Stephanie Grace: Turning point in gay marriage debate

Advocate staff photo by MATTHEW HINTON -- Sarah Jane Brady, left, with the Forum For Equality, Louisiana's lesbian, gay, bisexual and transgender (LGBT) human rights organization, smiles with  plaintiffs Jacqueline Brettner, Mary Griggs and Nick Van Sickles after their legal team made arguments in the case of Jonathan P. Robicheaux, et. al., v. James D. Caldwell, et. al., a case between same-sex married couples who live in Louisiana but were married in other states and the marriages are not recognized in Louisiana, at Federal Court in New Orleans, La., on Wednesday, June 25, 2014. Show caption
Advocate staff photo by MATTHEW HINTON -- Sarah Jane Brady, left, with the Forum For Equality, Louisiana's lesbian, gay, bisexual and transgender (LGBT) human rights organization, smiles with plaintiffs Jacqueline Brettner, Mary Griggs and Nick Van Sickles after their legal team made arguments in the case of Jonathan P. Robicheaux, et. al., v. James D. Caldwell, et. al., a case between same-sex married couples who live in Louisiana but were married in other states and the marriages are not recognized in Louisiana, at Federal Court in New Orleans, La., on Wednesday, June 25, 2014.

U.S. District Judge Martin Feldman, the first Louisiana judge asked to weigh in on the constitutionality of the state’s same-sex marriage ban, clearly gets how quickly events are moving. Presiding over Wednesday’s hearing on a topic he described as of “insatiable national interest,” Feldman announced his intent to try to keep up.

Rather than just decide whether the state should be forced to recognize marriages legally performed in other states — the original, somewhat limited scope of the hearing — Feldman said he’d take on the whole ball of wax. Explaining that he’s “uncomfortable resolving some issues one way or the other and not all the issues one way or another,” he said he’d also rule on whether same-sex weddings can happen here at home.

Yet even as Feldman dropped that bombshell on the packed New Orleans courtroom, events beyond conspired to suggest his decision, whatever it is, won’t be the last word for long.

During the course of the morning hearing, a federal judge in Indiana became the latest to declare a state marriage ban unconstitutional. More significantly, the 10th Circuit Court of Appeals upheld a Utah judge’s similar decision, becoming the first appeals court to decide such a case. (In an unusual occurrence these days, people inside the New Orleans courtroom only heard the news after because Feldman had ordered them to leave their cellphones outside).

While the Indiana decision continues a remarkable winning streak for same-sex marriage supporters — not one district judge has ruled the other way since the U.S. Supreme Court threw out the Defense of Marriage Act in the landmark Windsor decision a year ago — it’s the 10th Circuit ruling that has real ramifications for the Louisiana case.

Even if Feldman becomes the first district judge to rule the other way and is upheld by the notoriously conservative Fifth Circuit Court of Appeals — or if Feldman backs gay marriage but is overturned on appeal — the Supreme Court will have little choice but to decide the matter once and for all. Contradictory appeals court rulings can stand in some instances, but it’s hard to imagine the top court leaving a question of basic rights up in the air.

Not that it didn’t try. As Feldman pointed out, the Windsor ruling left lower courts with a puzzle.

“Is it fair to say Windsor offers a little something, a little hope for both sides?” he asked at one point.

On the one hand, it held that the feds cannot discriminate when it comes to providing spousal recognition and benefits. But it also said that states can make their own laws on marriage. If New York is able to decide through the democratic process that marriage between same-sex partners should be legal, Feldman asked, why can’t Louisiana decide through just as democratic a process — in this case, a constitutional amendment approved a decade ago by referendum — that it shouldn’t?

The counter argument, the one that judge after judge has bought, is that the U.S. Constitution mandates equal protection and due process, that there’s no compelling argument for denying rights to gay couples and that individual rights are not subject to majority whim.

Feldman, who was appointed by President Ronald Reagan, appeared perfectly aware that some handicappers have pegged him as the judge most likely to go with the states’ rights argument. He acknowledged that observers are trying to profile him, playfully grousing about chatter over his friendship with Supreme Court justice and conservative stalwart Antonin Scalia. When plaintiff’s attorney James Dalton Courson quoted the justice, Feldman interjected that he “was wondering how long” that would take. Later, he noted that he’d also mentored liberal Justice Sonia Sotomayor, “but most people seem to forget that.”

He also gave those handicappers at least a bit of ammunition when he rejected a popular line of reasoning for marriage supporters, that modern-day bans on same-sex unions are directly comparable to earlier bans on interracial marriages. While other decisions have relied upon the Loving case, which invalidated miscegenation laws, Feldman told Courson that “Loving won’t do you any good” because the Constitution explicitly forbids discrimination based on race but not sexual orientation.

Instead, he repeatedly returned to Justice Anthony Kennedy’s vague reference in the majority Windsor opinion to the “evolving understanding of the meaning of equality.”

Neither Kennedy nor anyone else could have predicted it when he wrote those words, but that understanding has evolved so quickly that the Windsor decision seems almost quaint.

Splitting the baby may have felt tenable a year ago, but not now. There are too many practical complications, things as basic as how to reconcile federal tax forms filed jointly with state forms that only allow such filings from opposite-sex spouses. Too many people across the country have signed on to the newer, more expansive and more humane “understanding of the meaning of equality.” And perhaps most importantly, thousands of couples have gotten married, and, for everyone else, life has gone on.

So Feldman may find the legal basis to declare gay marriage legal in Louisiana. He may not. But even if he doesn’t get on board, it’s obvious which way this train’s heading.

Stephanie Grace can be contacted at sgrace@theadvocate.com. Read her blog at http://blogs.theadvocate.com/gracenotes. Follow her on Twitter, @stephgracenola.