Like a turd in a punch bowl, federal District Judge Martin Feldman in New Orleans has become the first judge in any federal court to rule that same-sex couples cannot be married.
Feldman on Wednesday ruled that Louisiana "has a legitimate interest" in banning same-sex marriages because those weddings could create "a slippery slope" that would lead to incestuous or polygamous marriages.
His ruling is one of the most regressive in years in federal jurisprudence regarding homosexuality, which Feldman referred to as a "lifestyle choice."
The 80-year-old jurist, an acolyte of President Nixon who was appointed to the court by President Reagan, said same-sex couples have no fundamental right to marry. He was not impressed by the "pageant of empathy" and "pathos" surrounding the changing legal environment regarding marriage equality.
His ruling applies only to Louisiana. Because his opinion is so contrary to the growing body of legal opinion favoring same-sex marriage, the case is bound to attract the attention of both the 5th Circuit Court of Appeals and the United States Supreme Court.
The appeals court currently is hearing a case from Texas, where a federal judge invalidated that state's ban on same-sex marriage. If the appeals court were to uphold that judge's ruling, the Louisiana case stands a good chance of being overturned.
Meanwhile, the Supreme Court may decide later this year whether to examine the constitutional issues surrounding marriage equality. Any ruling it hands down would apply nationwide.
The Louisiana case arose when voters in the 2004 election amended the state's constitution to restrict marriage to one man and one woman. Recently seven same-sex couples went to court to challenge that amendment. Six of them were wed in states where same-sex marriage is legal; they sought to have those marriages recognized now that they are back home in Louisiana. A seventh couple wants to be married within Louisiana.
Federal cases arising from marriage equality must take into account the Supreme Court's year-old ruling in United States v. Windsor, which invalidated the key portion of the federal Defense of Marriage Act. In Windsor, the court held that the federal statute violated the equal protection and due process principles of the 14th Amendment. (It took no position on state statutes.)
Feldman took a narrow, crabbed reading of Windsor to show that Louisiana must be given the widest latitude possible in enacting laws that deal with sexual orientation. He used the lowest form of review, the "rational basis" test, which looks only at whether a state acted within the scope of its traditional authority.
He rejected a "heightened scrutiny" test for same-sex marriage by finding nothing in Windsor or in rulings within the 5th Circuit that specifically recognizes sexual orientation as a class deserving constitutional protection against discrimination.
As far as Feldman was concerned, state sovereignty trumps the use of a court ruling to realign thousands of years of traditional marriage.
"The concept of same-sex marriage is 'a new perspective, a new insight,' nonexistent and even inconceivable until very recently," he wrote.
Because the United States has no tradition of letting same-sex couples marry, Louisiana is under no obligation to treat as valid any marriage performed elsewhere. He decried the "volley of nationally orchestrated court rulings" arising from other states.
Even if same-sex marriage were allowed, "inconvenient questions persist," he wrote. "For example, must the states permit or recognize a marriage between an aunt and niece? 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?"
Amazingly, Feldman is treated seriously in legal arenas. He plays an important role in another field of federal jurisprudence: He sits on the FISA court, the Federal Intelligence Surveillance Court, which decides whether to issue warrants against suspected terrorists and foreign agents operating in the United States.
He also has had a run-in with judicial ethics. In 2010, Feldman prevented the Obama administration from imposing a six-month moratorium on new deep-water drilling projects in response to the BP oil disaster in the Gulf of Mexico. During preliminary motions leading up to his ruling, Feldman owned stock in Exxon-Mobil, one of the plaintiffs in the case. He sold his stock just hours before allowing the drilling to proceed, the Wall Street Journal reported at the time.
Under federal law, federal judges are prohibited from deciding cases in which they have a financial interest in the outcome. They are supposed to recuse themselves and turn the case over to a different judge. Feldman did not do that.
Feldman on Wednesday ruled that Louisiana "has a legitimate interest" in banning same-sex marriages because those weddings could create "a slippery slope" that would lead to incestuous or polygamous marriages.
His ruling is one of the most regressive in years in federal jurisprudence regarding homosexuality, which Feldman referred to as a "lifestyle choice."
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| Judge Martin Feldman |
His ruling applies only to Louisiana. Because his opinion is so contrary to the growing body of legal opinion favoring same-sex marriage, the case is bound to attract the attention of both the 5th Circuit Court of Appeals and the United States Supreme Court.
The appeals court currently is hearing a case from Texas, where a federal judge invalidated that state's ban on same-sex marriage. If the appeals court were to uphold that judge's ruling, the Louisiana case stands a good chance of being overturned.
Meanwhile, the Supreme Court may decide later this year whether to examine the constitutional issues surrounding marriage equality. Any ruling it hands down would apply nationwide.
The Louisiana case arose when voters in the 2004 election amended the state's constitution to restrict marriage to one man and one woman. Recently seven same-sex couples went to court to challenge that amendment. Six of them were wed in states where same-sex marriage is legal; they sought to have those marriages recognized now that they are back home in Louisiana. A seventh couple wants to be married within Louisiana.
Federal cases arising from marriage equality must take into account the Supreme Court's year-old ruling in United States v. Windsor, which invalidated the key portion of the federal Defense of Marriage Act. In Windsor, the court held that the federal statute violated the equal protection and due process principles of the 14th Amendment. (It took no position on state statutes.)
Feldman took a narrow, crabbed reading of Windsor to show that Louisiana must be given the widest latitude possible in enacting laws that deal with sexual orientation. He used the lowest form of review, the "rational basis" test, which looks only at whether a state acted within the scope of its traditional authority.
He rejected a "heightened scrutiny" test for same-sex marriage by finding nothing in Windsor or in rulings within the 5th Circuit that specifically recognizes sexual orientation as a class deserving constitutional protection against discrimination.
As far as Feldman was concerned, state sovereignty trumps the use of a court ruling to realign thousands of years of traditional marriage.
"The concept of same-sex marriage is 'a new perspective, a new insight,' nonexistent and even inconceivable until very recently," he wrote.
Because the United States has no tradition of letting same-sex couples marry, Louisiana is under no obligation to treat as valid any marriage performed elsewhere. He decried the "volley of nationally orchestrated court rulings" arising from other states.
Even if same-sex marriage were allowed, "inconvenient questions persist," he wrote. "For example, must the states permit or recognize a marriage between an aunt and niece? 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?"
Amazingly, Feldman is treated seriously in legal arenas. He plays an important role in another field of federal jurisprudence: He sits on the FISA court, the Federal Intelligence Surveillance Court, which decides whether to issue warrants against suspected terrorists and foreign agents operating in the United States.
He also has had a run-in with judicial ethics. In 2010, Feldman prevented the Obama administration from imposing a six-month moratorium on new deep-water drilling projects in response to the BP oil disaster in the Gulf of Mexico. During preliminary motions leading up to his ruling, Feldman owned stock in Exxon-Mobil, one of the plaintiffs in the case. He sold his stock just hours before allowing the drilling to proceed, the Wall Street Journal reported at the time.
Under federal law, federal judges are prohibited from deciding cases in which they have a financial interest in the outcome. They are supposed to recuse themselves and turn the case over to a different judge. Feldman did not do that.