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September 3, 2014 9:53 AM   Subscribe

"Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental." U.S. District Court Judge Martin Feldman posts a ruling that Louisiana’s ban on same-sex couples’ marriages is constitutional.

Feldman becomes the first judge in over a year to uphold a same-sex marriage ban. [full ruling]
posted by komara (113 comments total) 9 users marked this as a favorite

 
In the recent discussion on Indiana's ruling I found myself saying "I'm nervous about this - I'm worried that somehow Louisiana will become the one to break a ... what is it now, a streak of 22 straight pro-marriage-equality rulings? It wouldn't be the first time that this state looked backward instead of forward."

I can not sufficiently express my disappointment today.
posted by komara at 9:57 AM on September 3 [36 favorites]


And the world continues its streak of general shittiness.
posted by Librarypt at 9:59 AM on September 3 [3 favorites]


The Court also hesitates with the notion that this state's choice could only be inspired by hate and intolerance.
Well, maybe not and, but I'm hard-pressed to think of any reason that isn't one of those.
posted by Etrigan at 10:00 AM on September 3 [15 favorites]


needs the wrongsideofhistory tag.
posted by chavenet at 10:04 AM on September 3 [31 favorites]


"Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental."

Um, correct me if I'm wrong and I'm not a judge or anything but isn't this not really how fundamental rights work? I mean, if they have to be entrenched they're not really "fundamental", are they? I thought fundamental sort of meant you were supposed to get them no matter what.

Also, the right here is I think more "not being discriminated against as a minority just because a lot of people are assholes" which I think IS a fundamental right, or is at least touted as one in the United States, although sadly it is not an "entrenched" one.
posted by Mrs. Pterodactyl at 10:08 AM on September 3 [34 favorites]


librarypt--Well there certainly is shittiness in the world but this continues a long streak of crap in La. And so help me--if one other La., Ms. Al., TX. etc legislator/Governor/Senator preaches to me about what the US Government should do and what is wrong with the rest of us.......
posted by rmhsinc at 10:09 AM on September 3 [1 favorite]


Judge Martin Feldman isn't worthy of the name.
posted by Faint of Butt at 10:11 AM on September 3 [10 favorites]


Ah, I knew the slippery slope would be in the ruling somewhere:

"For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Plaintiffs' counsel was unable to answer such kinds of questions; the only hesitant response given was that such unions would result in "significant societal harms" that the states could indeed regulate. But not same-gender unions. This Court is powerless to be indifferent to the unknown and possibly imprudent consequences of such a decision."

posted by komara at 10:11 AM on September 3 [4 favorites]


Ugh. Louisiana remains terrible. I thought maybe we'd not fuck it up.

rmhsinc: For a while, every time I watched a YouTube video, I got an ad with Jindal saying incredulously, "The federal government wants to tell Louisiana parents how to educate their children!?!" We are, what, 48th in education? Perhaps we aren't the experts here?
posted by artychoke at 10:13 AM on September 3 [31 favorites]


From Wikipedia's entry on LGBT rights in Louisiana:
"In 2013, law enforcement officers in East Baton Rouge Parish arrested men who agreed to engage in sexual activity banned by the [sodomy] statute. The District Attorney did not prosecute those arrested, and both he and the parish sheriff supported repealing the sodomy statute. In April 2014, a bill to repeal the statute failed in the Louisiana House of Representatives on a 66–27 vote after lobbying in opposition by the Louisiana Family Forum."
Note that such sodomy statutes had already been found unconstitutional a decade before, per Lawrence v. Texas.
posted by Sticherbeast at 10:19 AM on September 3 [12 favorites]


Great, traveling to Louisiana tomorrow for a couple of days (to visit someone who has no choice but to be there). Any ideas about creative ways to protest or otherwise register my dissent and dismay?



That don't involve excrement. Had to add that. No problems, I can completely understand. It was my first thought as well.
posted by The Vice Admiral of the Narrow Seas at 10:20 AM on September 3


Ah, I knew the slippery slope would be in the ruling somewhere

At least he didn't bring up box turtles.

Is there a basis for appeal here? Can this still go up a level to a higher court? I'm not all that familiar with the US system.
posted by Hoopo at 10:21 AM on September 3


What about a transgender spouse? Is such a union same-gender or male-female?

So in Louisiana, transgender people can't marry anyone because it might be gay if you look at it a certain way? How does Feldman not see how self-defeating that argument is?
posted by WCWedin at 10:23 AM on September 3 [12 favorites]


The fact that he honestly doesn't know how trans people get married in his state, and uses this in his ruling, is super telling. Trans people getting married is not some slippery slope bogeyman like "father and child" getting married - for chrissakes, dude, trans people are already getting married here right under your stupid nose. I could legally gay marry a cis woman today, right here in River City!
posted by Corinth at 10:23 AM on September 3 [36 favorites]


Is there a basis for appeal here?

Sure thing:
The Forum, which was joined in the lawsuit by several gay and lesbian couples, announced immediately that it would challenge Feldman’s decision at the 5th U.S. Circuit Court of Appeals.

And while the 5th Circuit has a reputation as one of the most conservative federal appeals courts, the issue of gay marriage could be taken up soon by the U.S. Supreme Court.
posted by Sticherbeast at 10:23 AM on September 3 [2 favorites]


What about a transgender spouse? Is such a union same-gender or male-female?

Ugh, seriously? Did this guy just imply "trans people shouldn't be allowed to marry anyone, ever, because it might be gay and that confuses me"? Equal protection much?
posted by NMcCoy at 10:24 AM on September 3 [11 favorites]


Maybe he'll let them become three-fifths married?
posted by benito.strauss at 10:29 AM on September 3 [22 favorites]


"Any ideas about creative ways to protest or otherwise register my dissent and dismay?"

