Wednesday, September 3, 2014
Constitutional judicialism in Judge Feldman's refusal to hold Louisiana's marriage laws unconstitutional
Reading through Judge Feldman's opinion granting summary judgment to Louisiana in a challenge to its marriage definition brought by same-sex plaintiffs, I noticed that some of the authorities he quoted were somewhat atypical for a federal district court decision. These authorities were about what one might call constitutional judicialism, which is a collection of ideas about what it means to be a good judge in deciding questions of constitutional law.
In explaining his refusal to identify a new suspect class that would require departing from rational basis review under the Equal Protection Clause, Judge Feldman quotes excerpts from Justice Powell's dissent from the Court's holding in Furman v. Georgia that capital punishment violated the Eighth Amendment. At other places in the opinion, Judge Feldman quotes the dissents of Judge Kelly (Tenth Circuit) and Judge Niemeyer (Fourth Circuit) from decisions holding unconstitutional state definitions of marriage to require a man and a woman. In an extended footnote, Judge Feldman also commends Judge Holmes (Tenth Circuit) for his "very careful" opinion concurring in a decision holding Utah's marriage definition unconstitutional. That opinion commended the district court in the Utah case for refusing to attribute Utah's definition of marriage to animus.
Although Judge Feldman's reliance on these authorities is atypical, that is because cases that turn on the proper understanding of the federal judicial role in constitutional cases are themselves atypical ... at least outside of the Supreme Court. Whether typical or not, this explicit discussion about what counts as good and bad judging in constitutional cases is entirely appropriate for cases of this sort.