A federal judge has rejected the reigning judicial trend and held that Louisiana has the right to define marriage as one man, one woman. This is the first time since the Supreme Court struck down the Defense of Marriage Act in 2013 that a federal judge has upheld a state-level ban.

From the opinion, via the Washington Post:

“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,” Feldman wrote.

“Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this court is but one studied decision among many.”

You can read the full opinion here.

In his opinion, U.S. District Judge Martin Feldman makes the point that most legal scholars have been—until now—unwilling to make: that the Supreme Court has never held that sexual orientation constitutes a protected class.

Because of this inconvenient technicality, proper brief writing challenging same sex marriage bans should focus on whether or not the ban came about as a result of some sort of animosity toward gay people. This, of course, was not sufficiently proven:

“So, is there even any rational basis for Louisiana’s resistance to recognize same-sex marriages entered into in other states, or to authorize same-sex marriages in Louisiana? Plaintiffs contend not, and conclude that Louisiana’s laws and Constitution can only be supported by a hateful animus.

“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. 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 ofsocial scientists (ardently disputed by many others, it should benoted) 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.”

By and large, legal scholarship in the courts has held that same sex marriage rulings are unconstitutional because they violate the 14th Amendment’s equal protection clause.

Currently, same sex marriage bans in Virginia, Oklahoma, Utah, and Florida are also working their way through the federal court system.

Washington Post Graphic Same Sex Marriage Sept 2014

(Source: Washington Post)

In July, a federal court struck down Virginia’s ban, spurring an emergency appeal to the Supreme Court. The Court intervened, and issued a stay on the ruling. In that case, although Virginia Attorney General Mike Herring has declined to defend the state’s ban, he has acknowledged that these cases are likely to head to the Supreme Court for a final ruling.

Put on your helmets, internet. These cases could make for an interesting October session.