In the long run, 15th Judicial District Court Judge Edward Rubin’s opinion granting a Lafayette woman the right to adopt the young son of her spouse, who happens to be another woman, probably won’t make much difference.
Rubin’s decision, which explicitly recognizes the legality of the two parents’ out-of-state marriage, is bound for the Louisiana Supreme Court, on an appeal by Attorney General Buddy Caldwell.
And the much larger constitutional questions surrounding Louisiana’s ban on gay marriage — as well as the prohibition of the sort of adoptions at the heart of the case — are playing out in federal rather than state court. Earlier this month, a federal judge in New Orleans, Martin Feldman, became the first district court judge in the country to uphold a state ban; that decision is under appeal, too, and the whole matter is destined for the U.S. Supreme Court, probably sooner than later.
Still, Rubin’s decision is well worth reading and pondering, if only because it makes so much sense. This ruling, not Feldman’s, is the one that gives full weight to the experiences of all those Louisiana couples trying to live their lives and build their families as they see fit, without an intrusive government stepping in to deprive them of the opportunities freely enjoyed by other couples and families. This is the ruling that they deserve.
Rubin’s writing is more workmanlike, and the written decision even has few typos. Yet he’s the one who showed respect for the people before him, Angela Marie Constanza and Chasity Shanelle Brewer, who married in California in 2008, and Brewer’s 10-year-old biological son, whom Costanza is seeking to adopt. He’s the one who got the big questions right.
Rubin rejected the state’s claim that it has a “legitimate interest” in “linking children to intact families formed by their biological parents,” a dangerous and outdated idea. He noted that Louisiana “already allows for foster parent adoptions where there is no linkage to a child’s biological parent or family” and that “such placements have been found to be in the best interest of the child.”
He interpreted the U.S. Supreme Court’s complicated Windsor ruling, the case that invalidated the federal Defense of Marriage Act yet upheld states’ rights to make individual laws on marriage, as a vote against discrimination rather than a license to perpetuate it. Windsor upheld New York’s right to accept same-sex marriage, Rubin wrote, but that doesn’t mean that another state can “define and regulate marriage to the extent that it infringes upon the constitutional rights of the petitioners.”
And Rubin put the opposition to same-sex marriage in the proper historical context. Where Feldman explicitly rejected the legal likeness between current bans on same-sex marriage and now-illegal prohibitions against interracial marriage, Rubin rightfully links both to societal prejudice.
In fact, his ruling went further back in time than the landmark Loving v. Virginia decision of 1967, which invalidated miscegenation laws, and cited another famous case out of Louisiana.
“There are those who might argue that gays and lesbians can be treated differently, and yet be considered to be equal to the rest of Americans,” Rubin wrote. But fortunately, the Plessy v. Ferguson standard was overturned in 1954, when the U.S. Supreme Court declared “separate but equal” unconstitutional.
As for the Loving case, Rubin found it directly relevant. He noted a history of “deep seated hatred for the lifestyle of gays, lesbians, bisexuals, etc.,” and likened it to not-so-long-ago attitudes toward mixing the races.
“This court does not believe that the historical background of Loving is so different from the historical background underlying state’s bans on same-sex marriage,” he wrote. “One cannot look at Loving without recognizing that it was about racism as well as a couple’s decision to assert their right to choose whom to marry.”
For those reasons and more, Rubin found Louisiana’s law against same-sex marriage, adopted by referendum a decade ago, “arbitrary, capricious, discriminatory and unrelated to any legitimate state interest.”
True, after all is said and done, Rubin’s decision will be little more than a historical footnote.
For now, though, it stands as a forceful argument for fairness. That’s not enough, but it’ll have to do until the country finally gets this right.