Sunday, September 14, 2014

174.3 - Not Good News: the string is broken

Not Good News: the string is broken

And, unfortunately, we also have some not good news on this same front.

The unbroken string of more than 20 straight victories in federal court on marriage justice has come to an end. We knew it would come eventually; we can't expect to win every single decision. But still it's a disappointment when it happens, even if it's not unexpected.

It came in the case of Louisiana, where U.S. District Court Judge Martin Feldman declared that no “fundamental right” was at stake and the state needed only to show a legitimate reason for barring same-sex couples from marrying - which, he declared, the state did, that "legitimate reason" being, quoting him, "linking children to an intact family formed by their two biological parents." By which logic, as I just noted a minute or two ago, divorce and adoption should both be banned.

His only other argument is the classic slippery-slope one that allowing for same-sex marriage would of necessity mean allowing for parents to marry their children and brothers to marry each other and so on. As Richard Posner said, such an argument "cannot be taken seriously."

It really is a rather bizarre ruling and I expect that opponents of marriage justice who give any thought to it will not want this to be the case on which their argument rests.

Consider that after dealing with the technical legalities, that is, the background of the case and the requirements for a summary judgment, he starts his actual argument by referring to being gay or lesbian as a "lifestyle choice," placing him firmly among the scientific ignoramuses who still insist that people "choose" to be homosexual. Do me a favor: If you ever meet one of those folks, ask them when and why they "chose" to be straight.

He claimed that the fundamental right at issue was not marriage, but "same-sex" marriage, the idea of which, he went on, is too new to be a "fundamental" right. New? The legal battle in the US over same-sex marriage has been going on for 42 years and male-bonding ceremonies date to the 12th century or earlier. And of course the "right to marry" is the right at issue: If Feldman was considering a voting rights case, I doubt he would try to make this type of nonsensical differentiation between a "right to vote" and a "black right to vote."

His finding that Louisiana need only show a "legitimate reason" for its bigotry was based on a confusion between "strict scrutiny" and the somewhat lower "heightened scrutiny," two different standards of the level of justification a state must be able to offer for a law for a law to withstand a legal challenge.

And he completely and blatantly misstated what the Constitution says. In trying to dismiss a comparison to Loving v. Virginia, the famous Supreme Court case that struck down bans on interracial marriage, Feldman claims that was because the 14th Amendment "expressly condemns racial discrimination as a constitutional evil." But it doesn't. It makes no reference to race at all. It says all persons have the protections of due process and that no person can be denied the equal protection of the laws.

I've mentioned several times that it seems to me that each of the decisions in favor of marriage justice has some line, some bit of phrasing, that is notable for its insight if not its elegance. Somehow it seems fitting that the decision upholding what is the old, the outdated, the fearful, the bigoted, should lack any trace of either.

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