Same-sex marriage in Louisiana

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Legal status of
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Notes
  1. Performed statewide in 23 states and Mexico City, in certain municipalities in two other states, and recognized by all states in such cases.
  2. Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  3. Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  4. Neither performed nor recognized in the five Caribbean overseas territories.
  5. Neither performed nor recognized in American Samoa or some tribal nations.
  6. Cohabitation. Registered foreign marriages confer limited rights. Marriage recognized in some cities.
  7. Degree of recognition unknown. No actual cases to date.
  8. The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens.
  9. Legal guardianships (nationwide, except Hong Kong and Macau), residency rights for foreign spouses of legal residents (Hong Kong).
  10. Unregistered cohabitation or Maitri Karar–type contractual relationships.
  11. Some cities and prefectures issue certificates for same-sex couples, but they are not legally binding.
  12. Foreign same-sex spouses are eligible for a "Non-Tourist Visa" as a dependent.
* Not yet in effect
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The U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015 held that the denial of marriage rights to same-sex couples is unconstitutional, invalidating the ban on same-sex marriage in the U.S. state of Louisiana. The ruling clarified conflicting court rulings on whether Louisiana officials are obligated to license same-sex marriages. Governor Bobby Jindal confirmed on June 28 that Louisiana would comply with the ruling once the Fifth Circuit Court of Appeals reversed its decision in a Louisiana case, which the Fifth Circuit did on July 1. Jindal then said the state would not comply with the ruling until the federal District Court reversed its judgment, which it did on July 2. All parishes now issue marriage licenses in accordance with federal law.

Recognition of same-sex unions[]

Same-sex marriage in Louisiana before Obergefell v. Hodges
  Same-sex marriage ban overturned, decision stayed until July 7, 2015 when the Louisiana Supreme Court dismissed the state's appeal in Costanza v. Caldwell whereby legalizing both same-sex adoption and same-sex marriage in Louisiana[1]
  Same-sex marriage banned

Same-sex marriage is legal in Louisiana after the United States Supreme Court decision in Obergefell v. Hodges. Furthermore, the ruling by the Louisiana Supreme Court in Costanza v. Caldwell allows same-sex couples to adopt in the state.

Legal restrictions[]

On September 18, 2004, by 78% to 22%, the voters of Louisiana approved a state constitutional amendment that banned same-sex marriages and civil unions. The measure banned any other legal status "identical or substantially similar to that of marriage".[2]

In 1988 and 1999, Louisiana added provisions to its Civil Code that prohibited same-sex couples from marrying and prohibited the recognition of same-sex marriages from other jurisdictions,[3][4] around the same time as the federal Defense of Marriage Act (French: Loi de défense du mariage) was enacted into law by the United States Congress.

In 1997, the city of New Orleans extended health insurance benefits to same-sex partners of city employees, the first and only city in the state to do so. In 1999, the city created a domestic partner registry.[5]

Costanza v. Caldwell[]

In July 2013, a state trial court dismissed a lawsuit, In Re Costanza and Brewer, brought by a lesbian couple who married in California and sought to have their marriage recognized in order to allow Constanza to adopt Brewer's biological child. The plaintiffs appealed that dismissal because they were not allowed to amend their complaint,[6] and on February 5, 2014, 15th Judicial District Court Judge Edward Rubin ruled in favor of the plaintiffs and authorized the adoption in a separate action.[7]

Costanza and Brewer merged their suit that challenged Louisiana's same-sex marriage ban and their adoption case into one action. They were represented by private counsel: Lafayette attorney and Iraqi veteran Joshua S. Guillory,[8] and professor of law and playwright Paul Baier.[9] On September 22, 2014, Judge Rubin found Louisiana's ban an unconstitutional violation of the Equal Protection, the Due Process, and the Full Faith and Credit clauses of the U.S. Constitution.

State officials asked him to stay his decision and announced plans to appeal directly to the Louisiana Supreme Court.[10] He ordered the state to allow the plaintiffs to file a joint state income tax return and to allow their adoption to proceed. He enjoined the state from enforcing laws that "prohibit a person from marrying a person of the same sex".[11] He stayed his ruling pending appeal, and the Attorney General appealed directly to the Louisiana Supreme Court,[12] which heard oral argument on January 29, 2015.[13]

On July 7, 2015, following the U.S. Supreme Court decision in Obergefell v. Hodges on June 26, 2015, the Louisiana Supreme Court, by a 6-1 ruling, found the case moot and dismissed the state's appeal making the trial court's ruling in Costanza v. Caldwell final and binding in Louisiana regarding same-sex marriage.[1]

Robicheaux v. George[]

