This week, in an odd coincidence of timing, two judges put on the federal bench by Ronald Reagan issued rulings on consecutive days about whether the U.S. Constitution requires states to allow same-sex couples to marry, and reached diametrically opposite results.  On September 3, District Judge Martin Feldman of the Eastern District of Louisiana held that it is constitutionally permissible for a state to deny marriage equality to gay men and lesbians (the first judge to so rule after more than two dozen decisions to the contrary in the last year).  The very next day, in an opinion written by Judge Richard Posner for a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, that court held that such discrimination is prohibited by the Fourteenth Amendment.   

Judges Feldman and Posner are not the first two Reagan judges to rule on marriage equality, only the most recent.  Outwardly, they have some interesting similarities.  Each was born in the 1930s (Feldman in 1934 and Posner in 1939).  Each was put on the bench by President Reagan in the early 1980s (Posner in 1981 and Feldman in 1983). 

In terms of these two cases, however, that’s where the similarities between the judges end.  In his opinion, Judge Feldman described being gay as a “lifestyle choice,” whereas Judge Posner called it an “immutable characteristic.”  The notion that human sexual orientation (of whatever variety) is a “choice” has been so discredited by science that one can only conclude that Judge Feldman is still mired in the era in which he grew up, having utterly failed to correct his views of gay people despite the evidence.  Later in his opinion, he compares same-sex marriage to incest and polygamy for purposes of legal analysis, the insulting-to-gay-people refuge of those who cannot grapple with the actual case before them.  Reading Judge Feldman’s views of gay people, I was reminded of Bowers v. Hardwick, the since-overturned Reagan-era ruling by the Supreme Court holding that the Constitution allows states to criminalize sex between consenting same-sex adults.  Judge Feldman was put on the bench in the 1980s, and he seems to still be stuck there. 

Unfortunately, Judge Feldman doesn’t have a much better grasp of the Constitution than he does of gay people.  As has already been pointed out, Judge Feldman erroneously claims in his opinion that “the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.”  In fact, however, the Fourteenth Amendment broadly prohibits states from denying “any person” the equal protection of the laws.  It’s not limited to race at all.  To the contrary, the Framers of the Fourteenth Amendment specifically rejected proposals to limit its sweeping guarantees to a prohibition of racial discrimination.  It’s difficult to imagine a federal judge getting the Constitution so wrong, but Judge Feldman’s gross error here permitted him to cast aside as irrelevant the Supreme Court’s critically important ruling in Loving v. Virginia, in which the Court held that state laws permitting interracial marriage were unconstitutional.   Loving, in fact, has been relied on by numerous courts in the recent string of decisions striking down state bans on same-sex marriage as violating the Fourteenth Amendment’s guarantees of equal protection and liberty.

The very different views that Judges Feldman and Posner have of gay people are keys to their very different rulings.  Judge Posner accurately sees gay people as occupying one point along the scale of immutable sexual orientation, and thus his opinion holds that discrimination against them is constitutionally suspect.  His opinion then carefully examines the various arguments presented by the states as justification for prohibiting same-sex couples from marrying, and explains why those arguments make no sense and why the laws in question thus violate the Constitution’s broad equality guarantee.  Much of Judge Posner’s opinion is taken up by a discussion of the harms caused to the children of gay parents because their parents cannot marry, harms that belie the states’ claim that marriage must be confined to opposite-sex couples because of the children they can produce.  Little wonder that Judge Posner describes the states’ argument as “so full of holes that it cannot be taken seriously.”

But there’s another Reagan judge who matters here too — probably the only one who really does — Anthony Kennedy, born in 1936 and put on the Supreme Court by President Reagan in 1988.  Justice Kennedy, of course, is the author of the Court’s historic gay rights rulings in Romer v. Evans, Lawrence v. Texas, and United States v. Windsor.  If the issue of marriage equality returns to the Court as it is presently constituted, it’s a very good bet that Justice Kennedy’s vote will decide the case.  Earlier this week, Professor Garrett Epps described Judge Feldman’s ruling as an appeal to Justice Kennedy.  Justice Kennedy, however, does not share Judge Feldman’s antiquated views of gay people, and I seriously doubt that he would be persuaded in the slightest by the social science and constitutional mess that is Judge Feldman’s opinion.  It is far more likely that Justice Kennedy, who himself has expressed great concern about the substantial harms caused by marriage discrimination, including to children, would find Judge Posner’s opinion to be the more persuasive one.

It’s rather remarkable, when you get right down to it, that marriage equality for gay people will likely turn on a Reagan judge.  But as Judge Posner’s ruling most recently shows, that’s not necessarily a bad thing.