Happening today (before you arrive, sadly): "Forum For Equality plans a rally this afternoon at 5:30 p.m. in Jackson Square to protest the decision, along with other groups including the ACLU of Louisiana, the Human Rights Campaign, the New Orleans LGBT Community Center and Parents and Friends of Lesbians and Gays." [source]
posted by komara at 10:34 AM on September 3


It was inevitable some court was going to decide the other way. Not a particular surprise in Louisiana either. Fortunately there is crystal clear, unambiguous precedent that a marriage legal in one state must be honored in other states. That particular case hasn't been argued yet, it'll probably be another five or ten years, but we will win.
posted by Nelson at 10:34 AM on September 3 [3 favorites]


Um, correct me if I'm wrong and I'm not a judge or anything but isn't this not really how fundamental rights work? I mean, if they have to be entrenched they're not really "fundamental", are they? I thought fundamental sort of meant you were supposed to get them no matter what.

But this is the flaw in a progressive, evolving view of "fundamental rights"--according to proponents of this model of jurisprudence, such rights evolve, sometimes going from "not a right or possibly even illegal" to "fundamental," sometimes even in a generation. But if that temporal development is insufficient, i.e., if they haven't evolved enough, then it should follow that they're not fundamental enough to be recognized as such.

I think proponents of this jurisprudential model have to accept results like these until such time as two or three lawyers (in the case of a federal circuit court) or five or more lawyers (in the case of the Supreme Court) can tell us exactly what our rights are, and whether they're sufficiently evolved as to be fundamental.
posted by resurrexit at 10:36 AM on September 3 [2 favorites]


Louisiana uses your birth certificate for the purposes of deciding whether a marriage is straight or gay (and in the past for deciding whether a marriage was interracial or not). They require surgery to change the gender on your birth certificate, but they don't specify any particular kind. I have two engaged friends who had bottom surgery last year, but one is waiting to change her birth certificate until after they get married. Another trans woman friend of mine is marrying a cis dude here next year. I'm having facial surgery later this year and I'm just going to hang on to the surgeon's letter so I can change my birth certificate or not in the future as needed.

Depending on who you love and what access to and desire for surgery you have, trans people have way better options here than most cis gay people. So far from being a bizarre hypothetical scenario, he's holding up as a bogeyman the one kind of gay marriage the state is already performing.

I'm a FFE member and I'm probably going to the rally!
posted by Corinth at 10:37 AM on September 3 [25 favorites]


I'm pretty tired of judges looking at non-straight people and deciding that, in opposition to all available evidence, they are not a suspect class. Strict scrutiny is clearly the standard that should be applied here; copping out to "rational basis" for sexual orientation (but not race, gender, national origin, religion...) is just ridiculous.

When this is fight long over and settled to the history books, the inexplicable refusal to recognize such an obvious suspect class will be the "separate but equal" of our time.
posted by 0xFCAF at 10:38 AM on September 3 [4 favorites]


It just occurred to me that it may have been a deliberate move on Judge Feldman's part to wait until after Southern Decadence (our yearly three-day celebration of gay life, music, and culture) to issue this ruling, otherwise he could have had one hell of a big protest on his hands.
posted by komara at 10:40 AM on September 3 [9 favorites]


It'll be interesting to see what happens at the 5th Circuit on appeal.
posted by leotrotsky at 11:02 AM on September 3


Sorry this happened, Louisiana people.

Still appreciative that district cases other than this one have ruled consistently in favor of civil rights recently.
posted by halifix at 11:03 AM on September 3


I mean, it sucks, but at the same time, it's about the only ruling on this issue that I've read that's gone the wrong way in quite a while.
posted by MeanwhileBackAtTheRanch at 11:05 AM on September 3


This is very sad. MeanwhileBackAtTheRanch, a recent TN ruling was bad as well, but that was a state and not federal court.
posted by roomthreeseventeen at 11:06 AM on September 3 [1 favorite]


But this is the flaw in a progressive, evolving view of "fundamental rights"--according to proponents of this model of jurisprudence, such rights evolve, sometimes going from "not a right or possibly even illegal" to "fundamental," sometimes even in a generation.

It isn't rights that change. It is our understanding of rights that changes.
posted by audi alteram partem at 11:06 AM on September 3 [10 favorites]


Chavenet said what I came in to say. Judge Feldman is on the wrong side of history.
posted by arcticseal at 11:08 AM on September 3


So he based his ruling on Louisiana's legitimate interest in linking children with intact families formed by their biological parents?
So the judge thinks Louisiana could refuse to recognize adoption because it's not an intact family formed by biological parents? Damn.
posted by fogovonslack at 11:08 AM on September 3 [5 favorites]


This Court is powerless to be indifferent to the unknown and possibly imprudent consequences of such a decision.

Oh man, I'm definitely using "It's not that I'm opposed to [shit what I don't like], I'm just powerless to be indifferent to it." I'm sure there's a editorial cartoon or two in that as well.
posted by George_Spiggott at 11:11 AM on September 3 [14 favorites]


The key cases to watch.

1) Does SCOTUS grant cert to McQuigg v. Bostic? The previous case, Bostic v. Schaefer overturned Virgina's ban, this was appealed to the District, affirmed, appealed to the 4th Circuit, and affirmed again. The 4th Circuit mandated that marriages be allowed, but this was stayed by SCOTUS "pending the timely filing and disposition of a petition for a write or certiorari."

To me, what that says is "SCOTUS wants this case." But if not, they'll just deny cert and the 4th's ruling will stand in the states the 4th Circuit covers.

SCOTUS has already stayed an earlier judgement in Kitchen v Herbert, and since then, everybody has stayed their own rulings pending appeal.

2) This case before the 5th Circuit. If the 5th doesn't reverse this, we'll have the 4th and 8th circuits already ruling that same sex marriage is legal and a right, and the 5th ruling against. Circuit Splits almost always end up in the Supreme Court. So, if for whatever reason the 5th circuit sustains this ruling, then it'll end up at SCOTUS anyway. There is a very real chance, though, that SCOTUS will intervene before the 5th even hears this case.

