Gay Marriage Rulings Make Waves in Federal Courts

Three significant movements in the battle for the legalization of gay marriage made waves in the federal judiciary this week, highlighted by a rare victory for opponents of same-sex unions.  With gay marriage cases sweeping through federal courts, this week’s developments add to the mounting pressure on the Supreme Court to settle the matter once and for all in its next session.

Louisiana Same-Sex Marriage Ban Upheld

Gay marriage litigation took an unusual turn earlier this week when a U.S. district court judge upheld Louisiana’s ban on same-sex unions.  The opinion broke ranks from a string of federal rulings that found laws against gay marriage to be unconstitutional under a variety of legal theories, and by doing so gave hope to gay marriage opponents that bans on the practice have legal support amongst federal judges.  Judge Martin Feldman acknowledged that his decision stood against the tide of recent opinions, but argued that his colleagues “exemplify a pageant of empathy” without offering convincing legal arguments against gay marriage bans.

Judge Feldman, appointed by President Reagan, determined that Louisiana’s constitutional ban, supported by 78% of voters in a 2004 referendum, was grounded in sufficient reasoning to satisfy federal constitutional requirements.  Writing, “This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents,” Judge Feldman determined that Louisiana’s reasons to ban gay marriage reflected concerns of lawmakers and residents, and were therefore legally supported.

Going further, Judge Feldman wrote that the movement in favor of gay marriage faces “inconvenient questions,” and echoed a slipper-slope argument that same-sex marriage opponents have long argued.  Writing that support for gay marriage could naturally lead to marriages between family members and unions involving more than two people, Judge Feldman expressed concern that the growing support for same-sex marriage opens a Pandora’s box of traditionally disallowed marriage practices.  Although gay marriage opponents touted Judge Feldman’s ruling as sign of a change in the winds, the Seventh Circuit Court of Appeals halted the momentum only days later by striking down gay marriage bans in Indian and Wisconsin.

Seventh Circuit Strikes Indiana and Wisconsin Gay Marriage Bans

Gay marriage opponents encouraged by Judge Feldman’s support for Louisiana’s ban enjoyed a short-lived victory as the 7th Circuit Court of Appeals issued a stern dismissal of bans on same-sex unions in both Indiana and Wisconsin.  Judge Richard Posner, one of the federal judiciary’s most powerful figures, wrote a scathing 40-page opinion that found Indiana and Wisconsin’s gay marriage prohibitions to be unconstitutional as they were both irrational and motivated by discriminatory animus.  Although Posner and the 7th Circuit declined to say gay marriage is a fundamental right, the court nevertheless found the prohibitory laws unconstitutional on grounds that they violated the Equal Protection Clause.

An Equal Protection Clause argument finds gay marriage bans unconstitutional because they discriminate on the basis of sexual orientation, which, according to the 7th Circuit, deserve heightened judicial scrutiny.  The approach has been used by the 9th Circuit to dismiss gay marriage prohibitions, and is based on the argument that sexual orientation is an innate characteristic that has been historically discriminated against.  By placing sexual orientation in the same class as gender, the 7th Circuit requires states to produce a compelling interest to advance a ban on same-sex unions – a standard both Indiana and Wisconsin failed to do.

Judge Posner excoriated the states’ argument that gay marriage must be banned to establish a strong position on the sanctity of marriage, which in turn would discourage irresponsible behavior by heterosexual couples.  With attorneys from both states failing to provide a strong connection between gay marriage and harm to the institution of marriage as a whole, Judge Posner dismantled the weak assertion that allowing gay marriage would broadly encourage irresponsible sexual behavior and found that neither state had a compelling reason to ban same-sex unions.  With no evidence that gay marriage produces a societal harm, Posner and the 7th Circuit denounced what the opinion called animus driven laws and joined a majority of federal courts in rejecting a discriminatory approach to homosexuality.

States Request Supreme Court Ruling on Gay Marriage

 While the 7th Circuit was overturning gay marriage bans, 32 states issued a formal request to the Supreme Court to settle the matter once and for all when the judges return later this year.  Same-sex marriage is legal in 19 states, and bans on the practice have been overturned in several others, making the issue a matter of sharp divide across the country.  Both liberal and conservative states joined the request, asking SCOTUS to clear up the “morass” of gay marriage litigation and offer a firm opinion on the issue that has become the center of attention in the federal judiciary.  With pressure mounting from circuit courts and a majority of the states, it is likely the Supreme Court will take on the landmark decision in the near future.

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