By Robert Mann
No one knows for sure if the 5th U.S. Circuit Court of Appeals will affirm U.S. District Judge Martin Feldman’s September decision that upheld Louisiana’s same-sex marriage ban. What we do know is that if any federal appeals court in the nation rules against same-sex marriage, it is likely to be a panel of ultra-conservative judges who make up the majority of the 5th. Of course, it all depends on which individuals sit on that three-judge panel, or if all the court’s judges convene to consider the matter.
However the decision unfolds, the eyes of the nation’s constitutional scholars are now on the New Orleans-based court. If it reaffirms Louisiana’s constitutional amendment prohibiting same-sex marriage, it would likely be the case that finally prompts a full Supreme Court hearing of the question. If most legal scholars are to be trusted, it is apparent that a majority of the court would rule in favor of nationwide marriage equality, even in Louisiana.
On Monday, justices tacitly affirmed several appeals court rulings that declared unconstitutional five state laws — in Indiana, Oklahoma, Utah, Virginia and Wisconsin — that prohibit same-sex marriage. The following day, another federal appeals court found Idaho’s and Nevada’s same-sex marriage bans unconstitutional, adding at least two more states to the marriage equality list. In all, as many as 32 states — perhaps more — will soon allow same-sex couples to marry.
That’s the good news.
The bad news, of course, is that a Louisianian might be the last federal district judge in American history to rule against same-sex marriage. And a Louisiana-based federal appeals court could issue the final court ruling in our history that denies basic human rights to gays and lesbians.
In other words, Louisiana might again offer up a landmark case in a human rights issue before the Supreme Court. If so, we will be, as we often are, on the wrong side of history.
I say, “again,” with the case of Plessy v. Ferguson in mind. In that historic and shameful 1896 decision, the U.S. Supreme Court affirmed a Louisiana law — upheld by New Orleans Judge John Howard Ferguson and ratified by the state’s Supreme Court — which required separate rail cars for whites and blacks. In its 7-1 decision, the Supreme Court asserted, “If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Justice Edward Douglas White of Louisiana voted with the majority.
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