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Wednesday, Oct. 22, 2014

Federal judge upholds Louisiana's same-sex marriage ban

Compiled by Kelsey Dallas, Deseret News National Edition

Published: Thu, Sept. 4 9:00 a.m. MDT

(Matt Gade, Deseret News)

A federal judge upheld Louisiana's same-sex marriage ban on Wednesday, delivering a victory to traditional marriage supporters after more than two dozen losses in both federal and state courts in the past 14 months.

Gene Mills, president of Louisiana Family Forum, responded to the ruling on the organization's website, calling it a win for "the people's vote on marriage."

"It is our belief that this Louisiana legal team and their compelling argument should be the defining case that settles the question of whether a state has the right to define marriage as between one man and one woman, or whether the courts will take that right from the people," he said.

In 2004, 78 percent of Louisiana voters approved an amendment to the state constitution banning gay marriage, according to the Associated Press.

Gay rights advocates said they would appeal the case to the 5th U.S. Circuit Court of Appeals, which already has before it an appeal by the state of Texas of another federal judge's ruling that struck down that state's gay marriage ban, AP reported.

Freedom to Marry, a lead organization supporting same-sex marriage, described the ruling as a reminder that its work is far from done. In a blog about the Louisiana case, the organization's founder and president, Evan Wolfson, was quoted as saying, "We've won nearly all of the 40 state and federal marriage cases this year. … This loss is why couples should not have to fight state by state, case by case, year by year. It's time for the Supreme Court to rule nationwide."

U.S. District Judge Martin Feldman upheld Louisiana's ban, as well as "the state's refusal to recognize same-sex marriages performed legally in other states," AP reported. Feldman agreed with the state's claim that the Supreme Court's Defense of Marriage Act decision in June 2013 empowered "state voters and legislatures to define marriage."

Feldman is the first federal judge to uphold a gay marriage ban since the U.S. Supreme Court last year struck down a federal ban on recognizing gay marriage, according to Reuters.

"Since the June 2013 Supreme Court ruling … nearly 30 federal and state courts have ruled against bans on same-sex marriage at the state level," Reuters reported. "Nineteen U.S. states and the District of Columbia allow same-sex marriage."

While Feldman is the sole federal district judge to rule for traditional marriage, a state judge in Tennessee last month also ruled against same-sex marriage in a case that involved two gay men who were married in Iowa and sought a divorce in Tennessee. Scotus blog reported that Roane County Circuit Judge Russell E. Simmons Jr. concluded that "neither the Federal Government nor another state should be allowed to dictate to Tennessee what has been a state's responsibility," namely, defining marriage.

Feldman ruled Louisiana had "a legitimate interest in linking children with intact families formed by their biological parents, and by ensuring that fundamental social change occurs by social consensus through democratic processes." The judge was also concerned about "inconvenient questions" that have yet to be addressed by legal authorities in the midst of widespread support for same-same marriage.

"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? What about a transgender spouse? Is such a union same-gender or male-female?" he wrote. "All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs."

Feldman discussed his departure from the recent trend in rulings at several points within his opinion, The Huffington Post reported.

"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."

Feldman's nod to the Supreme Court's eventual involvement calls attention to a shared sense in the legal community that the same-sex marriage debate will not be resolved unless the Supreme Court takes up one of the many appeals on its doorstep from lower courts.

"Three cases already are pending at the court that the justices can choose from, involving fights over the bans in Virginia, Utah and Oklahoma. Whichever one they choose would likely be the most momentous civil rights case in years," Reuters reported.

Feldman explained in his opinion that the Supreme Court or 5th Circuit Court would need to define gay people "as a protected class in discrimination cases" before he could feel comfortable overturning a ban, the AP reported.

"In light of still-binding precedent, this Court declines to fashion a new suspect class," Feldman wrote. "To do so would distort precedent and demean the democratic process."

Email: kdallas@deseretnews.com Twitter: @kelsey_dallas

Recommended
1. Anti Government
Alpine, UT,
Sept. 4, 2014

They will just keep appealing it until they find a liberal judge to over-rule it. That is how the "law" is determined these days.

Just find a judge who has a personal agenda that supports your issue and suddenly bam the law is changed in your favor.

2. MDurfee
OREM, UT,
Sept. 4, 2014

It's nice that at least one judge has read the constitution and understands the powers granted to the states. We need a way to get rid of activist judges that legislate from the bench.

3. Daedalus, Stephen
ARVADA, CO,
Sept. 4, 2014

Judge Feldman skipped a critical step in applying rational basis review.

Feldman explains rational basis review: the "classification drawn by the statute [must be] rationally related to a legitimate state interest."

Louisiana asserts two interests: "linking children with intact families formed by their biological parents, and...ensuring that fundamental social change occurs by social consensus through democratic processes." These meet the low threshold of 'legitimate state interest'. And in the abstract, these are not irrational aspirations for society.

But that is not enough.

The 'rational' in rational basis review applies to the connection between the type of people the state singles out for disparate treatment and the achievement of these goals -- not merely the goals themselves.

In Romer, SCOTUS clarifies: "By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law."

Feldman provides no analysis or explanation for concluding there is a rational relationship between excluding same-sex couples from marriage and Louisiana's stated interests.

On appeal, this will be be remanded with instructions to Feldman akin to a math teacher: "show your work".

4. CHS 85
Sandy, UT,
Sept. 4, 2014

@MDurfee

We need to rid of judges who disagree with your positions, right? That's what the judiciary is supposed to do - check with MDurfee in Orem, Utah before rendering decisions.

5. Strachan
Bountiful, UT,
Sept. 4, 2014

@Anti-Government

Can you point to any specific instances where same sex marriage advocates have kept appealing until they found a "liberal judge"?