Everything else in court? They're just waiting and wondering, because no matter what they say, it'll be stayed until the writ comes down. Basically, everything now in the courts is really noise. The key cases are already at the level they need to be to get a writ, and once does, there will almost certainly be a definitive ruling that will make all the other cases moot.

The next conference when SCOTUS will consider new petitions is on September 29th and will likely last days, but that's when we'll find out if SCOTUS really wants this.
posted by eriko at 11:14 AM on September 3 [14 favorites]


I've been super homesick for New Orleans all month. So thanks, Feldman, for reminding me that I wasn't welcome as far as the state was concerned. Lessens the homesickness a little, I guess.
posted by a hat out of hell at 11:15 AM on September 3 [3 favorites]


This is thwarting my plans to quit my job and become a full-time French Quarter SS Marriage Officiant.
posted by ColdChef at 11:15 AM on September 3 [8 favorites]


Ive heard (probably here on the blue) that a few of these negative rulings actually increase the likelihood of a the SCOTUS taking up one of the cases because there is a divide. If every case is the exact same SCOTUS takes less interest because it just lets the states decide. However, if there is confusion they may have to make a ruling to prevent chaos?

Is that accurate? True? I realize it is still a crap ruling and I hate hate hate it for the people who's rights are being impeded, but tiny silver lining?
posted by Twain Device at 11:17 AM on September 3


Does anyone really think that the Conservative Supreme Court is going to uphold any of these Gay Rights cases?
I thought it was just assumed all along that Scalia and company would kill all of this eventually.
posted by Flood at 11:17 AM on September 3


Feldman, who was appointed by Ronald Reagan in 1983, described the concept of same-sex marriage as "nonexistent and even inconceivable until very recently." He wrote, "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."

There is literally not a single thing this judge said that wasn't used as arguments against interracial marriage 50 years ago.
posted by XQUZYPHYR at 11:20 AM on September 3 [16 favorites]


Yeah, not shocked that a 70 year old white male judge appointed by Reagan and with a dubious history related to off shore oil drilling comes out with this ruling. So, to be clear, in the mind of Judge Feldman, issuing a moratorium on off shore drilling in the wake of the Deepwater Horizon disaster is an arbitrary and capricious action on the part of the government, but government banning same sex marriage is just fine.
posted by Muddler at 11:20 AM on September 3 [11 favorites]


Feldman, who was appointed by Ronald Reagan in 1983, described the concept of same-sex marriage as "nonexistent and even inconceivable until very recently."

When you're calling same-sex marriage "inconceivable," what's really inconceivable unless you've been living under a boulder or in a coma for the last 30 years is that you could actually find same-sex marriage inconceivable.
posted by blucevalo at 11:22 AM on September 3 [2 favorites]


Feldman, who was appointed by Ronald Reagan in 1983, described the concept of same-sex marriage as "nonexistent and even inconceivable until very recently."

"You keep using that word. I do not think it means what you think it means."
posted by Atom Eyes at 11:25 AM on September 3 [34 favorites]


If the Supreme Court hears the gay marriage cases and overturns them to say it's a state issue and banning it isn't unconstitutional I hesitate to think of the fallout. The thousands of couples that are already married, the federal tax implications of people who filled out their tax forms in good faith who now have their status changed, the lawsuits from relatives who feel that the partner next-of-kin made the wrong decision about a person's medical treatment.

The list goes on. Not only would denying gay marriage be a crime against a swathe of humanity, it would be such a bureaucratic clusterfuck on a scale never before seen in the western world.
posted by Talez at 11:25 AM on September 3 [3 favorites]


It isn't rights that change. It is our understanding of rights that changes.

Your two sentences are contradictory--either rights are natural, universal, and pre-exist wholly apart from our thoughts about them, or they are merely the whim of the living. You say "our understanding"--who is "our"? Who decides what our "understanding" is? What principles are applied? Who decides on those? Applying your principles, someone could make an equally plausible argument that rights change; our understanding of rights doesn't change. Quod gratis asseritur, gratis negatur.
posted by resurrexit at 11:26 AM on September 3


Not only would denying gay marriage be a crime against a swathe of humanity, it would be such a bureaucratic clusterfuck on a scale never before seen in the western world.

On one hand, true. On the other hand, there's a part of me that would be wildly pleased that the revolution finally came because they tried to annul thousands of gay marriages.
posted by Mooski at 11:27 AM on September 3


but any right to same-sex marriage is not yet so entrenched as to be fundamental

It's bizarre that for all our talk about rights even the judiciary can't agree on where they come from. What say we start with the proposition that the burden of proof of harm is on the denier of a right rather than the claimant and see how that goes?
posted by George_Spiggott at 11:28 AM on September 3 [3 favorites]


I'm fairly certain there are trans people in Louisiana who are legally married.
posted by roomthreeseventeen at 11:28 AM on September 3 [1 favorite]


XQUZYPHYR: Feldman, who was appointed by Ronald Reagan in 1983, described the concept of same-sex marriage as "nonexistent and even inconceivable until very recently." He wrote, "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."

Listen whitey, you're the newcomer here.
posted by filthy light thief at 11:29 AM on September 3 [9 favorites]


"For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Plaintiffs' counsel was unable to answer such kinds of questions; the only hesitant response given was that such unions would result in "significant societal harms" that the states could indeed regulate. But not same-gender unions. This Court is powerless to be indifferent to the unknown and possibly imprudent consequences of such a decision."


I'm certainly no attorney, but isn't the appropriate answer to that question something like "We have no idea. Those are complex legal issues and are not the relief we are asking for."
posted by Naberius at 11:30 AM on September 3 [7 favorites]


When you're calling same-sex marriage "inconceivable," what's really inconceivable unless you've been living under a boulder or in a coma for the last 30 years is that you could actually find same-sex marriage inconceivable.

