U.S. District Judge Martin L. C. Feldman, appointed to the federal bench by President Ronald Reagan in 1983, has rejected a constitutional challenge to Louisiana’s state constitutional and statutory ban on same-sex marriage. Parting company from every federal district judge who has decided a marriage equality claim since the Supreme Court’s June 2013 decision striking down a federal ban on the recognition of same-sex marriages, U.S. v. Windsor, Feldman insisted that existing precedents preserve Louisiana’s right to treat this as a political question to be resolved by its voters and elected legislators. The case is Robicheaux v. Caldwell, 2014 U.S. Dist. LEXIS 122528, a consolidation of two separate cases filed on marriage recognition and the right to marry.
Surprisingly, Feldman did not premise his ruling on the Supreme Court’s 1972 rejection of a marriage equality case from Minnesota, Baker v. Nelson, observing that the state had not sought to defend its marriage ban on that basis. Instead, Feldman concluded that no fundamental right was at stake, no heightened scrutiny was required under either the Due Process or Equal Protection Clauses of the 14th Amendment, and that Louisiana could meet the rational basis test through two state interests: “linking children to an intact family formed by their biological parents,” and “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.”
In effect, although giving lip service to the procreation aspect of the case, Feldman’s opinion is a lengthy salute to Federalism, which, he proclaims, is “not dead.” He relies, among other things, on the part of Justice Anthony Kennedy’s opinion for the Supreme Court in the DOMA case that focused on the historical role of the state in defining and controlling the institution of marriage. “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens,” Kennedy had written. “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘protection of offspring, property interests, and the enforcement of marital responsibilities.'” Kennedy went on at length on this, which was key to his conclusion that a federal law refusing to recognize state-approved marriages was an unusual intrusion by the federal government into a role traditionally reserved to the states. To bolster this point, Feldman cited Chief Justice John Roberts’ concurring opinion, arguing that the case was essentially a federalism case that had nothing to say about whether states were required to allow or recognize same-sex marriages.
Turning to the specific equal protection and due process arguments, Feldman pointed out that the Supreme Court had notably refrained from finding that sexual orientation discrimination involves a suspect classification meriting strict scrutiny review, and that existing precedents in the 5th Circuit would use the deferential rational basis test. He rejected the argument that the Supreme Court’s actual approach in Romer v. Evans, the 1996 case striking down Colorado’s anti-gay Amendment 2, had used some form of heightened scrutiny, or that the subsequent rulings in Lawrence v. Texas, striking down the Texas anti-gay sodomy law or Windsor had used or would require heightened scrutiny. He also emphasized Justice Kennedy’s statement in his Lawrence opinion that shielding gay relationships from criminal law did not necessarily mean extending legal recognition to such relationships.
Evaluating the standard of judicial review under the Due Process clause, Feldman parted company from most of the other district judges and the majority of judges on the 10th and 4th Circuit Court of Appeals panels in their recent marriage equality decisions from Utah, Oklahoma and Virginia, rejecting the idea that this case was about the “fundamental right to marry.” Instead, he insisted, it was about a claim to a right for “same-sex marriage.” As such, he asserted, such a right could not be deemed fundamental because it was not deeply rooted in our history or tradition. Again, he emphasized Justice Kennedy’s statements in his Windsor opinion about how same-sex marriage was a recent phenomenon. And, since a fundamental right was not at stake, once again he concluded that this was a rational basis case.
Feldman also rejected the plaintiffs’ argument that the marriage ban discriminated based on gender, requiring heightened scrutiny, relying on Loving v. Virginia, the 1967 Supreme Court ruling striking down a law against interracial marriages. In that case, the Supreme Court rejected the state’s argument that the statute was not discriminatory because members of both races were equally forbidden from marrying members of the other race. “Plaintiffs’ argument betrays itself,” he wrote. “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. 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. Same-sex marriage is not recognized in Louisiana and is reasonably anchored to the democratic process. This Court is therefore satisfied that rational basis applies.”
Feldman’s confident assertion is factually inaccurate in one glaring respect. The 14th Amendment never mentions race — the word never appears — and expressly adopts an equal protection principle without referring to any specific grounds for discrimination. There is no express ban on race discrimination in the 14th Amendment, although the historical context of its enactment clearly supports the interpretation under which race discrimination is strongly outlawed. Thus, his statement goes well beyond the dissent in the Oklahoma case that he cites as authority for it. (Feldman cites frequently to the dissenting opinions in both the 10th and 4th Circuit cases.)
