Louisiana Logic

Rob Tisinai

September 3rd, 2014

I’m having some trouble with Judge Feldman’s decision upholding Louisiana’s ban on marriage equality. I’m not a lawyer, though, so perhaps others can correct me.

For instance, in explaining why heightened scrutiny applied in the Loving case but not here, Feldman writes:

Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.

But here’s the first section of that amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It does not “expressly” mention race. Nor does the rest of the amendment.

Feldman then dismisses the argument that the ban discriminates based on gender:

Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders–whether between two men or two women.

He seems to be saying that because the law applies to both genders equally, it does not discriminate based on gender. The odd thing, though, is that in Loving, defenders of the interracial marriage ban tried the same tactic, saying that the ban did not discriminate because it applied to all races — but the Supreme Court expressly rejected that reasoning:

…we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the “integrity” of all races.

So you can’t use Loving to say it’s okay to discriminate “even-handedly.” (It’s striking that Feldman and the Supreme Court both used that phrase.) Further, it’s reasonable to think a gender-based classification of people and their rights would also be repugnant to the Fourteenth Amendment. (And remember, Feldman is addressing gender discrimination in this bit, not orientation-based discrimination.)

Now that Feldman has used this flawed (to my mind) reasoning to justify rational-basis scrutiny of Louisiana’s ban (the easiest level of scrutiny for a law to pass), he looks for that rational basis and finds it in this:

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.

Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents. Louisiana’s regime pays respect to the democratic process; to vigorous debate. To predictable controversy, of course.

A couple problems here. First, about that societal interest in ensuring that fundamental social change be cultivated via the ballot or legislature instead of the courts: this is an invitation never to find any law unconstitutional, no matter how great an affront to the Constitution it may be. Feldman hedges his way out of this with the qualifier, “in this case.” But why, in this case? He never explains. The closest he comes is in his comments about linking children to their biological parents. But this is inadequate. Such a policy goal explains why the state permits biological parents to marry. It explains not at all why other marriages should be banned. This is a huge hole in Feldman’s reasoning, and I suspect there really is nothing that could fill it.

There’s quite a bit more in the decision, but this seems to be the core of it. Feldman settles on rational-basis scrutiny by using flawed reasoning and flat-out mistakes about what the Fourteenth Amendment says, and then fails in his attempt to find that rational basis.  To my untrained eye, this decision looks easy to challenge on appeal. Any lawyers out there care to comment?

Mark F.

September 3rd, 2014

Rob,

The 14th Amendment does not expressly mention race, BUT it was widely understood at the time of its adoption to mean race.

Nathaniel

September 3rd, 2014

“It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts that have spoken to this pressing issue, if this Court were confident in the belief that those cases provide a correct guide.”

This is telling. His constant reference to the unanimous decisions in favor of equality, and his constant use (and even praise) of dissenting opinions to inform his decision suggest he is as interested (if not more so) in being celebrated as the first to break with the trend, as he is in maintaining that there is no such thing as “gay marriage.”

There is also the requisite slippery-slope appeal: “And so, inconvenient questions persist. 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?” Of course, he asserts that same-sex marriage is a “new” thing, distinct from marriage, yet these examples include opposite-sex arrangements. If the only right to marriage is that of opposite-sex arrangements, how would banning same-sex marriage stand in the way of these other examples?

All in all, I agree – this decision fails to satisfactorily explain how it is justified.

Ben in oakland

September 3rd, 2014

Nathaniel, the way I always put it is:

If a man can marry a woman, why can’t he marry his daughter/sister/niece? And what one earth has that to do with same sex marriage?

Michael Moore

September 3rd, 2014

Well, IANAL either. But perhaps what Judge Feldman meant is that the 14th Amendment has been interpreted as expressly condemning racial discrimination. The amendment itself doesn’t specifically mention race, but alleged violations of the Due Process Clause automatically trigger strict scrutiny when government action applies to a suspect class. SCOTUS precedent firmly establishes race as a suspect class. So for all intents and purposes, judges must use strict scrutiny in cases involving fundamental rights or due process when race is a factor. Since race was a factor in Loving, that’s why strict scrutiny applies there even as it doesn’t apply here.

SCOTUS has so far refused to provide clarity on what level of scrutiny sexual orientation should get. Unless or until it does, judges are going to be reluctant to create a new suspect class.

