Dear Marriage Supporter,
Earlier this week, a federal district judge in Louisiana issued a key decision finding that the marriage amendment passed in 2004 by 78% of the voters of that state does not run afoul of the U.S. Constitution's guarantees of Equal Protection and Due Process. Accordingly, Judge Feldman ruled against the several plaintiffs' claims that the amendment is unconstitutional.
This is a major victory for marriage that should be celebrated.
Of course, if you've been depending on the major media outlets for your news, you'll have found precious little attention paid to this pivotal decision. The media has chosen instead to focus on a very poorly reasoned decision by a three-judge panel of the 7th Circuit U.S. Court of Appeals that was basically lifted from the template of so many such rulings since the Windsor decision in 2012.
In the 7th Circuit case, Judge Richard Posner crafted one of the most ideologically-driven and personally invested rulings I've ever read from a federal justice—and that's saying something!
Garrett Epps, writing for The Atlantic, put the matter quite colorfully—and accurately—in his article contrasting the decision with the Louisiana case [emphasis added]:
Posner finds the states' justifications so irrational that he almost becomes unhinged himself.
It is a roaring steam engine of an opinion, at times exhilarating and at other times puzzling. Is it likely to change minds? No. Its flip dismissal of the political process argument makes it less persuasive than it could have been....
In contrast to this decision, Judge Martin Feldman of Louisiana crafted a lucid and careful legal argument for why the State of Louisiana not only has a rational basis for regulating marriage by defining it as the union of one man and one woman, but also in doing so is acting precisely the way that Justice Kennedy in Windsor said States can and should act!
In his analysis of Feldman's decision for The Daily Signal, Ryan Anderson explains:
Feldman ruled that, consistent with the U.S. Constitution, citizens and their elected officials should get to define marriage, and they can define it as the union of man and woman if they choose to.
Feldman cites the Supreme Court's decision in the federal Defense of Marriage Act (DOMA) case, U.S. v. Windsor, as support that Louisiana has the right to define marriage for itself. Feldman writes: "Windsor repeatedly and emphatically reaffirmed the longstanding principle that the authority to regulate the subject of domestic relations belongs to the states, subject to indistinct future constitutional guarantees that in Windsor were, by its expressed limits, left open and rather inexact."
Feldman's decision is a far cry from Posner's, as the former looks carefully at the cases with binding precedent and reasons from the Constitution and rational analysis of facts; whereas the latter is a shameful display of animus and hostility toward anyone who dares agree with nearly all of human civilization throughout all of history and throughout most of the world today that there's something special about the conjugal union of husband and wife.
Indeed, the craziest moments of Posner's decision are not merely ludicrous and poorly reasoned, they're scandalously offensive.
For example, he insinuates that the people of Indiana and Wisconsin—whose marriage laws his decision strikes down—were acting against children's welfare by instantiating in law the ideal that kids have both a mother and a father!
But it gets even worse than that.
To take another—and perhaps the most egregious—example: We know that the tradition of marriage as the union of husband and wife is nearly universal to the human experience; it is a tradition honorably celebrated and sincerely believed in by nearly every religious tradition and philosophy, throughout history and in our own day. It constitutes a deeply held belief for literally billions of people worldwide.
Well, Posner compares that tradition to cannibalism and ritualistic suicide!
Mr. Epps says Judge Posner comes almost unhinged. I might question whether he's not underestimating things somewhat.
Marriage Supporter, you should be outraged, as I am, that the deeply held beliefs of millions of Americans like us can be subjected to such calumny by high-level judiciary official in our land. We should be disgusted to find the votes of millions of Americans to protect marriage and the interests of children in having a mom and a dad compared libelously to something as grotesque as cannibalism!
But, in light of this insidious attack, we should also be grateful and all the more thrilled for the cool-headed common sense of judges like Martin Feldman whose decision is like a breath of fresh air let into a dank and stale cellar.
The redefinition of marriage is not inevitable—not by a long shot.
Even a writer like Epps, who admits he is on the side of redefining marriage, admitted of Feldman's decision that it was clearly and closely based on Justice Kennedy's reasoning in Windsor.
Epps recognizes as much because it is hard not to do so—just as it is not hard to recognize, as Epps does, that Posner's decision by contrast is "puzzling," to use perhaps the politest applicable term.
When the Supreme Court considers this matter again—as they will certainly do—they won't miss what anyone can plainly see. They won't miss that decisions like Feldman's are based in a careful and discerning reading of the law, without a personal agenda to push or axe to grind; and that decisions like Posner's are ideological screeds frankly unworthy of the very institution of the Judiciary.
So, take heart. And read the wonderful and victorious decision from Louisiana. It will be a wonderful resource and encouragement to you as, with us at NOM and with so many of your fellow citizens, you continue to stand up bravely and speak out boldly about what marriage is and why marriage matters!
Brian S. Brown
This message has been authorized and paid for by the National Organization for Marriage, 2029 K Street NW, Suite 300, Washington, DC 20006, Brian Brown, President. This message has not been authorized or approved by any candidate.