U.S. District Judge Martin Feldman ruled yesterday in the case of Robicheaux v. Caldwell, No. 2:13-cv-05090-MLCF-ALC (E.D. La.) that Louisiana's ban on same-sex marriage and non-recognition of the marital status of same-sex couples married in other states, are not unconstitutional. (Read the decision here.)
I'm not going to go into all of the reasons why Judge Feldman got this wrong. To me the decision boiled down to this: The states are within their powers to determine and decide What Marriage Is™, and since same-sex marriage is not What Marriage Is™ there's no harm, no discrimination, and no deprivation of any fundamental rights of same-sex couples or individuals by virtue of the state having "rationally" determined that Marriage Is™ something that does not include them.
This isn't the first time I've heard or read that the definition of a word is more important than the rights of flesh-and-blood people. Sometimes I even get the sense that marriage exclusivists think that the word itself actually has rights, viz., gay people don't have the right to marry, because the word "marriage" has a right to carry a certain "definition," which people have no "right" to "change."
But what struck me the most about this decision was how the court characterized the purported "legitimate state interest" by which Louisiana's marriage ban survived rational-basis scrutiny -- which the court utterly failed to properly apply. As many of us will recall, other courts have struck down same-sex marriage bans under rational-basis scrutiny, finding that even if the asserted state interests were legitimate and genuine, a ban on same-sex marriage was not rationally related to the pursuit or furtherance of those interests.
Rational-basis scrutiny requires two things: (1) a legitimate state interest, and (2) that the measure taken by the state be rationally related to that interest. A state has, for example, a legitimate interest in highway safety. It could pursue and further that interest by, e.g, outlawing texting while driving. The measure taken (banning texting) is rationally related to the asserted interest (highway safety). However, a state would not, and likely could not, pursue its interest in highway safety by banning same-sex marriage, nor could it ban texting while driving in furtherance of its interest in regulating domestic relations. One simply has nothing to do with the other.
Judge Feldman characterizes the asserted state interests in Robicheaux as: (1) "linking children with intact families formed by their biological parents," and (2) "ensuring that fundamental social change occurs by social consensus through democratic processes." (Op. at 8; see Op. at 15, 16 ("Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents."); 23 ("This Court is persuaded that Louisiana has a legitimate interest ... in linking children to an intact family formed by their two biological parents[.]")).
What the court never does, or even attempts, is to explain how banning same-sex marriage and refusing to recognize marriages from other states accomplishes or furthers the presumptively legitimate goal of "linking children with intact families formed by their biological parents," or how allowing and recognizing same-sex marriages would undermine or interfere with that goal. (Indeed, it's not even clear what that phrase even means, viz., the word "linking.") Rational-basis review requires more than a finding that the state has asserted a legitimate interest; there also has to be some rational relationship between the asserted interest and the measure taken to further it.
Here, regardless of what "linking children with their biological parents" means, the court does not even mention, let alone begin to conduct the second part of the review. The court is satisfied that a legitimate, "rational" interest exists, but does not even ask the question as to whether the measures taken by the state are in any way related to that interest. I'm not so much saying here that the measure is not rationally related to the "interest" (hard to say, when the "interest" is so poorly articulated); I'm saying the court failed to even ask the question, let alone conduct any analysis or make any finding that banning same-sex marriage has even the potential or incidental effect of "linking children with their biological parents" or that allowing it would even potentially or incidentally interfere with such "linking."
Some commentators have already noted that the court rests its decision in part on an abject falsehood, viz., that "the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race." (Op. at 14.) This, of course, is untrue; the Fourteenth Amendment does not specify what may or may not be the basis for a state's denial to any citizen of "equal protection of the laws." U.S. Const. amend. XIV. This is partly how the court justifies applying rational-basis scrutiny instead of heightened or strict scrutiny (which the court also misnames), but is less significant than the court's obvious and abject failure to fully apply rational-basis scrutiny.
The legal error here is so egregious that it almost seems pointless to address the second asserted state interest, viz., "ensuring that fundamental social change occurs by social consensus through democratic processes." This one is almost not even worth discussing, except to the extent it implies that people's rights ought to be subject to "social consensus." We had better hope that this doesn't become precedent for future cases in which "social consensus" and "democratic processes" have resulted in ... well, use your imagination.
It was only a matter of time before a "conservative" federal judge in a "conservative" state signed on with the exclusivists. I would have hoped the ruling would be more sound than this. The court merely leaves it to the imagination whether and how a ban on same-sex marriage has the effect of "linking children with intact families formed by their biological parents." No one else has been able to explain it either.