Nathaniel

September 3rd, 2014

Indeed, Ben. I have seen elsewhere the argument that, if you can’t justify bans on one sort of relationships on its own merits, using another sort of banned relationship as justification shows the weakness not only of the first ban, but also of the second. In other words, if maintaining your ban on polygamy is your justification for banning same-sex marriage, one must question if you even have good reasons to ban polygamy. I guess our detractors see that themselves, given their tendency to cling to the slippery slope argument, but really, each type of relationship should be judged on its own merits. To do otherwise does disservice to the very sort of earnest debates this judge purports to support with his decision.

Paul Douglas

September 3rd, 2014

I think Judge Feldman should have recused himself. As a heterosexual male (with a lot of privilege), he could in no way judge impartially on the topic of marriage equality.

Richard Rush

September 3rd, 2014

If the impetus for the 14th Amendment was race, then the authors couldn’t have just forgotten to mention it. They must have had a specific reason not to mention race, and that must have been because they intended the Amendment to have applicability far beyond the limitation of race. (Obviously, I’m not a lawyer)

Timothy Kincaid

September 3rd, 2014

Richard,

I often marvel at how those constitutional principles we so admire are termed just as that: principles. They didn’t address problems, they addressed thoughts and ideas.

They could have said, “all white citizens and all negro citizens should be treated equally under the law” but that would have been a fix to an specific problem. Rather, they conceptualized WHY this particular solution was the approach. Not just because “slavery is bad” but because treating one person differently under the law based on an arbitrary immaterial trait failed the glorious ideal of democracy. They addressed the idea and dream of a perfect society rather than apply a bandage.

Feldman, for all his championing of ‘the democratic process’, fails to comprehend the underlying principles that allow such a process to have value: equal application of the law to all.

Priya Lynn

September 3rd, 2014

“Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders–whether between two men or two women.”.

As I heard judges in one of the other marriage equality cases discuss, this doesn’t justify the discrimination because the right to due process under the 14th amendment doesn’t apply to groups like men, women, or blacks and whites, it applies to individuals regardless of which group they belong to. So the gay marriage ban may treat men and women equally as groups but it does not treat individuals equally as it allows Suzy to marry John but does not allow Ted to marry John.

The 14th amendment applies to individuals, not groups and that is why it is not enough to treat men and women as groups equally, the law must treat individuals equally (regardless of their gender). This argument was addressed by the court in Loving as well who also noted that the 14th amendment requires equal treatment of individuals, not equal treatment of races.

Timothy Kincaid

September 3rd, 2014

Priya Lynn is quite right, laws “applied evenhandedly” which have very different consequences to different people are not justified by that argument.

A law designed to disadvantage gay citizens is not justified because the particulars – which have no impact whatsoever on a heterosexual citizen – are “applied evenhandedly”. The terms of the law are predicated on specific circumstances and designed to disadvantage certain individuals.

As Justice Scalia once noted, “a tax on yarmulkes is a tax on Jews”.

Priya Lynn

September 3rd, 2014

“The 14th Amendment does not expressly mention race, BUT it was widely understood at the time of its adoption to mean race.”.

I think it may have been widely understood to have been implemented due to issues of race but I find it inconceivable that the authors of the 14th amendment meant for it to only apply to issues of race.

Michael Moore

September 3rd, 2014

TK: “A law designed to disadvantage gay citizens is not justified because the particulars – which have no impact whatsoever on a heterosexual citizen – are ‘applied evenhandedly’.”

The problem is that there are two ways of viewing whether marriage law is “designed to disadvantage gay citizens.” One way holds that the purpose of laws that limit legal marriage to opposite-sex couples is to discriminate against people who want to marry a same-sex partner, and therefore are designed to disadvantage a specific group. The other way holds that the purpose of those same laws are for the state to prioritize the stability of opposite-sex couples by making certain benefits available to those couples, and therefore are not designed to disadvantage a specific group. In the first view, discrimination is the purpose of those laws; in the second, discrimination is a consequence of those laws.

Judge Feldman went with the second view.

Priya Lynn

September 3rd, 2014

Michael, the thing is that there is no need to deny marriage to gays in order for marriage to provide stability to heterosexual couples. Marriage will do just as well at stabilizing heteorsexual couples regardless of whether or not gays are allowed to marry. Disadvantaging gays by denying them the right to marry isn’t balanced off by any benefit to heterosexual couples, there is no good achieved for heterosexuals that justifies the harm to gay couples.

