States Still Divided Over Same Sex Marriage

A New Orleans federal judge this week upheld Louisiana’s ban on same-sex marriage, becoming the first decision to buck what had become a unanimous trend of federal courts striking down such bans since the Supreme Court ruled on the matter last year. In his ruling, Federal District Court Judge Feldman also upheld Louisiana’s refusal to recognize same-sex marriages performed legally in other states.

The 32-page decision stated that Louisiana’s definition of marriage and the limitation on recognition of same-sex marriages “do not infringe the guarantees of the Equal Protection and Due Process

Clauses of the United States Constitution”, and rejected an argument that the ban violated the First Amendment by effectively forcing legally married gay couples to state that they are single on Louisiana income tax returns.

Judge Feldman concluded that the regulation of marriage was left up to the states, stating that “Louisiana’s laws and Constitution are directly related to achieving marriage’s historically preeminent purpose of linking children to their biological parents. Louisiana’s regime pays respect to the democratic process”.

Less than 24 hours later, the Seventh Circuit Court of Appeals in Chicago found exactly the opposite, citing children as a reason to uphold the invalidation of Indiana and Wisconsin’s bans on same sex marriage. Writing on behalf of a unanimous three-judge panel, Judge Posner found the bans unconstitutional and discriminatory. “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner writes. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

The 40-page decision also rejected the main argument in defense of the prohibition of same-sex marriages that heterosexual couples are encouraged by the government to get married so that there will less ‘accidental births’, and consequently less abandonment and foster care. “Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples,” writes Posner, “and those children would be better off both emotionally and economically if their adoptive parents were married.”

The two decisions, happening so close together and yet producing such opposite reasoning and effect, have sparked a joint demand from 32 states that the Supreme Court settle the issue of gay marriage once and for all. The briefs, filed yesterday, express the concerns of 15 states that allow gay marriage and 17 states that have banned the practice. For a full list of the states involved and the cases specifically addressed in the briefs, click here.