In a startling reversal of a nationwide trend, U.S. District Judge Martin Feldman upheld Louisiana’s gay marriage ban Wednesday, holding that it furthered the “central state interest” of “linking children to an intact family formed by their biological parents.” Feldman, a Reagan appointee, is not the first judge since 2013’s United States v. Windsor to uphold a gay marriage ban. He is, however, the first federal judge, a key distinction that gives his ruling significant clout.
The thrust of Feldman’s ruling rests on a misinterpretation of the so-called animus doctrine. According to the Supreme Court, laws motivated exclusively by anti-gay animus toward gay people violate the equal protection clause of the 14th Amendment. After the court struck down a federal gay marriage ban in Windsor, the vast majority of judges have concluded that all gay marriage bans are presumptively motivated by animus. That’s a logical conclusion, given the Windsor court’s assertion that the federal ban’s “principal purpose and necessary effect” was to “demean” and “degrade” gay people.
But as I’ve written before, the animus doctrine has a weak spot: It’s pretty easy for an eager judge to put a fig leaf over the hostility that motivates anti-gay laws. Feldman, for instance, is shocked that gays would even suggest such a motive, berating them for insisting that Louisiana’s ban “could only be inspired by hate and intolerance.” Rather, denying gay people the right to marry is a perfectly reasonable way “to achieve marriage’s historically preeminent purpose of linking children to their biological parents.” To insinuate that the law was passed to “vilify” gays, Feldman scoffs, is absurd and insulting.
Intriguingly, Feldman borrows his reading of the animus doctrine from Judge Jerome Holmes’ concurrence in Bishop v. Smith, the 10th Circuit’s gay marriage decision. Although Holmes held that gay marriage bans are unconstitutional, he wrote separately to note that he did not believe they were based in animus. His reading of animus doctrine was, in turn, borrowed almost wholesale from a seminal article by Susannah W. Pollvogt, a professor at Washburn University School of Law. I asked Pollvogt what she thought of Holmes’ take on her article.
“I disagree with much of what he says,” she told me.
And what about Feldman’s understanding of animus? Pollvogt described it as simply “wrong”:
Supreme Court precedent unequivocally establishes that to say a law is based in animus is not to say that the law's proponents were motivated by hate. Rather, much milder mindsets such as moral disapproval, private bias, fear or discomfort may constitute “animus” in a constitutional sense. It would be delusional to ignore that we are all affected by bias from time to time, and that those biases evolve and change as society evolves.
Feldman, then, has based his ruling on an opinion that draws directly from a law review article—and the author of that article describes both rulings as misguided and inaccurate.
Although Feldman’s complete misunderstanding of animus is somewhat irritating, it might actually be productive in the long run. If every single judge ruled in favor of equality, the issue might never have traveled back to the Supreme Court, leaving the core question of gay marriage rights in something of a legal limbo. But as more judges buck Windsor’s clear command of equality, the high court will almost certainly feel compelled to take another gay marriage case and settle the issue once and for all.