A man holds a gay pride flag in front of the Supreme Court on Wednesday (June 26, 2013) after the court decided to strike down the Defense of Marriage Act.  RNS photo by Adelle M. Banks

A man holds a gay pride flag in front of the Supreme Court on Wednesday (June 26, 2013) after the court decided to strike down the Defense of Marriage Act. RNS photo by Adelle M. Banks

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(RNS) The legal winning streak for same-sex marriage is over.

A federal judge in Louisiana upheld that state’s prohibition on gay marriage Wednesday (Sept. 3) and belittled a string of 20-plus federal court decisions striking down state bans as “a pageant of empathy.”

It was the first time since the Supreme Court ruled against the federal Defense of Marriage Act in June 2013 that a federal court refused to throw out a state’s ban on gay and lesbian marriages.

A promised appeal, like Texas’ appeal of a district judge’s ruling in favor of gay marriage there, now goes to the U.S. Court of Appeals for the 5th Circuit, perhaps the nation’s most conservative appellate court.

The ruling came from District Judge Martin Feldman, 80, who was named to the federal bench by President Ronald Reagan more than 30 years ago. Feldman echoed the two judges — both in their 70s and appointed by President George H.W. Bush — who dissented from recent rulings against Utah, Oklahoma and Virginia gay marriage bans in the 10th and 4th Circuits.

Same-sex marriage was “nonexistent and even inconceivable until very recently,” Feldman said in his 32-page ruling. For that reason, he said, it is not a fundamental right that states must uphold despite constitutional or legislative bans.

“The court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational,” Feldman said.

Nineteen states and the District of Columbia now permit same-sex marriage, while 31 states continue to ban it. The Supreme Court could decide this fall to hear one or more cases being appealed from federal circuit courts in Denver and Richmond. That would virtually guarantee a national verdict by next June.

Since the justices ruled in U.S. v. Windsor that the federal government must recognize legal gay marriages and provide appropriate benefits, no federal judge had upheld a statewide ban. Feldman not only did so — he cited both Windsor and the flurry of federal rulings that have followed for helping to make his case:

  • The Windsor decision, written by Justice Anthony Kennedy, “references an amorphous but alluring ‘evolving understanding of the meaning of equality,'” Feldman said. Nevertheless, he noted, it upheld states’ rights to regulate marriage.
  • “This court has arduously studied the volley of nationally orchestrated court rulings” against democratically approved gay marriage bans, he said. “The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.”

Feldman rejected arguments that states cannot determine their own marriage laws; that bans are reflective of discrimination against gays and lesbians; and that issues of procreation and parenting are not relevant.

“Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents,” he said.

If states can’t do that, Feldman said, they may not be able to prohibit marriage among minors, groups of people or members of the same family. After all, he said, “all such unions would undeniably be equally committed to love and caring for one another.”

(Richard Wolf writes for USA Today.)




  1. This is why there is an appeals process. :)

    The reasoning for upholding the ban is nonsense which won’t survive an appeal or even the most reasonable form of scrutiny.

    1. The procreation argument is junk because the marriage is not for the purposes of procreation, nor is biological procreation the sole form of legally recognized children to a family.

    2. The judge also failed to take into account that bans in marriage have to have legitimate secular and rational reasons. Polygamy, incest and age of consent bans all have such. None was proffered against gay marriage.

    3. The ban is clearly discriminatory in nature borne of animus against gay couples.

    4. Tradition is not cause for maintaining a law unless there are compelling reasons inherent to the law.

    5. Judge Feldman completely ignores any of the 14th Amendment, Equal Protection arguments as just “sympathy” without bothering to distinguish why he should rule otherwise. All discriminatory laws are passed by a democratic majority. The 14th Amendment takes away any right states have to pass laws which violate civil liberties.

    If it goes to SCOTUS, marriage equality will happen nationwide. You have at least 5 justices who will find for it. Kennedy, Mr. Swing vote, wrote most of the decisions which are being relied upon for support of gay marriage.

  2. It is good to see a judge standing up for his two faiths (Jew and Catholic) and saying NO! to the Lavender Mafia. At this point he and his family will need federal protection because the Lavender Mafia and the Athiest MIlitants are going to go after them.

    • Bringing us ever closet to a nationwide equal protection ruling ending all bans on gay marriage. If it goes to SCOTUS, you guys will lose.

      The legal arguments for the bans are crap. You guys got nothing but Bible thumping and spurious nonsense to support yourselves.

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