Judge Martin Leach-Cross Feldman

In yesterday’s Washington Times, Tony Perkins of Family Research Council joined his good buddy, Rep. Steve Scalise (R-La), to laud federal district court judge Martin Feldman. According to Scalise and Perkins Judge Feldman’s ruling upholding Louisiana’s ban on same-sex marriage represented “A choice for the people, not judicial tyrants.” Feldman’s ruling was, after all, the first such opinion from a federal judge since the Supreme Court decided United States v. Windsor in 2013.

Perkins and Scalise go on to write:

The opinion is also significant for yet another reason — it underscores the deference the federal government ought to give to the people in the debate over what marriage is and who gets to decide. In 2004, when Louisiana voters were given the opportunity to define marriage, 78 percent of our state affirmed what Judge Feldman called “marriage’s historically pre-eminent purpose of linking children to their biological parents.” Marriage recognizes that mothers and fathers are both essential, and each have an irreplaceable role to play in raising their children.

We all know that the whims of the electorate are irrelevant to civil rights issues. Otherwise, Mississippi and other states would still be segregated. It was Feldman’s phrasing that troubled me when the decision first came down and again when I read the Washington Times piece;

… marriage’s historically pre-eminent purpose of linking children to their biological parents.

That is not marriage’s historically preeminent purpose. Historically, marriage has been about the transfer of property including the bride who ceased being the property of her father and became the property of her husband. Giving away the bride once had literal meaning. It’s still true. We marry in order to create a legal bond that precedes and enables the creation of a marital estate. We don’t need to marry in order to crank out kids. Romance aside, we marry to file joint returns or to ensure that our loved ones receive our pensions without tax penalty. Indeed, Windsor  was all about inheritance taxes. We marry to protect the financial wellbeing of our loved ones.

More importantly, there is something oddly familiar with Judge Feldman’s language. Then I recalled what Ryan T. Anderson wrote at the Heritage Foundation in 2010: Marriage exists to bring a man and a woman together as husband and wife
to be father and mother to any children their union produces
. National Organization for Marriage, the US Conference of Catholic Bishops, Robbert George and the pretentious polemicists du jour at Witherspoon Institute have all used similar language. To quote the Church’s point man on marriage discrimination, Archbishop Cordileone of San Francisco:

Why has virtually every known civilization across time and history
recognized the need to bring together men and women to make and raise
the next generation together?

It’s the same BS packaged differently. It’s a definition of marriage that was manufactured to object to same-sex marriage recognition.

Most Catholics support marriage equality. It is the hierarchy and the zealots who want to impose Church teachings on civil law. I did some checking. According to the Wall Street Journal Judge Feldman converted to Catholicism in 2008 and attends mass daily. There is nothing like the zeal of a convert. Judge Feldman issued an opinion directly from an amicus brief from someone like Robert George or Helen Alvare, one of the True Defenders of the Faith.

Judge Feldman criticized what he called a “pageant of empathy” in emotionally driven rulings nationwide. Equal protection and due process are not expressions of empathy. They are constitutionally protected rights. The child of a same-sex family is similarly situated to the child of an opposite-sex couple. Yet he or she is denied certain rights by virtue of the fact that his or her parents cannot marry in some states. The state disadvantages those children without any offsetting benefit to the state. At least none that can be logically voiced. Those children are disadvantaged by the recognition of religion which insults the First Amendment. Judge Feldman knows better.

Feldman is a well respected jurist. He serves on the FISA court as well. However, when it comes to marriage equality Feldman got it wrong on many counts. Yet it is the source of his opinion that is most troubling. Judges, particularly federal judges, have an obligation to disregard their religious convictions when deciding a case. There is no religious test for office in the United States. That is in the Constitution. Judges shouldn’t give rise to doubting the wisdom of our founding fathers in that regard.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.