That's actually the quote that startled me the most too, and one that I think would be best highlighted in discussion about the archaic thinking of his ruling. What, exactly, was his metric for "very recently?" Does he like, think gay people didn't exist until the 1970's? It's like the legal equivalent of people on RedState who claim there aren't actually as many gay people as you think because "I've never met one."

Does anyone really think that the Conservative Supreme Court is going to uphold any of these Gay Rights cases? I thought it was just assumed all along that Scalia and company would kill all of this eventually.

This was a shitty ruling from a deeply conservative activist judge, but even Scalia's smart enough to know which way the tide is turning here. It's looking more and more likely that they would have to make the ruling in the early summer of 2016. Ruling against what has now been validated by, literally, over half the country will send shockwaves through a voting bloc that Scalia, for the sake of his replacement, really would prefer not to motivate.
posted by XQUZYPHYR at 11:31 AM on September 3


But this is the flaw in a progressive, evolving view of "fundamental rights"--according to proponents of this model of jurisprudence, such rights evolve, sometimes going from "not a right or possibly even illegal" to "fundamental," sometimes even in a generation.

Translation: If we allow gay marriage, next we'll have dogs marrying cats!

If that's the problem this shitheel has, then I suggest he holds off on those objections until such time as the relevant case of Spot and Fluffy v. Louisiana hits his docket.

There is literally not a single thing this judge said that wasn't used as arguments against interracial marriage 50 years ago.

Exactly, and I'll add some conjecture: This opinion seems to be based on the notion that interracial marriage was the first step on a slippery slope to gay marriage.
posted by Sys Rq at 11:31 AM on September 3 [4 favorites]


Does anyone really think that the Conservative Supreme Court is going to uphold any of these Gay Rights cases?
I thought it was just assumed all along that Scalia and company would kill all of this eventually.


Well, the traditional fifth conservative vote on SCOTUS is Kennedy and he authored the lead opinion on Lawrence v. Texas which has probably been the one of the most quoted/cited cases in the various gay marriage suits (no one can resist quoting from Scalia's dissent in that case). Unless Kennedy has radically changed his mind from last year's Windsor opinion which he also wrote, it's unlikely that he's going to side with the other four conservatives in whichever case becomes the final SCOTUS word on gay marriage.

So it's only a matter of time before same-sex marriage is the law of the land. Hopefully that time is short.
posted by longdaysjourney at 11:32 AM on September 3 [3 favorites]


I'm pretty sure that voting rights for black people were "not so entrenched" in the Jim Crow era as to be fundamental either, by this guy's definition.

In fact you could pretty much turn this argument, if that's what it is, into a Mad Lib and get all kinds of fun out of it.
posted by George_Spiggott at 11:34 AM on September 3


"Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental."

Compare that with the Iowa court that ruled in favor of same sex marriage rights:
We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.
There is no need for "entrenchment" of political attitudes: what does the government gain, and what do gay couples lose, from not being able to marry?
posted by filthy light thief at 11:35 AM on September 3 [1 favorite]


You say "our understanding"--who is "our"?

Us. "We the people." For example, the same "us" who refused to recognize the rights enumerated in the 13th amendment prior to 1865, thus denying a basic human right that exists whether it is enumerated in a nation's laws or not.

All citizens of Athens circa 430 BCE had the right of universal suffrage. That they didn't have an elected assembly that recognized that right and that they could not exercise that right doesn't make the right disappear.
posted by audi alteram partem at 11:36 AM on September 3


Regarding "entrenchment", note as well the fact that Scalia's dissent in Lawrence was mostly a harrumph about how mere moral opprobrium against homosexuality had not been recognized as a legitimate government interest.
posted by Sticherbeast at 11:40 AM on September 3


I'm pretty sure that voting rights for black people were "not so entrenched" in the Jim Crow era as to be fundamental either, by this guy's definition.

It's like they don't fucking get it no matter how many times we repeat ourselves.

1776 - "We hold these truths to be self-evident, that all men are created equal"
1868 - "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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."
1870 - The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
1920 - "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

How many fucking times do we need to repeat the same thing over and over and over, correcting all of these constitutional edge cases, because assholes keep trying to play semantic games with the latest downtrodden group du jour.
posted by Talez at 11:44 AM on September 3 [25 favorites]


Also, if SCOTUS dare say gay marriage is constitutional, I look forward to the fucking twisted train of thought and logic on this one. Ceremonial deism was one giant leap of retardedness to keep references to God in clear violation of the Establishment Clause. The logic is going to make M. C. Escher's relativity look entirely simple and sensible in comparison.
posted by Talez at 11:50 AM on September 3


Good observation from ThinkProgress:

It’s also worth noting that, on four separate occasions, Feldman relies upon Chief Justice John Roberts’ dissenting opinion in United States v. Windsor, the case striking down DOMA. Roberts’ dissenting opinion is, by definition, not the opinion of the majority of the Court. So it is an odd place for a lower court judge to turn to as an authority.

I don't actually know if that's common, but yeah, using the losing opinion of a higher court to strengthen a ruling seems... weird.
posted by XQUZYPHYR at 11:55 AM on September 3 [4 favorites]


Also, if SCOTUS dare say gay marriage is constitutional, I look forward to the fucking twisted train of thought and logic on this one. Ceremonial deism was one giant leap of retardedness to keep references to God in clear violation of the Establishment Clause. The logic is going to make M. C. Escher's relativity look entirely simple and sensible in comparison.

Honestly, the best part about SCOTUS begrudgingly accepting that gay marriage is Constitutional will be the primal scream overreach of dozens of stage legislators who will immediately rush to try and enact a Constitutional Convention for an anti-gay Amendment, and their subsequent removal from office by voters for being babbling lunatics a year later.

