Thursday, September 04, 2014

Louisiana Federal Judge Issues Poorly Reasoned Decision Upholding Gay Marriage Ban

The string of twenty victories at the federal level for marriage equality since June 2013's United States v. Windsor decision came to an end on Wednesday when a Reagan-appointee district court judge in Louisiana ruled that state's ban on marriage equality does NOT violate the United States Constitution's guarantees of equal protection or due process.

Some observers immediately criticized the Robicheaux v. Caldwell ruling for multiple errors of judicial analysis, false statements and blatant bigotry.
 Judge Feldman did not spew the kind of hate that comes from the National Organization for Marriage or the Liberty Council or the Westboro Baptist Church. Nor, on the other hand, was he even remotely supportive. Besides calling being gay a "lifestyle choice" (Error 1) and comparing gays marrying to incest (Error 2), he asserted that the right the plaintiffs sought was a "new right," one definitely not steeped in the democratic tradition of this country--namely, a right to same-sex marriage (Error 3).
The judge makes basic constitutional errors like misstating the levels of scrutiny required in equal protection cases, calling them "rational basis, intermediate scrutiny and heightened scrutiny" when even my first-year students know that the levels of scrutiny used by the Supreme Court are rational basis, heightened scrutiny (sometimes called intermediate scrutiny) and strict scrutiny.

We shall see if this ruling will have any effect on the ultimate question of whether states have the right under the U.S. constitution to deny the fundamental right to marry to same-sex couples while allowing opposite-sex couples to enjoy the rights, privileges and responsibilities of civil marriage.

Hat/tip to Joe.My.God.

1 comment:

Prof. David B. Cruz said...

Sometimes "heightened scrutiny" refers to "either intermediate or strict scrutiny," that is, some tier greater than rational basis review.

Though, of course, Judge Feldman was simply mistaken to treat "heightened scrutiny" as synonymous with "strict scrutiny."


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