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Federal Judge Upholds Louisiana Same Sex Marriage Ban

Federal Judge Upholds Louisiana Same Sex Marriage Ban

This is all probably heading to the U.S. Supreme Court.

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.


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Humphrey's Executor | September 3, 2014 at 7:49 pm

Just what year does that judge think we’re living in? 2011?

FINALLY! A Judge who is not willing to simply kowtow to the LGBTQ minority that tries to shout the loudest and try to silence their enemies by calling them bigots.

Ultimately, this is what the SCOTUS must hang its hat on. SCOTUS has never held that Sexual Orientation is a protected class. If the SCOTUS can bring itself to make the pronouncement that Sexual Orientation is not a protected class, then all of these challenges fall back to a standard of “rational basis.” I think that the States can make a good defense of there being a “rational basis” for marriage to be between one man and one woman.

Such an argument is simple: The State has an interest in fostering certain social mores and certain familial structures, and has a right to encourage those structures by providing benefits to individuals who enter into such a “preferred” contractual arrangement. Further, there is equal protection under the law, as everyone is entitled to marry someone of the opposite gender. Love has absolutely nothing to do with the “legal” argument.

If the States can’t make such a rational basis argument, then it’s time for the states to get out of the marriage business completely, and to amend each and every statute to eliminate any benefit that marriage provides, and then to deny any federal benefit within their borders via separate legislation (Impose a “marriage penalty” that offsets any benefit of marriage from Federal Income Tax or other Federal law purpose and watch the populace scream…. That will be a hoot and a holler).

    Ragspierre in reply to Chuck Skinner. | September 3, 2014 at 9:01 pm

    You get to the same place by burning down the Federal tax code.

    It should NEVER have been used by ANYBODY as their social engineering bulldozer.

    Its sole purpose should be to raise funds to finance the Constitutional functions of the Federal government, which are remarkably modest.

    “Such an argument is simple: The State has an interest in fostering certain social mores and certain familial structures, and has a right to encourage those structures by providing benefits to individuals…”

    Exhibit A of how Statism and Micromanagement isn’t exclusively a Leftist trait.

    We despise the Left for habitually using the hammer and anvil of big government to resolve social and economic issues, yet we applaud Dominionists and GOP statists for doing the same.

      Ragspierre in reply to Aucturian. | September 4, 2014 at 10:26 am

      What a MAMMOTH lode of crap…!!!

      Marriage as a civil construct PREDATES the Republic. Hell, it PREDATES Magna Carta…!!!

      It is the soul of “small government”.

      Every culture of which (just about) we know seems to warmly approve this form of “micromanaging”…currently and historically.

      Jaaaaaaysus. That was one of the stupidest things I’ve read this week.

Thank you, President Reagan, for U.S. District Judge Martin Feldman.

TrooperJohnSmith | September 4, 2014 at 2:05 am

It’s funny that the Left sees interstate acceptance of same-sex marriage as a Constitutional right, but will not extend the same to concealed-carry. If they’d at least make that concession, they might get some “back atchya” from the Right.

Why does anybody care who somebody else marries?

    Ragspierre in reply to geoih. | September 4, 2014 at 11:01 am

    Because we care about our culture.

    And someone cannot “marry” a member of the same sex.


      Can you even explain what effect gay marriage has on your “culture”? Is that even possible?

        Ragspierre in reply to anoNY. | September 4, 2014 at 7:34 pm

        Of course.

        Now, you explain Chesterson’s Wall and how you’ve explored the issue.

          The current “reasons” for the marriage bans have already been demolished, most recently by Judge Posner in the 7th Circuit opinion from yesterday.

          Or do you have some other, newer “reasons”?

          Ultimately, your point about the “culture” doesn’t hold water, since “culture” is always changing. For instance, did you know that Jesus himself was quoted in the Bible as saying we should not marry women who have already been divorced? It’s in the Gospel of Luke. That part of the “culture” has been dead for many many years now. I wonder if you would like to bring that back?

          Ragspierre in reply to Ragspierre. | September 5, 2014 at 9:59 am

          I loath stupid and arrogant in the same package.

          Cultures DO change, moron. Often decidedly for the WORSE.

          Courts are ruling AGAISNT laws passed democratically…and overwhelmingly. Did you miss that? Or just not like democracy.

          I look on brand new “rights” twaddled out of thin air by courts with extreme prejudice. Look what a wonderful thing they created with Roe.