As the justices in the seventh circuit appeals court said (paraphrased):

“If gays are allowed to marry will heterosexuals marry less often? If we prevent gays from marrying will that result in heterosexuals who otherwise wouldn’t marry doing so? No, of course not, the idea is absurd. There is no benefit to heterosexual couples resulting from the denial of marriage to gays, there is no resulting good that justifies the bad”.

Michael Moore

September 3rd, 2014

Yes, Priya, I agree, “there is no need to deny marriage to gays” to accomplish those goals. But that is where the question of scrutiny comes in. If you accept that the state has a legitimate interest in creating a legal framework for marriage (that is, if you accept that there should be such a thing as civil marriage), then you have to figure out where to draw the line that balances the state’s ability to determine who can benefit from that framework with the rights of residents of that state not to discriminated against.

It is clear enough from SCOTUS precedent that the a law must withstand strict scrutiny in order to be upheld if that law has the effect of discriminating against people based on their race. Meaning: that law must be as narrowly tailored as possible so as to accomplish a legitimate policy goal of the state. So if we were talking about interracial marriage, your reasoning that “there is no need” would clearly carry the day. That would mean the law is not narrowly tailored, not narrowly enough to withstand strict scrutiny.

But that is not the standard applied in this ruling. The standard the judge used is “rational basis,” which means that the state has to show it has a legitimate purpose for conferring the legal benefits of marriage on opposite-sex couple only. Under this standard, it doesn’t matter that “there is no need” — what matters is, does the state law satisfy a legitimate policy goal of the state? With rational basis review, only laws that are found not to be rationally related to a legitimate government interest are overturned.

Steve

September 4th, 2014

The idiot doesn’t even understand what heightened scrutiny means. At one point he lists the three standards as “rational basis, intermediate scrutiny and heightened scrutiny”. Bzzz! Wrong!

Also note the part where he says being gay a is a “lifestyle choice”

Ben in Oakland

September 4th, 2014

Michael, you still have the problem of gay people with children, and heterosexuals who don’t want them. The benefits of marriage are denied the group that meets it, but conferred upon the group that :doesn’t.

Eric Payne

September 4th, 2014

Rob,

Don’t you recognize the arguments and rhetoric that’s been used by NOM and other anti-marriage equality pundits? Feldman — a Reagan Conservative — simply followed that “reasoning.”

I had pretty much expected Feldman would make a ruling like this when he asked to be able to determine the constitutionality of same-gender marriage bans, en toto, rather than just the limited question of recognition of an out-of-state marriage license recognition with which he was charged.

He was chomping at the bit to make a splash — and since the overturning of states’ bans was, literaly, becoming “old news,” there was only one way he could hit the water with enough force to be noticed.

So Feldman did his belly-flop. Good for him. He will almost certainly be reversed on appeal… that is, if the Fifth Circuit agrees to take the case AND the Justices of the Court actually read the citations Feldman uses to support his ruling, instead of just Feldman’s erroneous interpretations.

Hunter

September 4th, 2014

His appeal to resolution of this question through “the democratic process” (right-wing code for scare campaigns that stampede conservative voters to the polls in off-year elections) is in direct contravention of American law — fundamental rights are not subject to popular vote. His cop-out is that there is no fundamental right to same-sex marriage, but the Supreme Court, in finding that marriage is a fundamental right, has avoided limiting it: the Court has not found that there is a fundamental right to interracial marriage, or convicted felon marriage, or deadbeat dad marriage, just that there is a fundamental right to marriage. Over and over again. In cases going back to 1888.

Rob

September 4th, 2014

There is textual reason to believe that the 14th Amendment extends beyond race. By it’s text, the 14th Amendment’s equal protection clause mentions persons. But the 15th Amendment, by its text prohibits denial of the right to vote based on “race, color, or previous condition of servitude” These amendments were passed by the exact same Congress. They knew how to write the word “race” if they wanted the equal protection guarantees to by so restricted.

Timothy Kincaid

September 4th, 2014

Michael,

Yes, Judge Feldman took the second view: that the state of Louisiana banned gay marriage not because it was gay marriage, but for some other reason entirely.

There’s a problem with that. It is untrue. Empirically untrue with a long and very public trail of evidence.

One of the flaws in the entire debate, in my opinion, has been the willingness on the part of the courts to pretend to believe that the decision to ban gay marriage had something to do with the rational motivations presented by the states as to why the state and its people acted.

We know why the laws were created. It’s not a mystery shrouded in the mists of time. We were there; we heard the debates; we saw the ads. And the movement to ban gay marriage had zero to do with the connection of children to their biological parents and everything to do with disadvantaging gay people.

