On Wednesday, a federal judge in Louisiana ended same-sex marriage’s federal-court win streak. District Judge Martin Feldman held that Louisiana need not grant marriage licenses to same-sex couples or recognize their out-of-state marriages. The decision is a real potential setback for the cause of marriage equality. Unlike the recent similar opinion in a Tennessee state court, this is not an overmatched judge throwing up his hands in terror. Feldman’s opinion represents a fundamental challenge, couched in terms of recent Supreme Court precedent, to the claim that United States v. Windsor requires states to allow same-sex marriage. And, I think not coincidentally, its heart is drawn from an opinion written earlier this year by Justice Anthony Kennedy—whose vote will very likely determine the result when the marriage issue reaches the Court.
In his dissent in Windsor, Chief Justice John Roberts extended an invitation to lower courts to read that case as an ode to state power rather than to marriage equality. In Robicheaux v. Caldwell, Feldman for the first time makes Roberts’s words the basis of a decision a claim for marriage equality. Conspicuous by its absence is any reference to Justice Antonin Scalia’s more prominent dissent, which angrily prophesied victory for same-sex marriage when it comes before the Court again.
Feldman’s opinion is aggrieved in tone, implying he is just one of those old-fashioned people who think heterosexual marriage and the will of the people deserve deference even if this new generation doesn’t think so. “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,” Feldman writes. He dismisses the multiple decisions by other federal courts as “a pageant of empathy; decisions impelled by a response of innate pathos. Courts that ... appear to have assumed the mantle of a legislative body.” Same-sex marriage, he suggests, is an undiscovered country, and should only be entered by a political decision after “[f]ree and open and probing debate. Indeed, fractious debate.”
In discussing the political dialogue over marriage, Feldman makes his most direct appeal to the High Court of Kennedy. He notes that Kennedy, in a decision earlier this year, wrote an opinion upholding a Michigan voter initiative in which a majority of voters cast ballots to outlaw race-based affirmative action. Feldman applies the rationale of that opinion, called BAMN v. Schuette, to voter initiatives that bar same-sex marriage:
This case shares striking similarities with Schuette. Just as in Schuette, this case involves "[d]eliberative debate on sensitive issues [that] all too often may shade into rancor." And so just like the Supreme Court very recently held, this Court agrees "that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate."
The words are calculated to trouble Kennedy. His opinion in Schuette was strikingly broad. Indeed, elsewhere in the opinion, Kennedy wrote that Michigan voters have “a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” In constitutional terms, a “fundamental right” is as strong as it gets. Feldman implies that the same “right” of the majority extends to questions of marriage as well.
Kennedy is a man with a large but complex heart. On the one hand, it tugs him toward his beloved “dignity” for gay couples and their children; on the other, it draws him toward the privileges of the states and the newly discovered “fundamental right” of majorities. The outcome of that contest is still in doubt, and Feldman’s opinion shows why.