More than 30 federal courts have ruled against state bans on gay marriage since Windsor. Until today, federal courts unanimously agreed that such bans were unconstitutional, regardless of the level of scrutiny applied -- rational basis, intermediate, or strict scrutiny.
U.S. District Court Judge Martin Leach-Cross Feldman (a Reagan appointee) made note of the unanimity before straying from the course of his colleagues, noting, "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."
Applying the rational basis test, Judge Feldman held that Louisiana had two interests at stake: linking children to intact families formed by biological parents and "safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus."
Level of Scrutiny
Judge Feldman notes, correctly, that Windsor was a vague opinion, writing that it "does little more than give both sides in this case something to hope for." And while most other courts have held that Justice Kennedy's majority opinion impliedly called for something more than rational basis, Feldman wrote that "Windsor starkly avoids mention of heightened scrutiny."
In a textual sense, he's absolutely correct -- Windsor made no mention of intermediate, strict, or heightened scrutiny. And while other courts have implied more from the text, Feldman called this leap "intellectual anarchy."
"If the Supreme Court meant to apply heightened scrutiny, it would have said so," he wrote.
He also emphasized that neither the Supreme Court nor the Fifth Circuit have ever defined sexual orientation as a protected class.
Perhaps the strongest argument in favor of same-sex marriage bans is the federalism argument -- Windsor invalidated part of the Federal Defense of Marriage Act by deferring to the states' long-standing power to define marriage. Unsurprisingly, this is one of the reasons for Judge Feldman's ruling in favor of Louisiana's ban:
Windsor repeatedly and emphatically reaffirmed the longstanding principle that the authority to regulate the subject of domestic relations belongs to the states, subject to indistinct future constitutional guarantees that in Windsor were, by its expressed limits, left open and rather inexact. [citation] Although opinions about same-sex marriage will understandably vary among the states, and other states in free and open debate will and have chosen differently, that does not mandate that Louisiana has overstepped its sovereign authority.
This Court is persuaded that 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, as specifically underscored by Justice Kennedy in Windsor.
Wait, what? Curiously, he didn't pin-cite where in Windsor Justice Kennedy recognized that hetero-biological parents are better than some other alternative, unlike his copious citations to arguments for federalism. (If you have any idea what he's talking about, tweet us with your insight.)
Parade of Horribles
Of course, no argument against gay marriage would be complete without the slippery slope and parade of horribles arguments. We saw some of this in the oral arguments in the Seventh Circuit, but Judge Feldman went even further here:
When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. 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? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.
Transgender individuals, polygamists, and incest, oh my! Judge Feldman found the arguments that some of these other forms of marriage cause specific societal harms that independently justify their own bans to be unconvincing.
- Robicheaux v. Caldwell (Opinion - Scribd)
- The 6th Circuit's Marriage Equality Cases Are Virtually Meaningless (FindLaw's U.S. Sixth Circuit Blog)
- A Judge Rules Against Gay Marriage; 6th Cir. to Do The Same? (FindLaw's U.S. Sixth Circuit Blog)
- Texas' AG Was Law School Pals With Gay Marriage Plaintiff (FindLaw's U.S. Fifth Circuit Blog)