Same-sex marriage (SSM) in Louisiana
Part 1: 2013 to 2014-NOV:
2013-JUL: A lawsuit, Costanza and Brewer v.
in a Louisiana state court.
2014: Two additional lawsuits are heard in
Court, and are combined as
Robicheaux v. Caldwell.
In a very unusual move,
the court rules in
of the state's SSM ban!
Same-sex marriage and civil unions in Louisiana were banned both by:
The Louisiana Constitutional Amendment 1 which was passed by 78% of voters in 2004, and
State statute LCC 3520(B) of the Louisiana Civil Code (LCC), which was passed by an overwhelming percentage of legislators.
2013-JUL-12: Lawsuit Costanza and Brewer v. Caldwell is filed in a Louisiana state court:
Angela Marie Costanza and Chastity Shanelle Brewer are residents of Lafayette, LA. They were legally married in California in 2008-AUG. The marriage occurred during the window of about five months duration when same-sex couples were able to marry there. In May of that year, the California Supreme Court had ruled in favor of marriage equality, and same-sex couples started to marry immediately. About 36,000 lesbians, gays, and bisexuals married a person of the same gender. On election day in early November, the citizen initiative -- Proposition 8 -- was narrowly passed by voters. It banned marriages by same-sex couples once more.
Ms. Brewer had conceived via in-vitro fertilization and gave birth to a son in 2004-AUG. Because the state does not recognize their marriage, Ms. Costanza was not permitted to legally adopt their son, as spouses in opposite-sex marriages routinely do. That could be a life-threatening situation in the event of a medical emergency.
They filed a lawsuit called: Costanza and Brewer v. Caldwell in state court, on 2013-JUL-12 seeking to have their out-of-state marriage recognized in Louisiana, and for Ms Costanza to be allowed to adopt her son. 6
On 2013-JUL-26, Judge Edward B. Broussard dismissed the case. The plaintiffs then appealed the case to the 15th Judicial District Court.
Further developments in Costanza and Brewer v. Caldwell are discussed in a subsequent essay
2014-JAN to OCT: Federal District Court: Two lawsuits were filed and later combined into a single case:
2014-JAN-13: Robicheaux v. George is filed. A previous same-sex marriage lawsuit, Robicheaux v.Caldwell, had been filed on 2013-JUL-16 in the U.S. District Court for the Eastern District of Louisiana. Plaintiffs were Jon Robicheaux and Derek Pinton who were married in Iowa during 2012. They want Louisiana, where they reside, to recognize their out-of-state marriage. It was dismissed in 2013-DEC on a technicality: the defendant named in the case was not directly responsible for refusing to issue a marriage license.
A new lawsuit was then launched by the same petitioners in the same court on 2014-JAN-13. It was titled: Robicheaux v. George. The plaintiffs asked that both the Louisiana amendment and statute be declared unconstitutional, and that Louisiana be required to recognize legal same-sex marriages that had been solemnized out-of-state. 1
"Robicheaux" was one of dozens of lawsuits in state and federal District Courts throughout the U.S. that followed the 2013-JUN-26 ruling by the U.S. Supreme Court in the case Windsor v. United States. Windsor had found Section 3 in the federal Defense of Marriage Act (DOMA) to be unconstitutional. That section had prohibited the federal government from recognizing legal marriages solemnized by same-sex couples. As a result of the high court's ruling, married same-sex couples were given access to 1,138 federal programs, benefits and protections that had previously been restricted to married opposite-sex couples.
2014-FEB-12: Forum for Equality Louisiana v. Barfield filed: Another marriage equality case was filed a month later. According to LGBTQNation:
"Forum for Equality Louisiana v. Barfield is a federal court challenge to Louisiana’s constitutional ban on same-sex marriage. [It was] filed ... by the Forum for Equality Louisiana and four married same-sex couples challenging the state’s constitutional prohibition against recognizing same-sex marriages performed legally in other states. The lawsuit also challenges the state’s refusal to recognize both members of a same-sex marriage solemnized in an out-of-state marriage as parents of a child born to them or adopted." 3
The complaint notes that same-sex couples in Louisiana who have married elsewhere are forced to lie to the Federal government when filing joint federal tax returns by stating that they are single.
2014-MAR-18: Cases consolidated: Because of the similarity of the two cases, U.S. District Court Judge Martin Feldman consolidated them. They then proceeded as a single case, called Robicheaux v. George.
2014-SEP-03: District Court Judge Martin Feldman issued his ruling in consolidated case: Robicheaux v. George:
He found that Louisiana's constitutional amendment and statute that bans same-sex marriage are constitutional. He also concluded that the state has no constitutional obligation to recognize out-of-state same-sex marriages. His ruling was the first time a federal judge had upheld a same-sex marriage ban since the U.S. Supreme Court ruling in Windsor during mid-2013.