A thousand Michelle Bachmanns all crying out in one voice, and then suddenly silenced.
posted by XQUZYPHYR at 11:57 AM on September 3 [7 favorites]


Talez, references to God where? It's not as if Loving v. Virginia invoked God, except in the quotation from the racist lower court.
posted by Sticherbeast at 11:59 AM on September 3 [1 favorite]


Does anyone really think that the Conservative Supreme Court is going to uphold any of these Gay Rights cases?
I thought it was just assumed all along that Scalia and company would kill all of this eventually.
Well, the traditional fifth conservative vote on SCOTUS is Kennedy and he authored the lead opinion on Lawrence v. Texas which has probably been the one of the most quoted/cited cases in the various gay marriage suits (no one can resist quoting from Scalia's dissent in that case)
This. I'm not a lawyer, but as a semi-obsessive SCOTUS watcher, I have a hard time seeing Kennedy miss the chance to cement his pro-gay rights legacy. Every time it's come before the court, he has sided with gay rights. He wrote the opinions in Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor. This seems to be an issue he cares about. You already have Ginsburg, Sotomayor, Kagan, and Breyer (I assume). Kennedy makes five. I would be very surprised if SCOTUS doesn't uphold gay marriage when it hits the high court.
posted by Pater Aletheias at 12:00 PM on September 3 [4 favorites]


I'm pretty interested to see if Roberts sticks with the conservatives for the Final Opinion, whenever it comes. Would you really want to be on the wrong side of history for this one? (I'm sort of convinced that's why he switched in National Federation of Independent Business v. Sebelius (the Obamacare case)). OTOH, he's a conservative Roman Catholic, as is his wife, so maybe it's not even a real possibility.
posted by longdaysjourney at 12:01 PM on September 3


resurrexit >

"It isn't rights that change. It is our understanding of rights that changes."

Your two sentences are contradictory--either rights are natural, universal, and pre-exist wholly apart from our thoughts about them, or they are merely the whim of the living.


That's a false dichotomy. As you say, what's asserted without reason can be denied without reason.

You say "our understanding"--who is "our"?

People.

Who decides what our "understanding" is?

Quite obviously, it's a complicated process!

What principles are applied?

It depends!

Who decides on those?

Everyone does, but not everyone has the power to enforce their conception of rights over another's.

I mean, you don't really think that there are simple answers to such broad questions about the negotiation of personhood and social privileges across time and place, do you?

Applying your principles, someone could make an equally plausible argument that rights change; our understanding of rights doesn't change. Quod gratis asseritur, gratis negatur.

That argument is not equally plausible, though, because it's easy to demonstrate empirically that understandings of rights do change.
posted by clockzero at 12:10 PM on September 3 [2 favorites]


"For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

If we were serious about the 14th amendment? Yes if they're consenting adults, yes if they're consenting adults, yes if they're consenting adults, yes if they're consenting adults, no because they're not consenting adults, no reason why it should, what even about it, it doesn't matter. Next.

This guy seems to have missed the entire point of the case before him and all prior rulings. No, there is no fundamental right to same-sex marriage. There is a fundamental right to marriage, full stop, and all people have the right to equal access to marriage, regardless of the genders of the participants.
posted by kafziel at 12:19 PM on September 3 [2 favorites]


Strictly speaking, resurrexit and clockzero, rights change and our understanding of rights change. Some rights are vaguely stated (like "due process") and our understanding of what that entails evolves over time through trial and error. Other rights are created out of whole cloth when the necessity arises - the "right to privacy" was essentially invented in the Roe v. Wade opinion.

"For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

If we were serious about the 14th amendment? Yes if they're consenting adults, yes if they're consenting adults, yes if they're consenting adults, yes if they're consenting adults, no because they're not consenting adults, no reason why it should, what even about it, it doesn't matter. Next.


Um, no. There are strong state interests against incest (health interests, mainly) that would trump your right to marry whomever you please. So the more reasonable answer is: no, no, no, no, no, probably but we can argue about that later, who cares, and screw you.
posted by Ben Trismegistus at 12:27 PM on September 3 [3 favorites]


XQUZYPHYR: "I don't actually know if that's common, but yeah, using the losing opinion of a higher court to strengthen a ruling seems... weird."

Many of the pro-equality judges have cited Scalia's delicious dissent in their rulings.
posted by Corinth at 12:28 PM on September 3 [2 favorites]


What about a transgender spouse? Is such a union same-gender or male-female?

This is the part that really does my head in. Where the hell is was he even going with this?

But since he brings it up, have there been any U.S. cases like this one in Italy, where a couple had to fight to remain married after one underwent gender reassignment? You have to wonder where Judge Feldman would come down on that one.
posted by George_Spiggott at 12:29 PM on September 3


There are strong state interests against incest (health interests, mainly) that would trump your right to marry whomever you please.

Not if a father wanted to marry his son.

posted by resurrexit at 12:35 PM on September 3 [1 favorite]


As with any slippery slope analysis, his thinking was, "And here's a list of other things I don't like/understand!"
posted by Ben Trismegistus at 12:35 PM on September 3 [3 favorites]


Not if a father wanted to marry his son.

Mental health interests, surely.
posted by Ben Trismegistus at 12:36 PM on September 3


Talez, references to God where? It's not as if Loving v. Virginia invoked God, except in the quotation from the racist lower court.

I was referring to things like Lynch v. Donnelly and Elk Grove Unified School District v. Newdow.
posted by Talez at 12:41 PM on September 3


"It isn't rights that change. It is our understanding of rights that changes."

I was always given to understand that the fundamental principal of this American democracy was that we are each of us born with ALL THE POWERS/RIGHTS/FREEDOMS. We as a people come together and form a government, and to it we sede some of these powers and freedoms, for what we deem a greater good. We said at the start that Powers not explicitly granted to the federal government or to the states were reserved for the people. Further the framers realized that there were powers/freedoms to critical to be left implicit under by their NOT being among those enumerated as state or federal, that they must be explicitly stated as the peoples. Hence the first 10 amendments which were added before the constitution even went to the people for a vote.

