Constitutional Law, Federal Judges, Gay, Gay Marriage, Politics

Fast Progress, Fundamental Rights: How Much Do Changing Attitudes On Same-Sex Marriage Matter?

This week, a Louisiana court became the first federal district court to uphold a state ban on same-sex marriage since the U.S. Supreme Court’s decision in U.S. v. Windsor. Judge Martin Feldman of the Eastern District of Louisiana granted the state’s motion for summary judgment in Robicheaux v. Caldwell. Finding that the claims of same-sex couples did not implicate a fundamental right triggering heightened scrutiny of the state law, he applied rational basis review to the challenge. Judge Feldman rejected arguments that sexual orientation warrants intermediate or heightened scrutiny based on the Supreme Court’s ruling in Windsor, as well as Equal Protection arguments against the Louisiana ban based on sex discrimination.

“Many states have democratically chosen to recognize same-sex marriage,” he writes. “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.”

American attitudes about LGBT people have changed. The fight for same-sex marriage has come far, fast. African Americans, women, disabled people, and members of other disenfranchised groups should envy the speed with which the LGBT community has achieved so much success. Not only have laws changed, but popular moral sensibilities have changed as well. In 2008, opposing marriage equality would put you in the company of most California voters. In 2014, expressing moral opposition to homosexuality can get you in big trouble. You can even face retroactive stigma — Brendan Eich, the former CEO of Mozilla who was ousted in 2014 because of his support of California’s Prop 8 in 2008, can attest to that.

Earlier this week, I visited a colleague’s Con Law class to discuss the U.S. Supreme Court’s decisions in U.S. v. Windsor and Hollingsworth v. Perry. Hollingsworth was originally a challenge to the constitutionality of an amendment to the California constitution defining marriage as between one man and one woman. A majority of California voters had endorsed Proposition 8, a ballot initiative creating this express limit on who could properly call themselves “married” under state law. California offered civil unions then, extending a variety of rights and privileges to same-sex couples who wished to publicly declare their loving commitment — and legal and financial obligation — to their partners. But a majority of California voters wanted to retain a distinction between civil unions and traditional marriage. When lawmakers refused to act, a grass-roots effort led to the collection of 1,120,801 signatures necessary to put Prop 8 on the November 2008 ballot, and 7,001,084 voters voted “yes.” Prop 8’s passage amended the California constitution. Predictably, two same-sex couples challenged the amendment in federal court, arguing that the new law denied them equal protection under the law.

Of course, we don’t teach Hollingsworth in Con Law in the Equal Protection part of the course. We teach it as a case about Article III standing. After the U.S. Supreme Court had its say, Hollingsworth stood for the proposition that organizers of ballot initiatives lack standing to appeal adverse federal court rulings when the state refuses to do so. While this issue may appear bland, I still think it’s an important (and infuriating) case. I’ve written about why I think that Hollingsworth does violence to the democratic process by gutting the referendum alternative to traditional law-making. My spastic gesticulations while teaching it show that I’m still sore about what Hollingsworth did to the Court’s standing doctrine. Whether or not I’m right that the Court sacrificed standing in order to artfully avoid answering the merits question of equal protection for same-sex couples, what we certainly did not get out of Hollingsworth was a ruling on gay rights.

Discussing the factual background of the case with law students felt surreal in some moments. If you were a young law student who had not briefed Hollingsworth for class, would you guess the right facts? Would you guess that notoriously liberal California, of all states, would pass a law protecting traditional heterosexual marriage? That the law was not enacted by the fiat of a rogue ultra-conservative politician but rather through the direct vote of California citizens? Would you guess this when you glanced at the citation showing that Hollingsworth was decided in 2013? Six years ago, when California voters passed Prop 8, some of the students were not old enough to vote. Many of them may not have followed the issue closely at the time. Many of them may not recall that, for example, President Obama opposed same-sex marriage when Prop 8 was passed. I recognized that many students may approach a case with very different assumptions. If the guesses of unprepared students are likely to be wrong, it’s worth emphasizing the facts while teaching. I was struck that, when discussing the history of same-sex marriage, I had to do that.

I’ve written before: “Personally, I’d vote for same-sex marriage if I lived in a state considering such laws. Polygamy too, for that matter. If you are listening for a full-throated defense of traditional, heterosexual marriage to the exclusion of state recognition of any other arrangement, you won’t hear it here. I’m inclined to support religious understandings of traditional marriage, but I’m libertarian enough to let everyone — straight, gay, or otherwise — suffer through the headaches of having the government divide your assets when you get divorced.” Nevertheless, I remain wary of using Equal Protection arguments to advance the cause. Signs point toward continued success via the democratic process. The risk of altering Equal Protection precedent in unanticipated, possibly harmful ways looms too large for me to support most of the current court challenges to same-sex marriage bans.

Judge Feldman’s decision this week slows the momentum of court rulings striking down same-sex marriage laws on Equal Protection grounds. While I can understand the disappointment many gay couples in Louisiana may feel in response to the ruling, and I do not know Martin Feldman’s personal views on homosexuality, I think that Judge Feldman ruled correctly here.

Our current cultural amnesia about how quickly and radically views on the status of same-sex couples have changed may signal progress in our attitudes toward the LGBT community. But it does not change the underlying fact that courts ought to move cautiously before enshrining new rights in constitutional law. Nor does it change the fact that same-sex marriage need not only become a reality through court challenges. Whether the Supreme Court ultimately agrees is uncertain. But what is certain is that Constitutional Law teachers six years from now will be teaching to students with still yet another set of assumptions about how reasonable people think same-sex couples should be treated.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at

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