Wednesday, September 3, 2014

Read the Fine Constitution

I don't normally do two posts in one day, but I'm making an exception because of a particularly egregious bit of outcome-based judging by a federal judge in Louisiana today.

U.S. District Judge Martin L.C. Feldman, a Reagan appointee who is around 80 years old, issued an order and opinion today in which he granted summary judgment against plaintiffs who were challenging Louisiana's refusal to recognize same-sex marriage.  Judge Feldman becomes the first district judge since the Supreme Court's decision last year in Windsor v. United States, in which the Court declared the Defense of Marriage Act unconstitutional, to uphold a ban on same-sex marriage.

Although I have previously made my position very clear, I think there is room for reasonable minds to disagree on how to go about deciding these issues.  What we have no room for is a judge who decides the outcome he would like, then fixes the facts and argument around it, ignoring that which is inconvenient to the preferred outcome.

Boiled down, the judge's decision is that Louisiana has a rational basis for confining legal recognition of marriage to opposite-sex couples because of its "historically preeminent purpose of linking children to their biological parents."  Judge Richard Posner, a well respected judge of the Court of Appeals for the Seventh Circuit, recently made news for his pointed questions in oral argument that made mincemeat of this argument.  The simple fact is that marriage has never been confined to couples who are capable of creating biological children, nor has the making of babies ever been confined to those who are married.

Numerous courts before this one have noted, also, that the Supreme Court's 1967 decision in Loving v. Virginia, which outlawed anti-miscegenation statutes, carries direct parallels to the present status quo on same-sex marriage.  In this case, the plaintiffs argued that Louisiana's law banning same-sex marriage must be evaluated under "heightened scrutiny"--that is, to be valid, the law must be necessary to the accomplishment of a compelling governmental interest.  Most courts that have considered the question have agreed, in part because of Loving's use of that standard.  But not Judge Feldman:

Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.
I do not think that Judge Feldman was reading from the same Constitution as the rest of us.  The Fourteenth Amendment does not say one word about race.  What the Fourteenth Amendment actually does say, in the part that's pertinent to this issue, is:

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.
What the Fourteenth Amendment "condemns ... as a constitutional evil" are state laws that deny people their liberty without the due process of law and state laws that treat people differently based upon their characteristics.  Race is one of those characteristics, but it is far from the only one.

The Fourteenth Amendment is precious.  It applies to all of us as a guarantee of the fundamental fairness and respect that the government is compelled to give to all of us as citizens.  It is not confined to race-based classifications.  It is not a gotcha-game, nor is it to be sidestepped or disregarded when it is convenient.

I find it hard to believe that Martin L.C. Feldman could be a federal judge for thirty years without understanding this principle.  This is something that even a first-year law student can get right.  I must therefore conclude that Judge Feldman is a dishonest man, willing to ignore our most fundamental principles in search and support of his base prejudice.  That he had to lie to get the outcome he wanted demonstrates how ridiculous the supporters of these discriminatory, anti-American laws have become in holding on to their bigotry.

* * * * *

One more his opinion, Judge Feldman exalts the democratic process, arguing that because Louisiana has implemented this law by referendum, that process is entitled to great respect (evidently to the point at which he feels free to ignore the Constitution).

His argument is virtually identical to that of Arkansas state Sen. Jason Rapert, who argued, after Pulaski County Circuit Judge Chris Piazza struck down Arkansas's ban on same-sex marriage as unconstitutional, that the passage of the same-sex marriage ban by a wide majority in a referendum rendered it superior to the Constitution.

Sen. Rapert can perhaps be forgiven for not having a deep understanding of the hierarchy of laws in this country, since he didn't go to law school.*  Judge Feldman cannot.  Both are wrong.

* - He did, however, swear an oath to support the United States Constitution, as the Constitution requires of all state officials, so his forgiveness can only go so far.

Here's hoping for a speedy and unanimous reversal at the Fifth Circuit.

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