And we've continued on in that fashion, coming to points where the umbrella of the implicit has proven insufficient to protect what may not have been originally recognized as a fundamental right.
posted by The Legit Republic of Blanketsburg at 12:43 PM on September 3


"You keep using that word. I do not think it means what you think it means."

I seriously hope something along this line shows up in the appeal.
posted by stevis23 at 12:43 PM on September 3


it'll get down to justice kennedy, just you watch.
posted by bruce at 12:48 PM on September 3


I'm not sure I understand parts of this decision.

"Defendants counter that the laws trigger rational basis review, which is satisfied by Louisiana's legitimate interest in linking children with intact families formed by their biological parents"


How does recognizing same sex marriages jeopardize the links of children with their families "formed by their biological parents"? Surely no more than, say, adoption or divorce and re-marriage, all of which are legal? He also goes on to explain that this doesn't make the state's decision "irrational", which leaving aside whether or not that's true, doesn't explain why or what makes it "rational", other than "it's really old". Does "not irrational" equate "rational"?
posted by Hoopo at 12:51 PM on September 3 [1 favorite]


Oh shit I said if SCOTUS finds gay marriage constitutional. I clearly meant unconstitutional. I apologize for my error.
posted by Talez at 1:00 PM on September 3 [2 favorites]


One of the weirdest things about to me about our legal system is seeing such plainly stupid ideas so carefully and technically worded. It's like if Rolex made a machine whose sole purpose was to walk in on you when you were taking a crap.
posted by SharkParty at 1:00 PM on September 3 [19 favorites]


Ben Trismegistus >

Strictly speaking, resurrexit and clockzero, rights change and our understanding of rights change.

Well, perhaps. That reasoning certainly holds if you conflate the recognition of rights with the rights themselves. On the other hand, it would seem intuitively wrong to assert that a legal statute enshrining and characterizing a right creates that right, since there had to be some idea of it before it was put into law.

Some rights are vaguely stated (like "due process") and our understanding of what that entails evolves over time through trial and error. Other rights are created out of whole cloth when the necessity arises - the "right to privacy" was essentially invented in the Roe v. Wade opinion.

But that's not created out of whole cloth, it's derived from extant law in response to a unique impingement on people's liberty and life. The fact that people find inventive ways to restrict and constrain the lives and rights of others doesn't imply that the arguments used to defeat those arbitrary restrictions entail the invention of new rights.
posted by clockzero at 1:03 PM on September 3 [1 favorite]


On the other hand, it would seem intuitively wrong to assert that a legal statute enshrining and characterizing a right creates that right, since there had to be some idea of it before it was put into law.

Agreed. But then what is the source of such a right?

And since we're talking about marriage--if it only recently occurred that a man ought to be free to marry a man, what is the source of that right? Can it be said to have pre-existed as some sort of universal or natural right?
posted by resurrexit at 1:08 PM on September 3



Fast facts about Judge Feldman’s ruling against the freedom to marry in Louisiana:
The ruling insists that Louisiana’s laws do not discriminate on the basis of gender because “Louisiana’s laws apply evenhandedly to both genders – whether between two men or two women.”
that's some old-ass rationalizing going on
posted by Corinth at 1:08 PM on September 3 [1 favorite]


So basically, the decision cites Windsor and especially Justice Roberts' dissent. It cites state's right to define marriage as paramount and emphasizes that a change will have to come through democratic process (voting) rather than a judicial decision.

Since Louisiana is one of the more conservative US states, it's unlikely gay or lesbian couples will be able to marry in the near future, or have their marriage from another state recognized.
posted by zarq at 1:10 PM on September 3


But that's not created out of whole cloth, it's derived from extant law in response to a unique impingement on people's liberty and life. The fact that people find inventive ways to restrict and constrain the lives and rights of others doesn't imply that the arguments used to defeat those arbitrary restrictions entail the invention of new rights.

Potato, potaaaahto. I certainly think that Americans had an intrinsic right to privacy before Roe v. Wade, but for all intents and purposes, it wasn't recognized. And that opinion (despite my agreeing with the outcome) goes through considerable machinations to explain why it isn't really just making up the right to privacy.
posted by Ben Trismegistus at 1:12 PM on September 3


Potato, potaaaahto. I certainly think that Americans had an intrinsic right to privacy before Roe v. Wade, but for all intents and purposes, it wasn't recognized. And that opinion (despite my agreeing with the outcome) goes through considerable machinations to explain why it isn't really just making up the right to privacy.

I don't mean to be argumentative (or perhaps litigious is the right word here), but I'm confused by your comments. On one hand, you say that rights change, as does our understanding of them; but on the other you say that the right to privacy existed before Roe v Wade, which you previously characterized as the invention of a right from whole cloth. So that right was not created from whole cloth, but in fact it actually existed (as a corollary of an enumerated right, perhaps) before it was specifically enshrined in law, no? So was there in fact a change in that right, since it didn't exist before it was recognized, or was there no change in the right itself, and it was merely understood in a new way? Or something else?
posted by clockzero at 1:23 PM on September 3 [1 favorite]


Talez: How many fucking times do we need to repeat the same thing over and over and over, correcting all of these constitutional edge cases, because assholes keep trying to play semantic games with the latest downtrodden group du jour.

Sadly, your examples outline just how the view of "all men" has slowly but surely expanded, from land-holding white men, to include former slaves, and (again, really, we mean it this time) former slaves, and finally women.

