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Tuesday, Sept. 30, 2014

Could Louisiana ruling impact Utah's same-sex marriage appeal?

By Dennis Romboy, Deseret News

Published: Thu, Sept. 4 4:35 p.m. MDT

 SarahJane Grady, executive director of Forum For Equality Louisiana speaks during a rally in reaction to the decision by a federal judge which upheld Louisiana's ban on same-sex marriages Wednesday, Sept. 3, 2014.

SarahJane Grady, executive director of Forum For Equality Louisiana speaks during a rally in reaction to the decision by a federal judge which upheld Louisiana's ban on same-sex marriages Wednesday, Sept. 3, 2014.

(Gerald Herbert, AP)

SALT LAKE CITY — In upholding Louisiana's voter-approved marriage law, a federal judge embraced many of the same arguments Utah makes in defending Amendment 3.

But it is not clear how much U.S. District Judge Martin L.C. Feldman's ruling this week will affect Utah's appeal to the U.S. Supreme Court.

Feldman's opinion broke a string of 21 consecutive federal decisions that found same-sex marriage bans unconstitutional since the Supreme Court struck down part of the Defense of Marriage Act in U.S. v. Windsor last summer.

"The impact is minimal or nonexistent," said University of Utah law professor Cliff Rosky. He then added, "Having no one on your side and having one person on your side, I suppose they're different," Rosky said. "Of course, it depends on how many people are on the other side."

Bill Duncan, who heads the Provo-based Marriage Law Foundation, said the ruling opens the door for other federal judges to decide in favor of state laws defining marriage as the union of a man and a woman. It also signals to the Supreme Court a division among the states, giving the justices more reason to take up a same-sex marriage case.

"The key point is that the court accepted all of the kinds of arguments that Utah was making, and did it pretty emphatically," he said.

Duncan said there's still clearly an imbalance among the federal decisions and Feldman's ruling doesn't upend them.

"But it definitely gives pause and reason to think that this is still very much an open issue. The federal courts could decide it a variety of ways, and the Supreme Court could easily side with the Judge Feldman rather than the other judges that have ruled so far," he said.

In his decision, Feldman said the regulation of marriage is left to the states and the democratic process. Same-sex marriage is not a fundamental right and state bans do not violate equal protection and due process clauses in the Constitution, he said.

The judge also said Louisiana has a "legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents."

The plaintiffs in the Louisiana case intend to appeal to the 5th Circuit Court of Appeals in New Orleans.

Feldman said he "arduously studied the volley of nationally orchestrated court rulings" against democratically approved gay marriage bans.

"The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts appear to have assumed the mantle of a legislative body," he wrote.

Feldman cited Judge Paul J. Kelly's dissenting opinion in the 10th Circuit Court of Appeals decision that Utah cannot deny residents the benefit or protection of marriage based on gender.

Kelly wrote that judges should resist the temptation to become "philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment."

"If the states are laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited government on its head," he wrote.

Feldman sided with the Louisiana, which argued that the Supreme Court recognized in the DOMA case the rights of state voters and legislatures to define marriage.

Rosky said more than one higher court has disagreed with Feldman, and that the judge didn't appear to rigorously engage his colleagues' arguments. He relied on dissenting opinions, including the one in the Windsor case. He said Feldman failed to take into account the Supreme Court found that DOMA harmed and humiliated the children of same-sex couples.

"There's a lot of discussion of what Windsor said about federalism, but as far as I can tell there was no discussion worth reading about why DOMA was unconstitutional," Rosky said.

Duncan said Feldman's opinion offers a well-reasoned, articulate alternative for the Supreme Court to consider.

"I'm hopeful this will be persuasive," he said. "At the very least, I think it's important for the Supreme Court to have a case where it's not going to be controlled by kind of a groupthink, but that there's careful, thoughtful analysis on both sides."

Email: romboy@deseretnews.com

Twitter: dennisromboy

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1. Schnee
Salt Lake City, UT,
Sept. 4, 2014

I do wonder though how many things that, when sent to around 30 judges, end up more one-sided than 27-3 when it comes to being taken up due to disagreement between courts (3 because I gave the Amendment 3 side the two appeals court judges that were on the losing side of 2-1 decisions for same-sex marriage while giving 7 appeals court justices to the other side for 2-1 2-1 3-0)?

2. USU-Logan
Logan, UT,
Sept. 4, 2014

ONE ruling against SSM after 30+ ruling in favor of SSM. Big deal

3. the greater truth
Bountiful, UT,
Sept. 4, 2014

@USU-Logan

What is right and what is wrong is not up for a popularity vote.

Popularity doesn't make something right.

And in this case the one judge is right.

The one side has not proven their case, and the fact is there is no honestly equating choosing a homosexual lifestyle to race or gender.

4. MoNoMo
Fair Oaks, CA,
Sept. 4, 2014

The Supreme Court already decided that marriage discrimination against gay couples is unconstitutional in the US, right?

If Section 3 of DOMA was unconstitutional - where does that leave any "State?"

5. Mikhail
ALPINE, UT,
Sept. 4, 2014

Judicial systems are supposed to be compliant with a rule of law - or of legal precedent (stare decisis). They are not democratic organizations, governed by the rule of popular demand. The decisions of the other courts seem to indicate that the 14th Amendment is what is at play. However, this court seems to believe that a state chosen definition is justifiable and did not accept that a chosen definition of status is designed to be prejudiced against a particular class of people. The only vote relating to this issue that will really count is the one of the US Supreme Court. This decision should increase the incentive of the Supremes to take the Utah case.

I also find it interesting that the headline chosen for this court's ruling didn't use "gay marriage ban" or "same sex marriage ban" to describe anything about the ruling - while the headlines and descriptions regarding other court findings that are contrary to this one all use "ban" to describe the law.