Thursday, September 4, 2014

Why the Louisiana Marriage Ruling Doesn’t Bother Me (Much)

Our love is bigger than Louisiana
The winning streak is over. I’ve lost count of how many district court wins there have been for marriage equality since the Windsor decision last June. Let’s just call it a bunch. That bunch of cases includes each of the appeals districts, and in many of those districts, there have been further rulings (including one today) that have called for overturning bans on same-sex marriage.

Judge Martin Feldman is aware that he is running contrary to the stream of opinions, and he certainly is entitled to believe that he is right and all those other judges are wrong. On the other hand, I’ve read the opinion, and this is not one for the ages. Paige Lavender (is that her real name?) writing at Huffington Post offers what she calls The 6 Most F*&%ed Up Parts Of The Louisiana Gay Marriage Ruling.

She doesn’t get to the point that I found weakest, right there on page 15 of the ruling, where Feldman writes:
Defendants rejoin that the laws serve a central state interest of linking children to an intact family formed by their biological parents. Of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus. This Court agrees.
Just how do the marriage laws link "children to an intact family formed by their biological parents”? Is there a law in Louisiana that prevents couples with children from divorcing or that compels those who have children out of wedlock to marry? How does this work?
With all that, Judge Posner’s decision for the Seventh Circuit Court of Appeals can be read as a rejoinder to Judge Feldman’s opinion. I wrote that Judge Posner sounds “grandfatherly,”[1] and indeed is concerned about the children. Judge Posner says:
The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.
As for Louisiana’s claim that things should progress slowly through the legislative process (as they know full well that it would take decades for Louisianans to toss the marriage ban in their state constitution), Judge Posner says of a similar claim from Wisconsin that:
The state’s second argument is: “go slow”: maintaining the prohibition of same-sex marriage is the “prudent, cautious approach,” and the state should therefore be allowed “to act deliberately and with prudence—or, at the very least, to gather sufficient information—before transforming this cornerstone of civilization and society.” There is no suggestion that the state has any interest in gathering information, for notice the assumption in the quoted passage that the state already knows that allowing same-sex marriage would transform a “cornerstone of civilization and society,” namely monogamous heterosexual marriage.
This strikes right at the heart of Judge Feldman’s opinion.

Judge Feldman also makes a category error in agreeing with the defendants "that there is no fundamental right to same-sex marriage.” I long ago realized that I was not fighting for a right to same-sex marriage. There is no right to same-sex marriage the same way there is no right to interracial marriage. There’s just a right to marriage. Such right can be limited only under very special circumstances. I suspect Judge Feldman would not claim that there was no right to marriage, because the Supreme Court has said that there is.

But this is why it doesn’t bother me.

It’s one, lower court decision. In the same circuit (the Fifth), there’s already a Texas case on appeal. In that one, the couples seeking to marry won. Both cases will go to the Fifth Circuit Court of Appeals. There, one side or the other will prevail. I’m betting it won’t be Texas and Louisiana.
But even if it, that just means that we’re going to Washington. As things stand, with all the circuits in agreement, the Supreme Court has every reason to deny cert. Hear a case over what? That all the circuits agree? Not going to happen. But if the Fifth dissents from this trend, there’s a circuit split and more reason for the Court to hear it.

If I opposed same-sex marriage, I’d be hoping that a circuit split never comes and that the case never reaches the Supreme Court. The potential win for opponents of same-sex marriage is very small. Their “win” is the Court saying that there is no constitutional right for same-sex couples to marry. If this decision were reached, supporters of same-sex marriage would drag this matter out for years until we win. Winning at the ballot box is tougher (and should not be necessary when rights are at stake), but it can be done.

We can already name a minority (and perhaps a majority) of the Court who feel that there is a right for same-sex couples to marry. It’s not tough to count to five. The opponents of same-sex marriage have to ante up a bigger stake at the table. If I were an opponent of gay rights, I’d be waking in a cold sweat from the fear that the case will be made that gay people are a suspect class.

Let’s take Louisiana as an example: the state has no laws protecting gay people from discrimination in housing, employment, and public accommodation. If the Supreme Court find that sexuality triggers suspect class protection, fighting any of those becomes a whole lot easier. I suspect such discrimination cannot be condoned for a suspect class.

I’m still unsure if the marriage cases will make their way to Washington. If they do, I’m confident that we’re going to prevail.

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  1. “He sounds like a kind grandfather. A kind grandfather screwing you to the wall over your failings in logic and facts.”  ↩

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