A ruling out of a federal court in Louisiana Wednesday will not please the amateur commentariate that has taken The Right Stuff to abundant task for aligning with the tactical position established by Florida Attorney General Pam Bondi regarding same-sex marriage.
Bondi, you may recall, recently wrote to the state’s appellate courts urging a postponement of further litigation until the U.S. Supreme Court has its say, which she argues is almost certain to happen no later than the June 2015 conclusion of its next term. The ripening of the issue does seem upon us, similar state bans having been overturned in Oklahoma, Virginia and Utah, accompanied by stays issued by SCOTUS.
Woe to the rare pundit who says Bondi’s recommendation makes sense, even though it does, and even if the Third District Court of Appeal — champing at the opportunity Make Meaningless News — thinks otherwise. If things move along and the Florida Supreme Court strikes down the ban by next spring, it’s likely its decision also would be stayed awaiting SCOTUS’s final word. In Bondi’s view, any additional wrestling amounts to nothing but a high-priced moot court adventure.
That’s not how opponents of the ban see it, of course. Almost certainly, they regard each addition to the growing pile of lower-court triumphs not merely as a confidence-building confirmation of each state ban’s unconstitutionality, but as one more pelt to be paraded before SCOTUS in hopes of influencing a swingable, practical justice. If 20 or 30 state supreme courts have overturned their bans already, including a big one such as Florida, isn’t that federalism at work? (Not really, but never mind.) You might even snag Scalia.
This isn’t what gay marriage activists say, naturally. Instead, they say the die is cast, that the losing streak that extended into circuits from Key West to Tallahassee is evidence of the futility of fighting on and Bondi — never mind that oath of office thing — ought to capitulate. Why, it’s a wonder how such an obviously flawed referendum qualified for the ballot in the first place.
That was then. This is now, in the aftermath of U.S. District Judge Martin Feldman upholding Louisiana’s same-sex marriage ban, remarkably like Florida’s, writing forcefully his court would not join others that, in a “pageant of empathy,” “appear to have assumed the mantle of a legislative body.”
Feldman concedes that gay marriage pits groups with impassioned and sincerely held views against each other, but, unlike his brother and sister judges, he takes seriously the instruction from United States v. Windsor, which, while overturning the federal Defense of Marriage Act, made absolutely clear the states’ authority to define marriage. As Justice Kennedy instructs:
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.”
That’s what SCOTUS found unacceptable about DOMA: It assumed a federal jurisdiction over what always had been the states’ bailiwick.
Feldman also rejected the popular notion that state bans discriminate against an identifiable class protected by the 14th Amendment.
But even apart from Windsor, plaintiffs seek to justify the application of heightened scrutiny because, they argue, Louisiana’s laws and Constitution discriminate based on sexual orientation. They fail, however, to recognize that neither the Supreme Court nor the Fifth Circuit has ever before defined sexual orientation as a protected class, despite opportunities to do so. ... Admittedly, other federal courts throughout the country have spoken as if they were deciding the issue by discovering, at best, unclear case models on the more demanding standard of review. Or, in the name of rational basis ... they have at times applied the more exacting review standards.
This Court would be more circumspect. In light of still-binding precedent, this Court declines to fashion a new suspect class. To do so would distort precedent and demean the democratic process.
Feldman has ruled, with thoughtfulness and clarity — absent the defining of a new protected class by judges from a pay grade higher than his — what always has been the responsibility of state legislatures or the people within each state, should remain their responsibility.
Here, in all likelihood, is where folks who want Bondi to stand down dismiss Feldman as “a Reagan appointee,” code for “knuckle-dragging Neanderthal.” Never mind their silence on favorable rulings from judges appointed by Democratic presidents, a fact that disqualifies their who’s-beholden-to-whom sniveling.
Anyway, back to Bondi and Yogi Berra’s axiom about when it’s over. Feldman’s by-the-book decision might well turn out to be an outlier (although a Tennessee state judge ruled identically last month), or it might signal a rally among defenders of traditional marriage. The reality is, until the U.S. Supreme Court decides — It can’t possibly duck again this year, can it? — Florida’s definition, duly enshrined by a super-majority that was at the same time giving the state’s electoral votes to Barack Obama, demands the attorney general’s active support.