a few places in the last few years, then who are they, on the basis
of the same justification, to read out of the Constitution what NAMBLA preaches? Or what Andrew
“Dice” Clay suggests?
Even if a claim can be made that
children or animals would get hurt psychologically by permitting these forms,
isn’t that a judgment subject to change? After all, wasn’t homosexual behavior
once medically classified as a mental disorder? And what of, as Feldman pointed
out by way of example of the democratic process working out these value
judgments, all sorts of exotic human pairings or polyamory as with
fundamentalist Mormons (with a recent
case amplifying his point)? If the Constitution is a living, breathing
document adapting to changing norms, as the plaintiffs imply, why should these
norms be excluded? The logic (or lack of it) behind same-sex marriage simply
has no answer to justify privileging it while preventing these.
Finally, Feldman points out the
utter lack of faith that the plaintiffs have in the democratic process. He
astutely notes that just because an issue is contentious, even acrimonious,
does not mean that the majoritarian branches of government and voting publics
are disqualified to make a decision on it, or that the courts only are to
arbitrate a decision in that instance. The process is valuable precisely because
it reflects society’s judgment on the appropriateness of a norm, and that
hastiness in ejecting democratic processes from the decision-making on it
injures peoples’ acceptance of that kind of norm that cannot qualify as a
fundamental right.
Most intriguingly, many of
Feldman’s key arguments are drawn from extant cases in this area and from United States
v. Windsor, which set off the orgy of challenges to same-sex marriage
bans when it ruled the federal government could not ban its distribution of
benefits on the basis of one particular definition of marriage. In particular,
he cited the swing vote and majority opinion writer in that case, Associate
Justice Anthony
Kennedy, to buttress some of these points, showing how Kennedy’s statements
and logic lead him to his conclusions in this present case.
That should set off alarm bells
for same-sex marriage proponents, for if, as widely anticipated, the Supreme
Court takes up the issue this upcoming term and agrees to hear Robicheaux v. Caldwell as part of that,
it points to the Court upholding the rights of states to define marriage. It
seems unlikely that the four in the minority in Windsor would change their minds, and it would be odd if Kennedy
disavowed or substantially moved away from his words of just a couple of years
previous, prompting him to join the former minority this time.
Plaintiffs
have said they will appeal, and seemed surprised they lost. Had they
understood the issue with increased erudition, they would not have been.
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