I'd be ecstatic if constitution was rewritten, to fold in the amendments and clarify once and for all clarify: "by 'all men' we really and truly mean all humans, regardless of age, race or appearance, gender identity, sexual orientation, religion, or any other category we can imagine, from now until heat death."
posted by filthy light thief at 1:25 PM on September 3 [3 favorites]


it's unlikely gay or lesbian couples will be able to marry in the near future

Assuming SCOTUS moves like the wind and decides to take one of the same-sex marriage cases at the end of September, the earliest we could expect an opinion would probably be 2016-ish.

SCOTUSblog had a good post up about this issue recently:

http://www.scotusblog.com/2014/08/last-of-first-round-same-sex-marriage-cases-is-in/

Assuming they do take up the issue, oral argument would probably be scheduled for next term, and the opinions are typically issued about 3 months after oral argument. So we probably won't see anything from SCOTUS until 2016.

Just a bit longer. We just need to keep on keeping on.
posted by longdaysjourney at 1:29 PM on September 3


The way he cites the dissent, it starts to sound like he has a serious expectation that Windsor is going to get overturned and that eventually the dissent will be seen as the side in the right, basically. What makes this disturbing to me is how many of the people involved do very well see that they're in the midst of a historic debate--and yet their vision is that they really need to shore up their reputations so that a bigoted future will see them as appropriately intolerant.
posted by Sequence at 1:34 PM on September 3 [1 favorite]


I don't mean to be argumentative (or perhaps litigious is the right word here), but I'm confused by your comments. On one hand, you say that rights change, as does our understanding of them; but on the other you say that the right to privacy existed before Roe v Wade, which you previously characterized as the invention of a right from whole cloth. So that right was not created from whole cloth, but in fact it actually existed (as a corollary of an enumerated right, perhaps) before it was specifically enshrined in law, no? So was there in fact a change in that right, since it didn't exist before it was recognized, or was there no change in the right itself, and it was merely understood in a new way? Or something else?

Hence the potato/potahto. It's mainly a semantic distinction. There are two ways of looking at the "rights" we possess. You could talk about rights we possess just by virtue of being human in civil society -- we have a right not to be murdered in cold blood, and no one actually has to articulate that for it to be true. Alternatively, you could talk about the rights we possess by virtue of the legal structures of the country - either through the Constitution, statute, judicial fiat, etc. Depending on your interpretation, the right to privacy could fall into either category, and reasonable minds can differ about which is more appropriate. On the one hand, I'd like to think that the right to privacy exists independent of our legal structures (hence the "intrinsic right" comment), but on the other hand, as a legal reality, the right to privacy didn't technically exist until it was codified by the Supreme Court (whether invented out of whole cloth or synthesized from other existing rights).

I'm having difficulty coming up with a better example of my original point (some rights change). I suppose you could argue that we did not have the right to be free from cruel and unusual punishment until it was written down in the Bill of Rights. (Also, that's a right that, once it was written down, has changed in interpretation over the years.) Hope that helps.
posted by Ben Trismegistus at 1:34 PM on September 3




Box Turtle Bulletin has a good reac post up.

FWIW, if you've ever read the Loving v. Virginia decision, it's clear that the poor reasoning, personal bias, and obviously clouded judgment of the Virginia Supreme Court of Appeals turned out to be their undoing when the Lovings appealed the decision to SCOTUS. Let's hope the same applies here.
posted by duffell at 1:44 PM on September 3 [2 favorites]


Griswold v. Connecticut predates Roe v. Wade. Right to privacy has certainly legally evolved; I'd argue that it actually has culturally evolved too.
posted by nat at 1:59 PM on September 3


Fair enough - I forgot that Griswold was earlier. Even in that case, however, Justice Douglas pulled the right to privacy out of the "penumbras" and "emanations" of other enumerated Constitutional rights.
posted by Ben Trismegistus at 2:07 PM on September 3


Um, no. There are strong state interests against incest (health interests, mainly) that would trump your right to marry whomever you please.

Actually, Judge Posner I'd the 7th Circuit Court of Appeals pointed out that in cases where incest wouldn't less to children, such as elderly first cousins marrying, the state does not have a health interest, and as such those marriages aren't illegal.
posted by happyroach at 2:12 PM on September 3 [1 favorite]


The ruling insists that Louisiana’s laws do not discriminate on the basis of gender because “Louisiana’s laws apply evenhandedly to both genders – whether between two men or two women.”

Ah yes..."the law, in its majestic equality."
posted by uosuaq at 2:15 PM on September 3 [1 favorite]


Crap like this is why I'm going to be moving out of New Orleans and back to a more functional part of the country as soon as possible. Plans are already in motion to escape. I can't take it anymore down here; and New Orleans is the best bit by far.
posted by Anticipation Of A New Lover's Arrival, The at 3:25 PM on September 3


If the Supreme Court hears the gay marriage cases and overturns them to say it's a state issue and banning it isn't unconstitutional I hesitate to think of the fallout.

Haven't all the federal decisions been stayed pending SCOTUS review?
posted by jpe at 3:25 PM on September 3


On the one hand, I'd like to think that the right to privacy exists independent of our legal structures

So they're always there, floating around the Platonic heavens? Weird. I don't see how there can be a right in any meaningful sense without recognition. We can say there ought to be those rights, but that's a different thing.
posted by jpe at 3:28 PM on September 3


I'm at Jackson Square now and there are only like forty people. Kind of bummed!
posted by Corinth at 3:35 PM on September 3


The ruling insists that Louisiana’s laws do not discriminate on the basis of gender because “Louisiana’s laws apply evenhandedly to both genders – whether between two men or two women.”

That doesn't even work within its own silly assumptions. A law that says a man can marry a woman but a woman can't discriminates against women. And, y'know, vice versa.
posted by George_Spiggott at 3:44 PM on September 3


Corinth: I am there in spirit, if that helps.
posted by komara at 3:44 PM on September 3 [1 favorite]


picture

Had some speakers from EQLA, Forum For Equality, the New Orleans LGBT Community Center, and PFLAG. The media was there, too, at least.
posted by Corinth at 4:02 PM on September 3


Has anyone posited the legal position that it's no goddamn business of the government what my gender is?
posted by odinsdream at 5:23 PM on September 3


Fortunately there is crystal clear, unambiguous precedent [referencing Loving v Virginia] that a marriage legal in one state must be honored in other states.

