The judge, Martin Feldman, is a Reagan appointee. (Then again, so is Kennedy.) Ed e-mails to note that he’s the same judge who held the Obama administration in contempt a few years ago for its moratorium on permits for deep-water oil drilling. His opinion is here. It’s a mix of deference to federalism, judicial modesty absent guiding precedent, and warnings of a slippery slope. Key bit from the end:
On the law itself, he declines to declare that gays are a “suspect class” under the Equal Protection Clause — that’s a job for the Supremes, says Feldman — which means that laws targeting them are owed no special scrutiny by the courts. In that case, all Louisiana needs to do is show that its gay-marriage ban is rationally related to some legitimate state interest. In most SSM cases since Windsor was decided, this is where the state’s case breaks down. Courts have repeatedly found that gay-marriage bans, which are supposed to foster procreation and encourage child-rearing by parents of different genders, have no rational basis because marriage isn’t reserved for straights who are willing and able to have kids. Feldman breaks from the pack:
It’s a matter of deference, in other words. Just because Louisiana allows some exceptions for infertile straight couples to its overall scheme of using marriage to encourage procreation and child-rearing doesn’t mean the court’s going to force it to make other exceptions. If a judge isn’t dealing with a “suspect class” then he owes the state’s legislature every benefit of the doubt.
As for the other perennial argument in SSM cases, that bans deny gays their fundamental right to marry under the Due Process Clause, Feldman knocks that down by disputing the definition of the term. The right to marry is deeply ingrained in the country’s law and history and is therefore fundamental, he says; the right to marry someone of the same-sex, specifically, isn’t. How broadly you imagine the scope of the right determines whether you agree. No telling how Anthony Kennedy will come down on that, but re-read some of the key passages in Windsor for a clue. One of the core points in Kennedy’s prior landmark opinions in gay-rights cases, especially the case striking down sodomy laws, is that gays are entitled to the same constitutional protections for intimate behavior that straights are. It would be odd if he followed that up by reading the right to marriage the way Feldman does, as a right inherently limited to people of different genders. And it’s not just RINOs who think so: Scalia, dissenting in the Windsor case, laughed at Kennedy’s opinion for being a transparent precursor to eventually finding that the Due Process Clause grants citizens the right to marry another person, not a right to marry only a person of the other gender. I think Feldman’s destined to be overturned, but this is a hopeful note at least for opponents of SSM.