          I’m glad we can keep this argument civil…

          You acknowledge that cultures change, and yet you seem surprised that those same cultures want to protect “new” rights.

          I put the word “new” in quotations because these rights really aren’t new. For example, would you have called the abolition of slavery a protection of a “new” right, or would it be the realization that the rights of former slaves had always existed and had just never been protected?

          Ragspierre in reply to Ragspierre. | September 6, 2014 at 9:22 am

          Deal directly with the NEW “right” to abortion from Roe, coward.

          There are all kinds of forces in “culture” militating for “rights” of one kind and another. Many of them are risible…now. Like the one you are advocating here. Just a few years ago, it was a very bad idea…including among most homosexuals. (Look it up, stupid.)

          We are told that free contraception is a “right”.

          Your slavery argument conflates natural rights with legal rights. Where do you find a natural right to “marry”? Be careful how you answer, fool. Because nobody is arguing against free association. Anybody or anybodies can…and do…have sex and live with each other. But they cannot “marry”, because that has a meaning, and their arrangement ain’t it. So, where is the natural right to marry?

          Just to qualify you, what’s your position on open borders?

I have never understood how banning same-sex marriage can be a violation of someone’s civil rights when there is no civil right to marriage in the first place.

The moral hazard is created through selective exclusion. If they normalize homosexual behavior and unions, then they must normalize other dysfunctional and unproductive relationships and unions. Furthermore, not even children are safe, because the principle of consent is established by an article of faith promoted by Judeo-Christian morality.

    anoNY in reply to n.n. | September 4, 2014 at 7:15 pm

    I know many gay couples here in FL, and I must say they are no more dysfunctional than the straight couples I know…

Marriage is a heterosexual social institution, the purpose of which is to regulate heterosexual sexual behavior for the benefit of children that may created through sexual relationships. The social institution of marriage contains the ideals, values, and roles that tell heterosexuals how they should behave.

That’s what marriage IS. Marriage is NOT merely a way to give intimate partners various financial and legal benefits. So-called gay marriage is based on a fundamental misunderstanding of what marriage is. When homosexuals are included in the social Institution of marriage it necessarily changes the institution and related ideals, values, and roles.

For example, one of the ideals of marriage is not having sex before marriage. This is to ensure that children are conceived only within the marital relationship. But in same-sex relationships — that are necessarily sterile — sex before marriage doesn’t matter. For centuries the act of coitus was the act that consummated a marriage. But how does one “consummate” a same-sex marriage? Pardon me if I refrain from speculating on that.

The rational basis of exclusively heterosexual marriage is not difficult to discern — if one understands what marriage is.

    Uhm, I don’t think anyone goes by the ‘no sex before marriage’ thing these days, so by common practice that’s a wash.

    The main problem is that government has gotten involved in the business of marriage, somewhere it has no good reason to muck about in.

    Traditionally marriage has been solely a religious and social institution. Not a legal one. I really don’t see why the government should be a part of this at all.

      Ragspierre in reply to Sian. | September 4, 2014 at 6:42 pm

      “I don’t think anyone goes by the ‘no sex before marriage’ thing these days…”

      It is a cardinal error to get your “facts” from the popular culture. Many people elect to refrain from sex before marriage.

        Your definition of “many” must be different than Merriam-Webster’s….

          Ragspierre in reply to anoNY. | September 4, 2014 at 7:27 pm

          You don’t know wtf you’re talking about, but you are a fool…you’ve proven that.

          anoNY in reply to anoNY. | September 5, 2014 at 6:51 am

          Dear Ragspierre:

          Define “many” then…

          Ragspierre in reply to anoNY. | September 5, 2014 at 10:01 am

          Premarital sex was considered unacceptable by 30% of the population in a 2014 study, while 29% found it acceptable and 36% considered it not a moral issue.

          “Many”, stupid.

          anoNY in reply to anoNY. | September 6, 2014 at 5:50 am

          I would put forth that in my experience, young people are not crazy about waiting until marriage. The evidence for this is the growing number of out-of-wedlock births in the nation.

          Ragspierre in reply to anoNY. | September 6, 2014 at 6:56 am

          See? You don’t know WTF you are talking about.

          Teen birth rates are at the lowest level ever.

          Births to unmarried mothers have been declining for some years.

          You are an idiot…with opinions based on bullshit…and you’re a bigot.

