“It’s here the family’s broken
And it’s here the lonely say
That the heart has got to open
In a fundamental way
Democracy is coming to the U.S.A.”
On September 3, 2014, Judge Martin Feldman became the first judge since the Supreme Court’s 2013 decision in United States v. Windsor to hold against the constitutional claims of same-sex couples seeking the right to marry. In Robicheaux v. Caldwell (opinion here), Judge Feldman upheld Louisiana’s statutory and state constitutional provisions barring same-sex couples from marrying and refusing recognition to the lawful marriages they enter in other jurisdictions. Breaking with a staggering string of decisions unanimously affirming that the Constitution guarantees same-sex couples marriage equality, the Robicheaux decision is rife with heterocentric prejudice, disparagement of the numerous judges who have ruled otherwise, democracy fetishization at the expense of the judiciary’s rights-protecting role, and logical gaps. Sadly for the people of Louisiana, whose rights are being denied daily, it may be some time before this ruling is corrected on appeal; with the Fifth Circuit stocked with right-leaning judges, waiting for a Supreme Court decision may prove necessary.
The opinion’s heterosexist perspective is most clearly on display when Judge Feldman characterizes the plaintiffs’ interests as “personal, genuine, and sincere lifestyle choices.” The notion that for lesbigay people marrying is merely a “lifestyle choice,” whereas marriage is some central, “fundamental” right and institution for heterosexually identified persons, is deeply offensive. This language resonates with the unfortunate trope, oft applied to lesbigay people, of what legal scholar Marc Fajer has called the “sex-as-lifestyle” presumption. As one lesbian comic quipped years ago, why is it that straight people get lives but gay people only get lifestyles?
The judge’s opinion also displays its bias in depicting a dystopian future that may follow if the Pelican State allows same-sex couples to marry. “Perhaps, in the wake of today’s blurry notion of evolving understanding, the result is ordained. Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage.” (emphasis added) Seemingly, then, he thinks same-sex couples devalue marriage.
Judge Feldman’s opinion sets himself up as the voice of reason in the face of “this passionately charged national issue,” as his opening paragraph characterizes it. This is in contrast to the many, many state and federal judges who have held discriminatory marriage laws unconstitutional, apparently not in good faith. He impugns either their intellect or their integrity: “That federal courts thus far have joined in the hopeful chorus that the tide is turning seems ardent and is arguably popular, indeed, poignant, outcome (whether or not credibly constitutionally driven).” [sic, sic, sic] Perhaps the judge thinks that these courts are in cahoots with advocacy organizations like Lambda Legal, the ACLU, and the National Center for Lesbian Rights, for he informs us (emphasis added) that he “has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue of same-sex marriage.”
That is just one example of Judge Kelly’s fetishization of democracy at the expense of the intended independent role of the federal judiciary. (His solicitude for democracy is inconsistent, for he excoriates the Defense of Marriage Act for its effect on New York’s “democratically debated and then adopted” law allowing same-sex couples to marry but does not note that DOMA itself was “democratically debated and then adopted.”) At the outset his opinion sets up the “lifestyle choices” of lesbigay persons – or so I assume, since “lesbian,” “gay,” and “bisexual” appear nowhere in the opinion, and even “homosexual” appears only once in a direct quotation, perhaps reflecting discomfort in even acknowledging lesbigay people as a group of people –as clashing with “convictions regarding the value of the democratic process.” He refuses to apply any heightened scrutiny to sexual orientation discrimination because the Supreme Court has never held that to be required – true enough, but neither has the Court held such scrutiny forbidden – and because, he says, doing so would “demean the democratic process.” He repeatedly quotes the late Justice Lewis Powell’s dissent in a death penalty case, touting Powell’s “emphatic trust in deference for free and open debate in a democracy” [sic].
“Same-sex marriage is not recognized in Louisiana,” Judge Feldman writes, “and is reasonably linked to the democratic process.” The state’s discriminatory marriage laws, its “regime,” he says, “pays respect to the democratic process; to vigorous debate.” He credits Louisiana’s assertion that it has “a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through the democratic process” [sic]. But as a matter of constitutional doctrine, that cannot be right. Most government discrimination challenged under the Equal Protection Clause is subject only to a deferential form of judicial scrutiny, “rational basis review,” which requires only that the government action have a loose connection (be “rationally related”) to a “legitimate governmental interest.” If a preference for proceeding via the democratic process counted as a legitimate governmental interest (which he seems to say, since “fundamental social change” is offered as an example, not a limit to his reasoning), then no statute or initiative or referendum would fail rational basis review, for a state could always claim that its democratically adopted law forbidding X or requiring Y is a rational way of preferring that policy on X or Y be set democratically.
The judge protests that it is not his place “to resolve the wisdom of same-sex marriage.” But no one was asking him to. He was asked only to rule on the plaintiffs’ claimed constitutional rights. It is therefore somewhat baffling that one of Justice Powell’s dissenting pronouncements Feldman thinks pertinent is the Justice’s claim that “[i]n a democracy the first indicator of the public’s attitude must always be found in the legislative judgments of the people’s chosen representatives.” Public attitudes are not generally relevant to constitutional rights. As U.S. Court of Appeals judge Richard Posner explained the next day in an opinion holding Indiana’s and Wisconsin’s marriage bans unconstitutional, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
Judge Feldman either does not agree, or is inept insofar as equal protection law goes, or let his own “passions” lead him doctrinally astray. For his opinion failed to apply the doctrine he announces. Even if sexual orientation discrimination did not deserve heightened judicial scrutiny, as Feldman rules, it would still be subject to rational basis review, as Feldman also says. But as I already noted, this means that the refusal to let same-sex couples marry or recognize same-sex couples’ marriages from other jurisdictions must bear a rational relationship to a legitimate governmental interest. Even if one granted, as Feldman holds (and falsely attributes to Justice Kennedy’s opinion for the Supreme Court in Windsor) that Louisiana has a “legitimate interest in linking children with intact families formed by their biological parents,” the exclusion of same-sex couples must still somehow rationally relate to that interest. Yet Feldman’s opinion nowhere ever even tries to provide any link between excluding same-sex couples from civil marriage and (somehow) linking children to intact bio families.
I’m not saying Judge Feldman is a Neanderthal, but his opinion upholding Louisiana’s marriage discrimination has a missing link, one that in combination with its other deficiencies should earn it a failing grade, or at best an Incomplete.