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“Federalism Is Not Extinct”— Same-Sex Marriage Before The Supreme Court

The Supreme Court will be considering petitions for seven same-sex marriage cases at a private conference on September 29 to determine which (if any) of the cases will be reviewed by the Court when its term begins in October.  The cases under consideration are Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin). 

On September 3, breaking a streak of at least 21 federal court decisions over the past year overturning same-sex marriage bans, U.S. District Judge Martin C. Feldman upheld Louisiana’s same-sex marriage ban in Robicheaux v. Caldwell

Judge Feldman ruled that Louisiana’s same-sex marriage ban has a rational basis in that it serves Louisiana’s interest in “linking children to an intact family formed by their two biological parents.”  For a law to pass the “rational basis” test and be upheld in court, it must be proven that there is some reasonable relation between the law and the underlying purpose the state is trying to achieve (more strict requirements are reserved only for cases involving discrimination based on race, gender or religion).  Feldman asserted that the fact that there exists opposing viewpoints on this matter does not negate Louisiana’s purpose or render it irrational. 

All of the federal court decisions striking down same-sex marriage bans this year have cited United States v. Windsor, the June 2013 Supreme Court decision that struck down part of the federal Defense of Marriage Act (DOMA), which denied federal marriage benefits to same-sex couples legally married under a state law.  However, Judge Feldman’s ruling in Robicheaux also relies on Windsor, and presents an alternate interpretation of that Supreme Court decision.  Robicheaux is a reminder that, despite a recent chain of federal rulings invalidating same-sex marriage bans, there are valid arguments and Supreme Court precedent that support the constitutionality of state laws defining marriage as between one man and one woman.

The Supreme Court’s decision in Windsor overturned section 3 of DOMA, which defined marriage as between one man and one woman for the purpose of receiving federal marriage benefits (such as social security, insurance, immigration and tax filing marriage benefits). 

Judge Feldman’s opinion in Robicheaux reminds us of four essential things about Windsor:

(1) Windsor did not create a new fundamental right to same-sex marriage.

(2) Windsor did not elevate homosexuals to the legal status of a “suspect class” like race, gender and religion for purposes of determining discrimination under constitutional law.  Nor did it overturn the Supreme Court decision in Baker v. Nelson (1972), which declined to treat homosexuals as a suspect class and held that laws defining marriage as between one man and one woman do not violate the Equal Protection Clause, the Due Process Clause, and the right to privacy.  The Baker precedent remains binding after Windsor.

(3) Windsor did not rule on the constitutionality and validity of state laws that define marriage as between one man and one woman and prohibit recognition of out-of-state same-sex marriages.

(4) Windsor asserted that the States – not the federal government – have the “essential authority to define the marital relation.”  It ruled that principles of federalism require the federal government to yield to existing state laws that define marriage. 

Robicheaux held that Louisiana is acting within the proper scope of its authority to regulate marriage, and that the same-sex marriage ban was formed by the will of the People through the proper channels of the democratic process—the law was passed by a 78% vote at the ballot box.  Feldman stated that the definition of marriage is part of a vigorous cultural debate that “is better cultivated through democratic consensus,” not the courts.  Feldman wrote: “Federalism is not extinct.  Federalism remains a vibrant and essential component of our nation’s constitutional structure.”

Windsor uses language such as “worth of dignity” and “equal with all other marriages” to describe same-sex marriages, but only for states that have legalized same-sex marriageRobicheaux reminds us that Windsor did not use these terms to describe same-sex marriages in general and for all other states.  Similarly, Windsor states that DOMA has “no legitimate purpose” that allows the federal government “to disparage and to injure” persons whom state law seeks to protect.  These terms should not be taken out of context.  Windsor is not holding that all same-sex marriage bans have no legitimate purpose and that such bans are disparaging and injurious in themselves.  Rather, the Supreme Court held that DOMA has no legitimate purpose and injures homosexuals only in states that have legalized same-sex marriage because those states have decided through the democratic process to re-define marriage and to extend its protections and benefits to homosexual couples.  The Supreme Court stated: “This opinion and its holding are confined to those lawful marriages.” 

However, all of the federal cases that have struck state same-sex marriage bans over the past year have relied upon Windsor as the key authority, even if Windsor did not rule on the validity of such bans. The judges in those cases claim that Windsor supports invalidating same-sex marriage bans as unconstitutional in themselves, selectively quoting terms and phrases from the case (such as the aforementioned) despite the difference in context.  Judge Feldman, on the other hand, argues that the rationale of Windsor does just the opposite – that it supports the validity of state marriage laws which have passed through the proper channels of the democratic process. 

Justice Scalia warned about the improper use in future litigation of legally-loaded terms such as “personhood and dignity” and “no legitimate purpose,” which he argues were intentionally sprinkled into the Windsor opinion so that they can be quoted, and to “arm well” those who oppose same-sex marriage bans.  Scalia wrote, “The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows.  That is why the language is there.  The result will be judicial distortion of our society’s debate over marriage.”


Recent cases present conflicting interpretations of the Windsor ruling.  Although federal cases since Windsor have almost unanimously struck same-sex marriage cases, there remains a split in the federal courts on same-sex marriage bans.  As demonstrated by Judge Feldman’s ruling in Robicheaux, solid and legitimate arguments post-Windsor can be made in support of state laws defining marriage as between one man and one woman.  Nineteen states and the District of Columbia have legalized same-sex marriage.  That leaves 31 states which have not.  As the suits continue to mount, it is very likely that the Supreme Court will decide to hear at least one of the same-sex marriage cases.  Judge Feldman’s decision provides a sound basis upon which the Court could rely to uphold states’ bans on same-sex marriage.


The Supreme Court will soon be considering petitions for seven same-sex marriage cases to determine which (if any) of the cases it will review when its term begins in October. A recent ruling in a Louisiana case may give the Court a fresh perspective to consider…