    We have all heard that argument before. Fortunately for folks like me, Judge Posner demolished it today in the 7th Circuit opinion striking down several gay marriage bans.

Listen folks, this is important: Gay marriage is going to be the law of the land sooner rather than later. A decade or less from now, people will look upon conservative opposition to gay marriage in the same way they look upon past opposition to interracial marriage.

    Ragspierre in reply to anoNY. | September 4, 2014 at 7:26 pm


    There is no such thing as “gay marriage”. There is only the corruption of the idea of marriage.

    And you’re an idiot and a bigot.

      There you go again, using a word without understanding the meaning. It is not “bigotry” to support the idea that two loving people can marry each other (civil marriage, I don’t give a rat’s butt about religious marriage).

        Ragspierre in reply to anoNY. | September 5, 2014 at 10:18 am

        bigot: a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance.

        I know you’re a bigot because you…in an paroxysm of smug self-congratuation…stupidly aped the invidious lie that implies opposition to “gay marriage” equates to support for miscegenation laws.

        I’d be interested to know where you get this shit. You sure didn’t think it up yourself, so you have to be reading it somewhere.

        anoNY in reply to anoNY. | September 6, 2014 at 5:53 am

        I am enjoying how you obviously dislike the gay community, and yet you have the nerve to call me the bigot.

        The analogy to the anti-miscegenation laws is a strong one, considering they both ban the same thing, marriage between two people who care for each other. This analogy is convincing more and more people every year to agree with me and disagree with you.

          Ragspierre in reply to anoNY. | September 6, 2014 at 7:10 am

          You are “enjoying” a delusion, you idiot.

          I don’t have any feelings toward the “gay community”. There is no such thing. There are individuals who are homosexual, but they are not a monolith.

          Except to bigots like you, who pretend to speak for them, and who think of them as a typical victim class.

    Gay marriage is going to be the law of the land sooner rather than later.

    Unlikely. The likelihood is that the SCOTUS will hear cases involving gay marriage bans, and will come down on the side of saying “State issue, no Federal interest.” In fact, by their own jurisprudence, I think that they are required to say that the Federal Courts should be divested of the power to even hear the cases, as Marriage is an exclusively state domain. see Ankenbrandt v Richards, 504 US 689, 703 (1992).

    It is likely that the SCOTUS will simply add “marriage” to the issues of “divorce, alimony, and child custody decrees” that the Federal Courts have been divested of power to hear. see Id. Thus, it will once again become an exclusively State issue to determine whom may marry whom absent some OTHER Constitutionally protected class (Race, Color, Religion, National Origin, Citizenship [limited in several ways]).

    That is largely the way it should be, with the States being the labratories of democracy, free to implement and enact unique solutions to local problems as voted on by the Representatives of the People of the State (aka State Legislatures) or the People directly (direct democracy).

      “as Marriage is an exclusively state domain”

      But see Loving v. Virginia, where marriage was found to be a “fundamental right.” No State can restrict such rights without extremely strong reasons to do so, and 99% of federal cases (including Windsor) so far have found no such reasons.

      Either way, you know I am right. Popular support for gay marriage continues to grow, so even if the Supreme Court allows such bans, they will be defeated by vote in the near future.

      Even Will Buckley knew that conservativism could only yell “stop”, could only slow down progress…

        Ragspierre in reply to anoNY. | September 5, 2014 at 10:27 am

        See? There you go again. Your idea of “progress” is the creation of new, unheard of, and culture-crushing “rights” by courts.

        You aren’t “progressing”. You are destroying. And you haven’t the wit to answer the question about Chesterton’s Wall.

        Nobody in history had the “right” to marry. It has ALWAYS been permissive. And that for excellent reasons.

        Nor is it a rite between “two loving people”, you ignorant puke. It never was. It is a rite of passage, and it has ALWAYS been very public, since one of its most important functions is to signal the creation of a new nuclear family in the community.

          Once again you point to the “crushing” of the culture without actually detailing what that means. So, what does it mean? I want an actual fact about what the civil marriage of two men would do to you and your culture.

          Ragspierre in reply to Ragspierre. | September 6, 2014 at 7:04 am

          It destroys the whole concept of marriage, you moron.

          Two men or two women cannot “marry”.

          And you are too stupid to get that. AND you’re too stupid to get that marriage is a concept that has essentially universal value across both time and space. Every culture, every major religion, every people in history have seen the utility of marriage, with remarkably little variation on the theme of one man, one woman.