U.S. District Court Judge Martin Feldman threw a curveball Wednesday at the lawyers arguing both sides of a case over gay marriage in Louisiana, deciding he will rule not only on whether same-sex marriages performed in other states should be recognized in Louisiana, but also on whether gay and lesbian couples should be able to wed in the state.
Scores of similar lawsuits are working their way through courts across the country, some of them taking on the issue of recognizing existing marriages and others aiming more directly at the right to marry in a particular state.
The case before Feldman includes six couples, all of whom argue that Louisiana should recognize marriages performed elsewhere.
But at the end of 90 minutes of oral arguments in New Orleans, Feldman said he wanted to hear debate on all of the questions involved, saying it would be unfair to the public and the parties involved to issue a “piecemeal” ruling.
“I feel uncomfortable resolving some issues one way or the other and not all the issues one way or another,” Feldman said, asking for additional briefs within three weeks but putting off a decision about whether to hear more oral arguments.
The judge’s decision will likely mean a short delay in any ruling on the recognition issue, but it could greatly speed up a decision on whether same-sex couples can get a marriage licence in Louisiana. Under the court’s original instructions, now moot, lawyers for both sides were to argue over the recognition issue, allow the full appeals process to play out and only then take up the case of a gay couple who attempted to get a marriage license in New Orleans and got turned down.
Another outstanding issue before Feldman is whether Louisiana is violating the First Amendment’s guarantee of free speech by forcing married same-sex couples to list themselves as single on tax returns.
Instead of taking on each question separately, Feldman appears ready to issue one ruling on all of them, though he dropped no conclusive hints about which way he might be leaning.
Meanwhile on Wednesday, gay marriage proponents got their first victory in a federal appeals court, a development that could reverberate in Louisiana.
A panel of judges on the 10th U.S. Circuit Court of Appeals in Denver upheld the ruling of a Utah judge who struck down that state’s ban on same-sex marriage as unconstitutional.
That’s good news for gay marriage proponents in Louisiana because it means that even if they lose their case before Feldman and the 5th Circuit Court, the U.S. Supreme Court might be more likely to step in. The Supreme Court justices haven’t answered definitively whether same-sex couples have a constitutional right to marry, but a split decision between two circuit courts would put pressure on them to take up the issue.
Were the Supreme Court to finally make a direct ruling on gay marriage, it would mark the culmination of a debate that’s been seething in its current form since at least 1996, when President Bill Clinton signed the federal Defense of Marriage Act into law with bipartisan support.
Louisiana voters approved a ban on same-sex marriage by a voter referendum in 2004, and both sides have acknowledged momentous implications if it gets struck down.
“You know, I didn’t expect to get emotional,” said plaintiff Jackie Brettner, adding, “Walking here today, it hit me just how important it is, not just as a parent, which, of course, is essential to my participation, but as a human being.”
As expected, the arguments before Feldman on Wednesday turned on competing interpretations of a previous Supreme Court case, United States v. Windsor. In that case, the justices decided the federal government must extend marriage benefits to same-sex couples who got married in states where those unions are legal.
In a packed courtroom, lawyers on both sides of the Louisiana case argued that the Supreme Court got the decision right in Windsor, but for different reasons.
Kyle Duncan, hired by Attorney General Buddy Caldwell to defend the state’s ban on gay marriage, said the justices had simply deferred to a historic right of the states to define marriage.
In knocking down a portion of the federal Defense of Marriage Act that barred legally married couples from getting federal benefits, Duncan argued, the justices were checking federal overreach, not ordering all the states to define marriage in one way or another.
“That’s why we have 50 states,” Duncan said.
James Dalton Courson, representing the plaintiffs, argued that the Windsor decision turned on the 14th Amendment’s guarantee of equal protection under the law. In other words, if the federal government can’t decide that one legal marriage is “less worthy” than another, as Justice Anthony Kennedy put it in his majority opinion, then neither can Louisiana.
The only apparent reason for the state’s ban on same-sex marriage, Courson said, was a desire to “harm a politically unpopular group.”
For his part, Feldman acknowledged at the outset the gravity of the case and the emotions surrounding it, as well as the intense speculation about how he might rule — even chiding the media for often pointing out his friendship with conservative Justice Antonin Scalia.
At one point, he mentioned that he also mentored Justice Sonia Sotomayor of the court’s liberal wing, adding, “Most people tend to forget that.”
Feldman said explicitly toward the end of the hearing that he hadn’t made up his mind about the issues, and he directed probing questions to both sides, but Courson, the plaintiffs’ attorney, did seem to receive a more skeptical hearing.
He was interrupted frequently by the judge and occasionally seemed flustered and tongue-tied. At one point, Feldman asked him, “You want that whiskey now?”
Perhaps tellingly, Feldman asked repeatedly why, if Louisiana had to allow two men or two women to marry, the state did not also have to allow the marriage of first cousins, or a father-daughter couple, or an aunt and a niece.
Courson responded that Louisiana could certainly find fault with those marriages based on some kind of harm that would result, while the state has offered no compelling reason why same-sex marriages would hurt anyone.
Feldman also explicitly ruled out one line of reasoning that helped strike down the same-sex marriage ban recently in Virginia, stemming from the famous civil rights case Loving v. Virginia, which did away with prohibitions on interracial marriage in 1967.
“Loving won’t do you any good,” Feldman said, pointing out that the Constitution explicitly forbids laws that discriminate based on race but extends no specific protection for gays or lesbians.
Still, the judge also interrogated Duncan, pointing out that most, if not all, of the federal judges hearing similar cases in other states have decided in favor of the plaintiffs. “They’re good judges,” Feldman said. “I mentored one of them.”
Also echoing the plaintiffs, Feldman asked why the state can avoid recognizing a same-sex marriage from New York when the federal government can’t. “Why is the state of Louisiana able to do what the federal government is prohibited from doing?” he asked.
Finally, he quoted Scalia, who warned that Kennedy’s Windsor opinion would open the doors to just the kind of legal challenge that’s now popping up in every state. “Scalia thought Windsor offered a little bit to everybody,” Feldman said.
Duncan would not budge in response, reiterating that whatever else Kennedy’s decision said, it put the responsibility of defining marriage in one state or another squarely with voters.
Of the rulings from other federal judges, he said simply, “I find it remarkable. I cannot explain it.”