US judge upholds Louisiana gay marriage ban, criticizing string of rulings

Saying 'Federalism is not extinct,' the US judge rejected the argument that the US Constitution protects a fundamental right to same-sex marriage.

A federal judge in New Orleans upheld Louisiana’s ban on same-sex marriages Wednesday, breaking a string of more than 20 US judges who have declared such bans unconstitutional in recent months.

US District Judge Martin Feldman was unapologetic in upholding a Louisiana constitutional amendment that defines marriage as a union between one man and one woman. He also ruled that Louisiana was not required to recognize same-sex marriages performed in other states.

“It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts to have spoken to this pressing issue, if this court were confident in the belief that those cases provide a correct guide,” he wrote in a 32-page opinion.

Judge Feldman criticized what he said was a “volley of nationally orchestrated court rulings” by judges who “appear to have assumed the mantle of a legislative body.”

Instead of reaching out to decide policy issues, the courts should allow the thorny debate over same-sex marriage to play out among voters and state lawmakers, the judge said.

“It is not for this court to resolve the wisdom of same-sex marriage,” he wrote.

Feldman, an appointee of President Ronald Reagan, said that under the Constitution’s system of federalism, the states retain the authority to decide for themselves as part of their own political processes how best to regulate and define marriage.

“Federalism is not extinct,” he said. “Federalism remains a vibrant and essential component of our nation’s constitutional structure.”

The judge rejected the argument that the US Constitution protects a fundamental right to marry without regard to sexual orientation.

“Many states have democratically chosen to recognize same-sex marriage. But until recent years, it had no place at all in this nation’s history and tradition,” he wrote. “Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental.”

He added: “There is simply no fundamental right, historically or traditionally, to same-sex marriage.”

Judge Feldman said that other judges were misreading the US Supreme Court’s decision last year in US v. Windsor, a ruling that struck down a portion of the federal Defense of Marriage Act.

Many judges – including two federal appeals court panels – have cited the Windsor decision as support for protecting same-sex marriage as a fundamental right.

Judge Feldman disagreed. “Windsor does little more than give both sides in this case something to hope for,” he said.

Neither the Supreme Court nor the New Orleans-based Fifth US Circuit Court of Appeals has yet issued a definitive ruling on state bans of same-sex marriage, he said.

The judge also accepted the state’s rationale for limiting marriage to the traditional man-woman definition. He said the restriction served the state’s interest in “linking children to an intact family formed by their biological parents.”

“Of even more consequence, in this court’s judgment, [state officials] assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus,” the judge said. “This court agrees.”

Judge Feldman concluded: “The court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid.”

Louisiana is among 31 states that currently restrict marriage to a union of one man and one woman. Nineteen states and the District of Columbia recognize same-sex marriages.

In the year since the Supreme Court issued the Windsor decision, more than 80 lawsuits have been filed challenging every same-sex marriage ban.

Suits have been filed in both state courts and the federal courts.

In the past year, federal judges have struck down same-sex marriage bans in Utah, Oklahoma, Virginia, Texas, West Virginia, Tennessee, Illinois, Ohio, Michigan, Idaho, Oregon, Pennsylvania, Wisconsin, Indiana, Kentucky, Colorado, and Florida. In addition, panels of the Fourth Circuit in Richmond and of the Tenth Circuit in Denver both voted 2 to1 to affirm rulings striking down bans in Utah, Oklahoma, and Virginia.

Petitions are currently pending at the US Supreme Court, which is expected to take up and decide one or more same-sex marriage cases perhaps as early as next year.

In a statement issued after the ruling, the conservative group Alliance Defending Freedom praised Judge Feldman’s decision upholding the Louisiana ban.

“The people of Louisiana – and the people of every state – should continue to have the authority to affirm marriage as the union of a man and a woman in their laws,” Byron Babione, ADF senior counsel, said in the statement.

“The district court in this case was right to conclude, as the US Supreme Court did in its Windsor decision last year, that marriage law is the business of the states,” he said.

The case is Robicheaux v. Caldwell (13cv5090).

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