According to Lesbian News, since the ruling for Windsor was issued on 2013-JUN-26, there had been 40 consecutive pro-marriage equality rulings in state and federal courts across the country. None of them had upheld state bans as happened in this case. 6 Each had found that a state's ban on marriage by same-sex couples violated the due process and/or equal protection clause of the 14th Amendment to the U.S. Constitution and was therefore unconstitutional and void.
Some points raised by Judge Feldman in his unique 32 page ruling are:
"The State of Louisiana has a legitimate interest under a rational basis standard of review for addressing the meaning of marriage through the democratic process. ... Many states have democratically chosen to recognize same-sex marriage. But until recent years, it had no place at all in this nation's history and tradition. ... 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. ..."
"...inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs. ..."
"Defendants point out that over 30 states choose not to
recognize same-sex marriages, and some 20 states haven chosen to recognize same-sex marriages in free and open debate through the democratic process. Both sides invoke the Supreme Court's decision in United States v. Windsor... "
"Louisiana's laws apply evenhandedly to both genders -- whether between two men or two women.
Same-sex marriage is not recognized in Louisiana ..."
assert a legitimate state interest in safeguarding that fundamental
social change, in this instance, is better cultivated through
democratic consensus. ..."
Although support for marriage equality is increasing as it is in all states, it would probably take at least a decade for it to be supported by most voters.
Judge Feldman's ruling continues:
"Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents. Louisiana's regime pays respect to the democratic process; to vigorous debate, [and] to predictable controversy, of course. The fact that marriage has many differing, even perhaps unproved dimensions, does not render Louisiana's decision irrational. Nor does the opinion of a set of social scientists (ardently disputed by many others, it should be noted) that other associative forms may be equally stable, or the view that such judgments vilify a group (even though one finds them in a majority of the states, but not in all states). Even the fact that the state's precepts work to one group's disadvantage does not mandate that they serve no rational basis. ..."
"The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid. ..."
"Because this Court concludes that Louisiana's laws are rationally related to its legitimate state interests, as defendants plausibly focus, ... [the laws] do not offend plaintiffs' rights to Equal Protection. ..."
"No authority dictates, and plaintiffs do not contend, that same-sex marriage is anchored to history or tradition. The concept of same-sex marriage is 'a new perspective, a new insight, nonexistent and even inconceivable until very recently. ... Many states have democratically chosen to recognize same-sex marriage. But until recent years, it had no place at all in this nation's history and tradition. Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental. ... There is simply no fundamental right,
historically or traditionally, to same-sex marriage. ..."
"This Court has arduously studied the volley of nationally
orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts that, in the words of Justice Scalia in a different context in Bond v. United States ... appear to have
assumed the mantle of a legislative body. ..."
" ... it is not for this Court to resolve the wisdom of same-sex marriage. The nation is witness to a strong conversation about what is marriage. The central question that must first be asked, is what is the fairest forum for the answer? A new right may or may not be affirmed by the democratic process. Perhaps someday same-gender marriage will
become part of this country's history and tradition, but that is not a choice this court should make. ..."
"... the Court finds that Louisiana's definition of marriage as between one man and one woman and the limitation on recognition of same-sex marriages permitted by law in
other states found in Article XII, Section 15 of the Louisiana Constitution and article 3520(B) of the Louisiana Civil Code do not infringe the guarantees of the Equal Protection and Due Process Clauses of [the 14th Amendment of] the United States Constitution. The record reveals no material dispute: the defendants have shown that Louisiana's decision to neither permit nor recognize same-sex marriage, formed in the arena of the democratic process, is supported by a rational basis. The Court further finds that plaintiffs have failed to establish a genuine dispute regarding a First Amendment violation
on this record. Accordingly, plaintiffs' motion for summary judgment is DENIED and defendants' motion for summary judgment is
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Robicheaux v. George," Marriage Equality Wiki, 2014, at: http://marriage.wikia.com/
"5th Circuit schedules hearings in appeals of Texas, Louisiana gay marriage rulings," LGBTQNation, 2014-OCT-27, at: http://www.lgbtqnation.com/
"Forum for Equality Louisiana v. Barfield," LGBTQNation, 2014, at: http://www.lgbtqnation.com/
"Lambda Legal joins appeal of Louisiana marriage ruling to 5th Circuit," LGBTQNation, 2014-OCT-07, at: http://www.lgbtqnation.com/
"Gay Marriage Suffers First Defeat In Federal Court Since SCOTUS Ruling," Talking Points Memo, 2014-SEP-03, at: http://talkingpointsmemo.com/
"Louisiana judge rules in favor of the freedom to marry, 40th victory since June ‘13," Lesbian News, 2014-SEP-22, at: http://lesbiannews.com/
Hope Ford, "Same-sex legal in Louisiana... for now," KLFY News 10, 2014-SEP-23, at: http://www.klfy.com/
"Louisiana," Freedom To Marry, 2014, at: http://www.freedomtomarry.org/
Judge Martin Feldman, "Order and Reasons," U.S. District Court, Eastern District of Louisiana, 2014-SEP-03, at: http://www.lgbtqnation.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-29
Last updated 2014-DEC-05
Author: Bruce A Robinson