Same-sex marriage (SSM) in Louisiana
Part 3: 2014-NOV to 2015-JAN:
Federal case: Hearing held by 5th U.S. Circuit
in Robicheaux v. Caldwell. Case is also
appealed directly to U.S. Supreme Court.
Week of 2014-NOV-23: Federal case: A very unusual request is filed with U.S. Supreme Court:
In an unusual development in the federal Robicheaux v. George case at U.S. District Court, both the state of Louisiana and the plaintiffs agree on one point: They would like the U.S. Supreme Court to hear their case before the 5th U.S. Circuit Court of Appeals issues its ruling. The 5th Circuit was at the time scheduled to consider whether to accept the appeal on 2015-JAN-09 and issue its decision at some later date.
Attorney Kyle Duncan has filed a request with the U.S. Supreme Court to hear appeals both in this case, and the earlier decision by the 6th U.S. Circuit Court of Appeals. The 6th Circuit is the only Circuit court so far to have ruled in favor of state same-sex marriage bans. This occurred in another consolidated case involving SSM bans in Kentucky, Michigan, Ohio, and Tennessee.
In his request, he referred to the string of 20 U.S. District Courts and the 4 U.S. Circuit Courts of Appeals which have all ruled state same-sex marriage bans to be unconstitutional. He wrote:
"The Louisiana decision provides a crucial counterpoint to the many erroneous decisions usurping state authority to define marriage. ... [Hearing both cases in which judges upheld the bans would allow the justices to consider] the widest possible range of state marriage laws." 1
Duncan also issued an email saying:
"We still plan to go ahead in the Fifth Circuit. But if the Supreme Court decides to wade into the issue now, we would like Louisiana's case to be one of the cases reviewed, which could be accomplished by granting the petition now rather than waiting for a Fifth Circuit ruling." 1
For the Supreme Court to hear a case before a U.S. Circuit Court of Appeals has rendered its ruling is unusual, but has happened before in very rare situations.
2014-DEC-18: Federal case: U.S. Supreme Court will consider whether to hear the Louisiana case:
The petition of the plaintiffs in the Louisiana case, Robicheaux v. George, was distributed to the Justices on 2014-DEC-18.
A Conference -- a private meeting of the Justices -- was scheduled for JAN-09 to consider whether the Court will accept the appeal of the Louisiana case and/or of any of the four other cases before it. 12
2015-JAN-09: Federal Cases: U.S. 5th Circuit Court of Appeals holds a hearing on same-sex marriage bans in Louisiana, Mississippi and Texas:
A three-judge panel of the 5th Circuit Court held hearings on JAN-09 on the same-sex marriage bans in all three of the contiguous states under its jurisdiction: Louisiana, Mississippi and Texas.
At the time of the hearing, same-sex couples were able to marry in the District of Columbia, and in 37 out of 50 states. At least one lawsuit to nullify a ban is active in each of the 13 states that still prohibit same-sex marriage. The states with marriage equality bans lie geographically in three rows:
- one north-south row of three states in the mid-west from North Dakota to Nebraska;
- one north-south row of four states from Michigan to Tennessee.
- one east-west row of six states from Texas to Georgia.
The hearing for the Robicheaux v. George case lasted for three hours. Of the three judges on the panel, James Graves and Patrick Higginbotham asked many questions that were consistently skeptical of the states' bans, while asking few questions of the plaintiffs' lawyers. The lead attorney for the Louisiana defendants was Kyle Duncan. He was formerly the solicitor general for Louisiana and more recently is from the Becket Fund for Religious Liberty. He based his defense of the marriage bans on two principles:
- States have the right to define eligibility for marriage within their boundaries without interference from the federal government or Constitution. He argued that the main purpose of marriage is procreation, and that same-sex couples, by themselves, cannot conceive. Therefore, they should be prohibited from marrying.
Judge Higginbotham asked why the procreation argument should be of paramount importance while the states allow incarcerated persons to marry a person of the opposite gender, even while serving a life sentence without the possibility of procreating.
The state also allows women who are beyond childbearing age to marry men, and allows infertile persons to marriage persons of the opposite sex.
- Same-sex marriage is a new development -- a "novel institution." Voters and legislators in the three states need more time to understand it and detect any adverse affects it might have on the economy and culture. Only a decade has passed since Massachusetts became the first state to legalize marriage for same-sex couples. Duncan argued that the three states:
"... should not have to go the way of other states that are involved in this social experiment."
Judge Graves commented:
"So your argument is... so since we don't know, we should fear the unknown and therefore we should ban it?"
It is important to realize that Massachusetts continues to have the lowest divorce rate of any state in the U.S. Thus, legalizing marriage for same-sex couples has not had a major adverse affect on opposite-sex marriages in that state.
The lead attorney for plaintiffs, Camilla Taylor from the LGBT rights group Lambda Legal, argued in court:
"There's no dispute in this case the marriage ban harms lesbian and gay couples. But also they're deprived of dignity in and equality in a way that harms people to their very cores."
After the hearing, she commented:
"We feel very optimistic coming out of court today. There seemed to be some significant discomfort [among the three-judge panel] with the unequal treatment same-sex couples and their children faced in all three states."
Stephen Griffin, a professor at Tulane Law School who specializes in constitutional law, observed the hearing. He said that judges:
"Higginbotham and Graves seemed like they're ready to strike ... [the same-sex marriage bans] down. It's not easy to predict what a court will do, but that really seemed like a 2-1 panel.
Gene Mills of the Louisiana Family Forum strongly opposes marriage equality, He expects that the 5th Circuit Court will uphold the same-sex marriage bans in the three states. He feels that the ultimate decision should be left up to the people of the states. He said:
"If you take that choice away from the people, you remove their opportunity to under [sic] the deliberative process and to weigh in. When that process is followed, that's when America generally accepts the opinion and we move forward." 2
However, there was a very similar lawsuit that was decided by the U.S. Supreme Court in 1967. In the case Loving v. Virginia, the high court overturned miscegenation laws in 16 contiguous states located in the south-eastern United States. This legalized interracial marriages throughout the U.S. If the high court had not acted in 1967, decades would probably have passed before all 16 states would have repealed their bans. In fact, the miscegenation laws remained on the books of many states even though they had been nullified by the Supreme Court. Alabama was the last state to repeal their ban in the year 2000, over three decades after the Loving v. Virginia ruling. If the same-sex couples were to wait for the legislative process in Louisiana, Mississippi, and Texas to legalize their marriages, they might continue to be regarded as "legal strangers" by their state into the 2040s before their states might recognize their marriages and give them and their children protections and benefits that opposite-sex couples automatically receive from their state.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Jannet McConnaughtey, "Louisiana petitions to skip step in same-sex marriage ban appeals," Johnson City Press, 2014-DEC-04
- "Louisiana gay marriage ban met with skepticism in appeals court," The Times-Picayune, 2015-JAN-10, at: http://www.nola.com/
- Andy Grimm, "What should happen to Louisiana's gay marriage ban? Take our reader poll,"The Times-Picayune, 2015-JAN-09. at: http://www.nola.com/
Copyright © 2015 by Ontario Consultants on
Originally published: 2015-JAN-11
Last updated 2015-FEB-28
Author: Bruce A Robinson