Which is, I think, one of the reasons that we found the Seventh Circuit’s questioning – especially that of Judge Posner – to be so refreshing. He simply refused to play along with the pretense.

Ben in Oakland

September 4th, 2014

I have yet to hear anyone ask the question:defend marriage from WHAT, exactly? Why does it need defense from people getting married?

The very idea that marriage must be defended from the likes of me ought to be proof positive enough that this comes from animus, and no where else. That they seek to justify the defense with silly arguments that a child could take apart merely provides the frosting on the bigot cake,

Priya Lynn

September 4th, 2014

Michael, the law can’t violate the 14th amendment by denying gays the right to marriage merely because marriage is good for heterosexuals.

Priya Lynn

September 4th, 2014

Further Michael, the state has not shown that it has a legitimate purpose for conferring the legal benefits of marriage on opposite-sex couple only. It has shown that it has a legitimate purpose for conferring marriage upon heterosexual couples, but not for denying marriage to gays which is entirely what the gay marriage bans are about. The same reasons that marriage is a benefit for heterosexual couples also applies to gay couples and their children.

Rob Tisinai

September 4th, 2014

I agree with Pryia. Establishing a rational purpose for opposite-sex marriage is not the same as establishing a rational purpose for excluding gays from marriage.

There’s a subtle distinction here. On the one hand, there can marriage laws that are only for opposite couples because no one ever seriously considered anything else (the situation we had for centuries). Cal that a passive ban on same-sex marriage.

Then there are laws put in place with the specific intent of banning same-sex marriage. Call them active bans on marriage equality.

We left the passive bans behind at least a decade ago. Courts are now dealing with active bans. So the relevant question is not, “What is your rational basis for laws allowing opposite-sex marriage?” (as Judge Feldman seems to think). Rather, it’s: “What is your rational basis for laws intended to ban same-sex marriage?”

Priya Lynn

September 4th, 2014

The government established the legalframework for civil marriage first and the courts established that marriage was a fundamental right of all citizens. That accomplished (to the degree possible) the purpose of stabilizing opposite-sex couples by making certain benefits available to them. After that laws were passed specifically to prevent gay marriages and those laws in no way provided additional stability to heterosexual couples or in any way added to the “prioritization” of the stability of those marriages. The gay marriage bans didn’t satisfy any legitimate policy goal of the state, they are in no way rationally related to a legitimate government interest so the gay marriage bans do not even pass the rational basis review.

Nathaniel

September 4th, 2014

Thanks, PL. That was what was bothering me about Michael’s response. The very reason for these courts to look at the issue in the first place is an agreement by both sides that the state has a place in regulating marriage. Nobody is in the courts right now arguing otherwise, so that is not the limit of the question of rational basis. Rather, the question should be: Is there a rational basis for the state to limit those rights only to certain types of people? You don’t even have to ask the question about disadvantaging excluded groups (this is also a given, otherwise there would have been no point in the laws), or apply strict scrutiny. You still ask if there is a benefit, but you ask that for each excluded group, and if, as in the case of same-sex couples, you see no benefit for the state, or those it claims to protect, you should find no rational basis for the law.

Priya Lynn

September 4th, 2014

The only way the government can justify giving preferential treatment to one group in society over others is if that group has been historically disadvantaged. So, if American heterosexuals had been historically disadvantaged and politically powerless the government could make a case for giving them preferential treatment over gays (as in affirmative action). But this is obviously not the case with American heterosexuals. There is no rational basis for giving heterosexuals preferential treatment over gays.

Priya Lynn

September 4th, 2014

I’m glad it made sense to you Nathaniel.

Priya Lynn

September 4th, 2014

“The only way the government can justify giving preferential treatment to one group in society….”.

What I should have said is “One way the government can justify giving preferential treatment to one group in society…”

Deric

September 4th, 2014

One of the more powerful statements from the 7th Circuit arguments was Judge Hamilton’s comment that the “rational basis” that the state was arguing was simply a reverse-engineered logic created to provide something to cover for the real reason the bans were implemented. I think that emphasizing this “reverse-engineered” quaility should be done more. It definitely fits in with Rob T’s observation distinguishing the passive bans vs. the active bans. Found that very illuminating too.

Priya Lynn

September 4th, 2014

I was thinking the same thing too about this post Deric.

donato

September 4th, 2014

It’s Louisiana Logic

Because the Bible.

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