Just as I mention how GLBTQ individuals need to know their rights, we have two important court decisions come out regarding the fight for marriage equality.
Here’s what you need to know:
Louisiana Federal Judge Hands Marriage Equality its First Loss Since Windsor
First, on Wednesday, Judge Martin Feldman, a New Orleans based federal judge, upheld Louisiana’s ban on same-sex marriage. This decision was the first defeat for marriage equality since the Windsor ruling.
In his ruling, Feldman held that the analysis for equal protection didn’t require a heightened level of scrutiny. He uses the Supreme Court’s silence on the level of scrutiny in Windsor as the basis for his decision.
Because heightened scrutiny doesn’t exist, the state need only have a rational basis for its laws banning same-sex marriage. Feldman claims the rational basis could be 1) linking children to an intact family formed by their biological parents, or 2) the court safeguarding that fundamental social change is better cultivated through a democratic consensus.
The rationale seems like a stretch, especially considering marriages aren’t now regulated in order to keep biological families together. But, to me, the most disappointing fact is that Feldman uses Windsor as the basis for a decision against marriage equality, when it’s really the foundational case for gay-marriage rights.
7th Circuit Court of Appeals Strikes Wisconsin and Indiana’s Marriage Bans
Luckily, less than a day later, the U.S. 7th Circuit court of Appeals, which is the appeals court for much of the Midwest, upheld the rulings striking down Wisconsin’s and Indiana’s same-sex marriage bans. You may remember, because of the structure of the federal courts, this decision has much more impact than the district court opinion in Louisiana.
The 7th Circuit is the thirds appeals court, to make this kind of ruling, following the 10th and the 4th circuits. The court held unanimously that no matter what the type of scrutiny, these bans don’t hold up. Judge Richard Posner who wrote the opinion, stated: "The only rationale that the states put forward with any conviction is … so full of holes that it cannot be taken seriously.“
In addition, he picks apart why the arguments that these marriage bans protect child hold no weight. Posner’s opinion was as pointed as his oral argument questions. If you haven’t heard that yet, you have to check it out.
Supreme Court, here we come!
So while the Louisiana decision is disappointing, it seems like the train is still moving full steam ahead. And now that there is a dissenting opinion on the books, it seems almost inevitable that the Supreme Court will take up the issue and make a decision to settle the issue.