It's also a crystal clear, unambiguous precedent that, contrary to Feldman's position, who gets to marry who is not subject to the whims of a political majority.
posted by Gelatin at 6:02 AM on September 4


Has anyone posited the legal position that it's no goddamn business of the government what my gender is?

In a world where there is violence and injustice and unfairness of all kinds perpetrated on people solely because of gender and gender expression, I think there's at least some value in the government caring about gender.
posted by Etrigan at 6:07 AM on September 4


I think there's at least some value in the government caring about gender.

I don't see a conflict with the government having laws that ban discrimination based on gender and simultaneously removing gender markers from birth certificates and other official records. It actually drives me crazy that we have these markers as part of our "official" self from the minute we're born at all, that they're binary is just that much worse. This is the bureaucratic foundation of government-sponsored discrimination based on gender, which leads to ridiculous results like a trans FTM being "legally" able to marry a cis M but not a cis F. The binary notion is outdated, and doesn't serve a useful purpose.
posted by odinsdream at 6:13 AM on September 4


And since we're talking about marriage--if it only recently occurred that a man ought to be free to marry a man, what is the source of that right? Can it be said to have pre-existed as some sort of universal or natural right?

Yes. Next question?

I am equal to you and him and her and them. We are all equal. We all get the same rights or none of us do.
posted by feckless fecal fear mongering at 8:17 AM on September 4 [2 favorites]


What about a transgender spouse? Is such a union same-gender or male-female?

This is the part that really does my head in. Where the hell is was he even going with this?


This question, taken alone, does not necessarily have to be bigoted. I remember asking about how the Army classified transgender spouses in my DADT briefing. (Because the military used to consider "Getting married" as "Telling") I still remember the sputtering look on the lawyer's face. Because it seemed like a fairly major loophole that could either get people /out/ of being thrown out of the Army unfairly or /into/ being thrown out of the Army unfairly, depending on whether they went by chosen or legal gender (AT THE TIME, because back then, you could not legally change your gender, unlike now.)

However, I'm pretty sure this guy is probably a bigot, regardless of whether this question got asked or not.
posted by corb at 9:36 AM on September 4


The reason the question is weird is that it treats trans people getting married as some far-flung potential consequence of enacting marriage equality (along with, you know, incest), all while, again, trans people currently get married in Louisiana all the time. It's clear that he hasn't wrapped his head around gay people (he seems to think gay people are a modern invention), and trans people are so far removed from his worldview that he can't even imagine us currently existing and navigating the state's dumb laws. You'd think that a federal judge for Louisiana would have some kind of moderately accurate idea about Louisiana's citizens and laws, but he's an old white right-wing fuck so of course he's not required to think about anything outside of his immediate experience. It's even more hilarious because deciding in favor of marriage equality would, rather than setting us down a slippery slope towards trans people getting married in the future, immediately obviate his entire question about how to categorize relationships involving one or more trans people.
posted by Corinth at 10:53 AM on September 4


he seems to think gay people are a modern invention

And most likely not in the Foucault sense.
posted by corb at 11:01 AM on September 4






From NPR's article on this latest US appeals court decision:
Writing for a unanimous three-judge panel, Judge Richard Posner, a Reagan appointee, said that Wisconsin and Indiana had given the court "no reasonable basis" for forbidding same-sex marriage. Indeed, he said, "The only rationale that the states put forward with any conviction is ... so full of holes that it cannot be taken seriously."
Emphasis mine, to clarify that not all Reagan appointees are like Feldman, stuck in some period in the past, or so blinded by their own biases that they cannot see there is no damned reason why sexual orientation plays any role in permission or prohibition of marriage.

In fact, Posner focused on an aspect of marriage I think is annoying to dwell on in the first place: the children. Also from NPR:
As to the Indiana and Wisconsin cases decided on Thursday, Judge Posner wrote that at their "deepest level" they are about "the welfare of American children." The argument that the states "press hardest," he noted, is that they "seek to encourage marriage" between a man and a woman as a way of protecting children who can be the product of accidental pregnancies. And, he said, states argue if the biological parents aren't married, the children are often abandoned to a single parent or foster care. "Overlooked by this argument," said Posner, is that many of those children are adopted by homosexual couples, and "would be better off both emotionally and economically if their adoptive parents were married."
In short: the sexual orientation doesn't matter, it's about the love and commitment that is displayed through marriage (debates of the necessity of marriage to display love and commitment aside). I don't there should be any focus on marriages being about making or raising children, and the NPR article goes on to cover Posner's comments on that topic, too, but I'll leave those there, to avoid further tangents.
posted by filthy light thief at 6:15 PM on September 4 [1 favorite]


Emphasis mine, to clarify that not all Reagan appointees are like Feldman, stuck in some period in the past, or so blinded by their own biases that they cannot see there is no damned reason why sexual orientation plays any role in permission or prohibition of marriage.

Yeah. And, for what it's worth, Reagan also nominated Vaughn Walker, the judge who struck down Prop 8 in California.

That Reagan nomination got stuck in the Senate however, because the Democrats were concerned Walker was anti-gay*. He was renominated by George Bush in '89, and that one went through.

* Irony: He is gay.
posted by Sys Rq at 8:30 PM on September 4 [2 favorites]


Ruling overturned.
posted by Evilspork at 2:37 PM on September 23 [3 favorites]


Overturned isn't exactly the right word, since the two courts are on completely different levels, and it's generally kind of weird for a state court judge to focus so much on US rather than state law. It's definitely good news, though.
posted by Corinth at 9:34 AM on September 24 [1 favorite]


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