By David Tulis

The argument for marriage comprises odd elements often claimed by those making revolution against it.

➤ Marriage favors diversity, because man and woman are diverse, whereas gay theory rejects complementarity for a dull sameness of partner.

➤ The marriage side favors history — marriage is part of culture worldwide from the beginning of recorded time (Adam and Eve, for starters), whereas LGBT notions are excitably novel.

➤ Marriage is democratic and popular, whereas gay lobbies are screaming from courthouse steps demanding the black robes in Washington impose a single — and new — definition.

➤ Marriage has a rational basis, though self-styled homosexuals persuade judges that it is irrational and hateful — not to be tolerated another decade.

U.S. district court judge Martin Feldman’s opinion in Louisiana for marriage is a primer in the conflict for marriage. In a case brought by angry gays, Judge Feldman backs in a summary judgment the defending state in its claim that marriage law describing it as a union of one man and one woman is reasonable, good for society and good for its participants. In quoting the decision, I add italics and omit citations.

The family and its life

Marriage is real, gay theory is feeling. “This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition. The defendants maintain that marriage is a legitimate concern of state law and policy. That it may be rightly regulated because of what for  centuries has been understood to be its role. Not so say plaintiffs, who vigorously submit if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so, and their choice should be recognized by law as a marriage; never mind the historic authority of the state or the democratic process.”

Judge Feldman accounts for the human family, into the bosom of which children are reared, referring to Louisiana’s “legitimate interest in linking children with intact families formed by their biological parents.”

So, is there even any rational basis for Louisiana’s resistance to recognize same-sex marriages entered into in other states, or to authorize same-sex marriages in Louisiana? Plaintiffs contend not, and conclude that Louisiana’s laws and Constitution can only be supported by a hateful animus. Defendants rejoin that the laws serve a central state interest of linking children to an intact family formed by their biological parents. Of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus. This Court agrees.

Decentralized political order defended

Judge Feldman relies on the high court’s decision in 2013 to overturn the Defense of Marriage Act provisions that let the federal government pinch states into a its definition of marriage. That act held marriage as it should be, between one man and one woman. But that provision was thrown out because New York had decreed that two men may marry, and since marriage has always been a state prerogative, the justices ruled DOMA an unconstitutional infringement on states’ lawful authority in a federated system of multi-level governments.

The Windsor opinion is one that “does little more than give both sides in this case something to hope for,” Judge Feldman says. “Observing ‘DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage,’ the Court inferred that Congress had acted with a discriminatory purpose” (italics mine). Judge Feldman worries that the Windsor case, to his court’s “unease *** merely offers bits and pieces of hope to both sides.” Though the pro-marriage dissenters in Windsor scoffed at the seven pages of states’ rights talk in the ruling, Judge Feldman views this material as important, quoting it extensively and explaining states’ rights, as they are commonly called.

The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce…[and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.

Liberal Justice Kennedy is quoted as instructing his readers that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for ‘when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.’ *** Marriage laws vary in some respects from State to State.’ In his dissent in Windsor, Judge Roberts says the ruling leaves unchanged ‘the concerns for state diversity and sovereignty.’”

The judiciary must have an “emphatic trust in deference for free and open debate in a democracy,” Judge Feldman says. “It seems to me that the sweeping judicial action undertaken today reflects a basic lack of faith and confidence in the democratic process.”

Some states have gone for gay marriage, have “chosen differently,” but that doesn’t “mandate that Louisiana has overstepped its sovereign authority,” he explains.

Poofter theory vs. democratic processes

Gay theory is a novelty. It should be viewed warily by courts and states, he warns. He says the language in Windsor is “an amorphous but alluring ‘evolving understanding of the meaning of equality.’” Judge Feldman rejects a higher standard of review sought by gay petitioners and intends to be “more circumspect. In light of still-binding precedent, this Court declines to fashion a new suspect class. To do so would distort precedent and demean the democratic process.”

He warns against judges’ caught up in the excitement of gay political gains and theory of yielding to the “temptation to read personal preference into the Constitution [which] is understandably great …. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court giving effect to its own notions of what is wise or politic.”

Gays and the majority in Windsor say a defense of marriage is a hatred; not so, Judge Feldman says. “The Court also hesitates with the notion that this state’s choice could only be inspired by hate and intolerance. Louisiana unquestionably respected ‘a statewide deliberative process that allowed its citizens to discuss and weigh arguments for and against same-sex marriage.’ *** All sides for and against grappled with this solemn issue. The Court declines to assign an illicit motive on the basis of this record, as have also two federal appellate judges as well.”

Gays are unable to establish they are being deprived of substantive due process because they do not prove a fundamental right in their exclusion from marriage. “To establish a substantive due process violation, the aggrieved person must describe the infringed right with particularity and must establish it as ‘deeply rooted in this Nation’s history and tradition.’ *** No authority dictates, and plaintiffs do not contend, that same-sex marriage is anchored to history or tradition. The concept of same-sex marriage is ‘a new perspective, a new insight,’ nonexistent and even inconceivable until very recently. *** Many states have democratically chosen to recognize same-sex marriage. But until recent years, it had no place at all in this nation’s history and tradition. Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental. *** There is simply no fundamental right, historically or traditionally, to same-sex marriage.”

Marriage, finally, is rational

Judge Feldman’s review of the gay conflict is helpful because he describes a system of ordered liberty and decentralized political authority that recognizes at least the vestiges of the interests of the American people in one of their principal cultural, religious and economic institutions.

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