A federal judge who talks sense about marriage

Last week, a federal judge in Louisiana went against the judicial grain by ruling in favor of a state’s right to limit marriage to heterosexual couples. Judge Martin Feldman’s decision laid out a justification other courts could use to preserve the traditional definition of marriage.

Since the U.S. Supreme Court’s landmark ruling in United States v. Windsor last year, the federal court in New Orleans is the first to say that it is rational for voters to favor traditional marriage over same-sex marriage. Windsor killed one part of the federal Defense of Marriage Act and said the federal government has no right to set a marriage definition.

But Windsor did not establish a fundamental right for those in same-sex relationships to demand the right to wed from the states. You’d think that’s what the Supreme Court did, based on how federal judges have ruled. Three appellate circuits have already struck down traditional marriage laws, saying Windsor set the precedent for them. But Feldman made a strong argument for why that is not the case.

Ten years ago, 78 percent of Louisiana voters overwhelmingly approved a constitutional amendment limiting the definition of marriage to a union between one man and one woman. Seven gay couples in Louisiana sued to compel the state to grant them marriage licenses or to recognize licenses some of them had received from other states. They based their claims on due process, equal protection, public policy, and freedom of speech.

Feldman, an appointee of President Ronald Reagan, held that the state of Louisiana has constitutional authority to define marriage. He said Louisiana voters only needed a rational reason to define marriage exclusively as the union of a man and a woman because gays have never been recognized as a class that needs special protection from discrimination. The term “rational basis” is the lowest level of legal scrutiny and the easiest test to pass. Feldman wrote in his opinion that proponents of same sex marriage who argue for higher levels of scrutiny engage in “intellectual anarchy.” They take a phrase like “careful consideration” in the Windsor case and try to bend that into a higher legal standard of proof.

The Constitution forbids treating people differently based on race, but not sexual orientation. And neither the Supreme Court nor the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Feldman’s court, has ever defined homosexuality as a protected class. Feldman said it wasn’t his job to create a new class because that would demean the democratic process.

Feldman noted the Windsor ruling repeatedly said domestic relations are the scope of states, not the federal government. He agreed citizens are free to redefine marriage through the democratic process. He added that the decisions so far in favor of same-sex marriage were animated empathy and pathos, words that led him to say courts should not base rulings on emotions. They do not have the power to behave as though they are legislatures, he concluded.