People who think gay Americans do not deserve the same rights as straight Americans finally have something to celebrate.
After a disastrous losing streak in the federal courts — every single federal court to consider the question after the Supreme Court struck down the anti-gay Defense of Marriage Act (DOMA) in 2013 has sided against marriage discrimination — Team Anti-Gay finally found a single court in Louisiana that was willing to stand up for the the principle that same-sex couples should not be allowed to marry. Judge Martin Feldman, a Reagan appointee to the federal trial bench, has now written the only federal court decision in the country holding that gay couples are not entitled to the same rights as straight couples.
Political operatives seeking to cast aspersions on Feldman’s approach to gay rights will find a lot to work with in his opinion. At one point, he describes being gay as one of several “lifestyle choices” a person can make. At another point in his opinion, he compares same-sex marriage to marriage between “aunt and niece,” “aunt and nephew,” or “father and child.” He also likens marriage equality to polygamous marriages.
Judge Feldman’s opinion also misuses common legal phrases in ways that suggest he may be unfamiliar with, or, at least, unaccustomed to working with, rudimentary concepts of American constitutional law. At one point, for example, he writes that the courts recognize three levels of review that can apply in constitutional cases, “rational basis, intermediate scrutiny, and heightened scrutiny.” He adds that “[r]ational basis is the least austere; heightened scrutiny the most arduous.” Yet, as many law students learn during their first year of legal education, the legal term for the most arduous standard of constitutional review is “strict scrutiny,” although the term “heightened scrutiny” is sometimes used as a catch-all term that encompasses all levels of enhanced constitutional review.
It’s also worth noting that, on four separate occasions, Feldman relies upon Chief Justice John Roberts’ dissenting opinion in United States v. Windsor, the case striking down DOMA. Roberts’ dissenting opinion is, by definition, not the opinion of the majority of the Court. So it is an odd place for a lower court judge to turn to as an authority.
Setting aside these nitpicks, however, Feldman commits a much larger error that cuts at the core of his argument. A common argument offered by marriage equality supporters is that bans on same-sex marriage unconstitutionally discriminate on the basis of gender because they permit men to marry women, but do not permit women to marry women and vice-versa. This argument parallels the Supreme Court’s reasoning in Loving v. Virginia, which rejected a claim that a ban on interracial marriage is acceptable because it applies equally to all races. Judge Feldman, however, devotes only a single page of analysis to this claim, and what analysis he does offer hinges upon one central claim — “Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.”
Feldman’s claim, however, is false. The Fourteenth Amendment does not speak of race. Instead, it provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Moreover, the members of Congress who proposed this amendment knew how to draft a law which only bans racial discrimination — the Civil Rights Act of 1866, for example, provides that all people in the United States shall have many of the same rights that are “enjoyed by white citizens.” So, when the drafters of the Fourteenth Amendment choose to write that amendment’s text more broadly, that appears to have been an intentionally choice to provide more protection than just protection against race discrimination.
More recently, the Supreme Court explained that discrimination that is similar in character to racism should be treated with skepticism by federal courts. Thus, groups that have historically been subject to discrimination that has little basis in their ability to “perform or contribute to society” enjoy heightened protection under the Constitution. It is difficult to argue that LGBT Americans have not been subject to this kind of discrimination, and Feldman hardly attempts to argue otherwise.
So there is little wisdom to be found in Feldman’s opinion, but there is a lesson that can be gleaned from it. At one point, Feldman notes that “neither the Supreme Court nor the Fifth Circuit has ever before defined sexual orientation as a protected class” entitled to heightened scrutiny under the Fourteenth Amendment. This is a true statement, although it is a true statement born less from the justices’ allegiance to legal doctrine than from their refusal to acknowledge it.
If the Supreme Court admits that LGBT Americans have historically been subject to the type of discrimination that triggers heightened constitutional scrutiny, then it naturally follows that marriage equality must be the law of the land. In the past, however, even several of the Court’s more liberal members have been quite explicit about their desire to move slowly on gay rights. This slow footing produced incoherent doctrine, and it gave Feldman the narrow window he attempted to crawl through in his efforts to justify discrimination.
It is unlikely, however, that the justices will be able to put off the question of whether marriage equality is required by the Constitution much longer.