Thursday, September 04, 2014

What a difference a day makes in marriage equality cases

The day after suffering a minor setback in losing a marriage equality court case in Louisiana, the lgbt community springs back today with a marriage equality victory in the 7th Circuit Court of Appeals. This victory eliminates marriage equality bans in Indiana and Louisiana.

This unanimous decision by the three judges was not a surprise, seeing how they practically ran the defenders of the ban out of court during the trial in late August.

Rather than make a large comparison between today's decision and yesterday's decision, I thought I would focus on the one thing which made the difference and that will probably continue make the difference in these cases:

Justice Martin Feldman in ruling for Louisiana's marriage equality ban:

This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents, as specifically underscored by Justice Kennedy in Windsor.

Justice Richard Posner in today's decision:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

The difference is stark. Posner and his fellow justices considered how the lack of marriage equality harms same-sex families with children. Feldman did not. In fact, Feldman omitted the fact that same-sex families with children exist.

In my opinion, that's what these cases will come down to - whether these families deserve protection given to them by marriage. Or do they deserve to be omitted and ignored.

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