Federal Judge Mangles Precedent, Upholds Louisiana’s Gay Marriage Ban

Expanding the LGBTQ Conversation
Sept. 3 2014 3:16 PM

Federal Judge Mangles Precedent, Upholds Louisiana’s Gay Marriage Ban

Louisiana state flag.
Sometimes confidence is misplaced.

Photo byJiri Flogel/Shutterstock

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.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

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.

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.



Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Students Aren’t Going to College Football Games as Much Anymore

And schools are getting worried.

Two Damn Good, Very Different Movies About Soldiers Returning From War

The XX Factor

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Why a Sketch of Chelsea Manning Is Stirring Up Controversy

How Worried Should Poland, the Baltic States, and Georgia Be About a Russian Invasion?

  News & Politics
Sept. 20 2014 11:13 AM -30-
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 20 2014 3:21 PM “The More You Know (About Black People)” Uses Very Funny PSAs to Condemn Black Stereotypes
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.