As to the rational basis argument, he wrote, “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. The fact that marriage has many differing, even perhaps unproved dimensions, does not render Louisiana’s decision irrational. Nor does the opinion of a set of social scientists (ardently disputed by many others, it should be noted) that other associative forms may be equally stable, or the view that such judgments vilify a group (even though one finds them in a majority of the states, but not in all states). Even the fact that the state’s precepts work to one group’s disadvantage does not mandate that they serve no rational basis. The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid.”
Feldman also rejected the idea that Louisiana’s democratically approved policy choice “could only be inspired by hate and intolerance.” Recalling the vigorous public debate over the marriage amendment, he wrote, “All sides for and against grappled with this solemn issue. The Court declines to assign an illicit motive on the basis of this record, as have also two federal appellate judges as well,” noting the dissenting opinions in the 10th and 4th Circuit cases, and particularly Judge Holmes’ concurring opinion in the Oklahoma case, agreeing with the result but rejecting the idea that the Oklahoma marriage amendment was infected with anti-gay animus.
Judge Feldman also rejected an argument that requiring same-sex couples who married out-of-state to identify themselves as unmarried on their Louisiana tax forms somehow violated their 1st Amendment right against compelled speech. He pointed out that the 5th Circuit, whose rulings are binding on him, had recently rejected such an argument in U.S. v. Arnold, 740 F.3d 1032 (2014), specifically quoting an 8th Circuit opinion to the effect that “there is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly society.” The 5th Circuit opinion specifically rejected the claim that required disclosure of information on a tax form is “compelled speech” in violation of the 1st Amendment.
The concluding section of the opinion clearly signals Judge Feldman’s resistance to being stampeded into ruling for plaintiffs based on the accumulation of recent marriage equality opinions. “This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.” However, he concluded, these courts had stepped outside of their appropriate role and “appear to have assumed the mantle of a legislative body.” “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,” he continued, “if this Court were confident in the belief that those cases provide a correct guide.” But he has concluded that all of these many courts have misconstrued U.S. v. Windsor. In any event, he said, the 5th Circuit “has not yet spoken” and ultimately the Supreme Court will have to decide the issue.
Plaintiffs, who are represented by private attorneys not affiliated with gay rights litigation groups, will probably appeal this case to the 5th Circuit, which has recently received an appeal by the state of Texas from a pro-marriage equality ruling rendered there last winter. If the plaintiffs move quickly, it is possible that their appeal could be consolidated with the Texas case for simultaneous hearing before the same three-judge panel.
Meanwhile, rulings are anticipated from the U.S. Courts of Appeals for the 6th and 7th Circuits, both of which heard arguments in marriage equality cases during August. Most legal observers expect the 7th Circuit to rule for marriage equality and anticipate that the 6th Circuit may rule against it, based on the composition of the three-judge panels and the questions and comments of the judges during the oral arguments. Audio recordings of those arguments are available on the courts’ websites.
The 9th Circuit Court of Appeals will be hearing arguments on September 8 in cases from Idaho, Nevada and Hawaii. The recently-announced panel of judges in the 9th Circuit is notably gay friendly, including Stephen Reinhardt, the judge who wrote the panel decision striking down California Prop 8. Another judge on the panel wrote an opinion overturning a district court’s dismissal of a challenge to the “don’t ask, don’t tell” anti-gay military policy. The 9th Circuit also has a precedent establishing that sexual orientation discrimination claims merit heightened scrutiny, so it seems likely that the 9th Circuit will produce a pro-marriage equality decision, since legal commentators generally agree — as do almost all the judges who have ruled in these cases — that marriage bans cannot survive heightened scrutiny. A recent federal district court pro-marriage equality decision in Florida will be appealed by that state to the 11th Circuit shortly.
On September 29, the Supreme Court will hold its first conference of the new term to decide which appeals to hear. Petitions are pending by Utah, Oklahoma and Virginia seeking review of court of appeals rulings from the 10th and 4th Circuits in favor of marriage equality. While it is possible that the Court will grant one or more of those petitions early in the term, it might wait to see what develops in the other circuits before moving forward. However, even if the Court waits until November or December to grant review in a marriage equality case, it is likely that a decision would be rendered before the end of the Court’s term in June 2015.Tags: District Judge Martin Feldman, Louisiana gay marriage, Louisiana marriage equality, Louisiana same-sex marriage, Robicheaux v. Caldwell