African-American Judge Compares Marriage Discrimination to Racism

A state judge in Louisiana has written one of the most stinging rebukes yet of marriage bans, comparing them to the racist "separate but equal" laws upheld by the U.S. Supreme Court in Plessy v. Ferguson, then later overturned in Brown v. Board of Education.

Judge Edward Rubin ruled in a custody case last week that the Louisiana's marriage ban is unconstitutional. Rubin, who is black, drew strong parallels to the Plessy and Brown cases, pointing out that Plessy "stood for the proposition that there could be separate but equal treatment of the two races. Fortunately for this country, the U.S. Supreme Court was presented with the case of Brown ... which overruled any doctrine that held 'separate but equal.'"

That's particularly relevant to this case, since the Plessy case concerned a discriminatory Louisiana law. In that case, it was the Separate Car Act, enacted by the legislature in 1890 to enforce separate race-based accommodations.

Louisiana's same-sex marriage ban was enacted by the state legislature in 1988 and 1999, and again by voters in 2004.

Rubin's decision contains several other important points. Like many state defendants, Louisiana attorneys cited the case Baker v. Nelson to support their claim that the U.S. Constitution has no bearing on marriage rights for gay and lesbian couples. This argument has been repeatedly dismissed by numerous federal judges, and Rubin is no different: he quotes a Tenth Circuit decision "'that doctrinal developments' had superseded Baker."

Rubin unequivocally states that Louisiana's marriage ban has "no rational connection" to promoting stable families. He adds that "the State has given no legitimate state interest in waiting to ensure that fundamental social change occurs through widespread social consensus."

The decision is at odds with a ruling from a federal court earlier this month, in which Judge Martin Feldman upheld the state's ban.

Louisiana Attorney General Buddy Caldwell has already appealed Rubin's ruling directly to the state Supreme Court.

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