After 20 consecutive judicial decisions overturning bans on same-sex marriage, the streak has ended with the ruling of one Southern U.S. District Court Judge, Martin Feldman, who ruled in favor of Louisiana’s voter-approved constitutional amendment banning same-sex marriage.
His decision represents only a small moment in the fight for marriage equality, and it exists as an outlier within a multitude of decisions going the other way. Most court rulings have declared that gay marriage bans violate the Equal Protection Clause of the Fourteenth Amendment.
But Feldman, in his decision, concluded that Louisiana had a legitimate purpose to deny marriage to same-sex couples in “linking children with intact families formed by their biological parents, and by ensuring that fundamental social change occurs by social consensus through democratic processes.” He argues that states, not the federal government, should regulate marriage.
Feldman’s decision seems to recall some of his Southern judicial brethren from yonder years. In 1965, Virginia’s appellate court affirmed the criminal conviction of interracial marriages, also by alleging that states should regulate marriage. As Chief Justice Earl Warren later explained in Loving v. Virginia:
“The state court concluded that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of White Supremacy. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.”
Mr. & Mrs. Loving – Public Domain
However, neither Feldman nor the Virginia court claimed that the power to regulate marriage is unlimited. Instead, both Feldman and Virginia argue that the Fourteenth Amendment’s Equal Protection Clause does not apply to bans on marriage because such bans apply equally to both black and white individuals, or, in this case, to males and females. Incredulously, according to Feldman, Louisiana’s same-sex marriage ban therefore doesn’t violate the Fourteenth Amendment because both gays AND lesbians are affected by it.
Feldman further argues that while a ban on interracial marriage would be unconstitutional, that’s only because the “Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.”
But the Fourteenth Amendment never mentions race:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
While the Supreme Court has applied greater scrutiny to laws targeting racial minorities, the court has also applied the Equal Protection Clause to other classes, including religious groups, women, and yes, to gays and lesbians.
In fact, in United States v. Windsor, Justice Kennedy’s majority opinionstates clearly that the Equal Protection Clause applies when governments discriminate against same-sex couples:
“The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States…
The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”
Is this not the purpose and practical effect of Louisiana’s ban on same-sex marriage – to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of” the state from which they originated, where same-sex marriage is legal? Does the ban not perpetrate all these things on same-sex couples within the state of Louisiana who wish to be married?
Earl Warren’s opinion in Loving v. Virginia ends with a conclusion that applies today by simply replacing “race” with “sexual orientation”:
“These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
These convictions must be reversed.”
Indeed they must. The time for excuses is over. There is no supportable reason to deny the fundamental freedom of marriage to same-sex couples.