In July 2013, a lawsuit brought in the Eastern District of Louisiana challenged the state's refusal to recognize same-sex marriages from other jurisdictions. The plaintiffs were a same-sex couple married in Iowa in September 2012, later joined by a second couple; the case was assigned to U.S. District Judge Martin Feldman.[14] The court dismissed the suit in November 2013 because it found that the only named defendant, the state Attorney General, had taken no specific action with respect to the plaintiffs' marriages.[15]

On February 5, 2014, the Robicheaux plaintiffs, now joined by two women married in Iowa in 2013 and two men denied a marriage license in New Orleans in January 2014, refiled their suit, naming as principal defendant the state Director of Health, along with the Secretary of Revenue, with the case styled Robicheaux v. George.[16] Forum For Equality, a Louisiana LGBT activist group, filed a separate suit on behalf of four couples on February 12, seeking recognition of same-sex marriages established in other jurisdictions.[17] On March 18, Judge Feldman consolidated the two cases under the name Robicheaux v. Caldwell. Oral arguments on motions for summary judgment were held on June 25.[18]

On September 3, Judge Feldman ruled for the defendants, writing 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".[19] He wrote that the idea of same-sex marriage was "nonexistent and even inconceivable until very recently".[20] He described the issue as "a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition." He found nothing in United States v. Windsor or previous Fifth Circuit decisions to require him to subject Louisiana's ban to "heightened scrutiny". He also ruled that "There is simply no fundamental right, historically or traditionally, to same-sex marriage." Under "rational basis review", he accepted the state's claim that its laws "serve a central state interest of linking children to an intact family formed by their biological parents" and further its interest in "safeguarding that fundamental social change ... is better cultivated through democratic consensus."[21] He wrote:

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.

He characterized other federal court decisions invalidating state bans on same-sex marriage as "the volley of nationally orchestrated court rulings ... [that] thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos." He also asked what the impact of a decision for the plaintiffs might foretell:

[I]nconvenient 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? .... This Court is powerless to be indifferent to the unknown and possibly imprudent consequences of such a decision.

Appeal[]

All parties asked the Fifth Circuit Court of Appeals to set an expedited briefing schedule to allow an appeal to be heard alongside De Leon v. Perry.[22] The Fifth Circuit granted that request on September 25.[23] The Fifth Circuit heard oral argument on January 9, 2015, before Judges Patrick E. Higginbotham, Jerry E. Smith, and James E. Graves, Jr..[24]

On November 20, the plaintiffs filed a petition asking the U.S. Supreme Court for a writ of certiorari before judgment, that is, to hear the case, now Robicheaux v. George, without waiting for a decision from the Fifth Circuit.[25] The state supported that request on December 2.[26] The Supreme Court denied that petition on January 12, 2015.[27]

U.S. Supreme Court ruling[]

On June 26, 2015, following the decision by the U.S. Supreme Court in Obergefell v. Hodges, the plaintiffs asked the Fifth Circuit to immediately reverse the district court and have that court resolve the case in their favor.[28] The same day, the Louisiana Attorney General erroneously said that nothing in that decision required the state to cease enforcing its same-sex marriage ban. On June 28, Governor Jindal said the state would comply with the Supreme Court decision as soon as the Fifth Circuit reversed the district court ruling in Robicheaux that upheld the state's ban.[29][30] On July 1 the Fifth Circuit reversed its earlier ruling in Robicheaux and instructed the district court to record a judgment for the plaintiffs no later than July 17.[31] Jindal then said the state would not recognize same-sex marriages until the district court reversed its ruling.[32] In the district court, Judge Feldman issued a new judgment in favor of the plaintiffs on July 2.[33]

Several parishes began issuing marriage licenses to same-sex couples on June 29, including Jefferson, Calcasieu, East Baton Rouge, West Feliciana, East Feliciana, Assumption, Livingston, Ascension and Tangipahoa.[34][35][36] As of July 1, Orleans Parish refused to issue marriage licenses to same-sex couples.[32] The district court ordered the state to begin licensing same-sex marriages in the parish the next day, and the state complied.[37] For sometime after the Obergefell ruling, however, several parishes refused to issue marriage licenses to same-sex couples, including Jackson, LaSalle, Lincoln, Madison, Red River, St. Tammany and Webster. Those parishes began issuing licenses to all couples on July 6, 2015.[38]

Efforts to repeal unconstitutional ban[]

In March 2018, the Louisiana Senate Judiciary Committee rejected a proposed bill to repeal the unconstitutional same-sex marriage ban. The bill would have also made changes throughout Louisiana statute law, replacing words such as "mother" and "father" with "parent". The vote was 4-1, with Representative Jay Luneau (D-Alexandria) the sole lawmaker in favor. The Louisiana Family Forum opposed the bill. (D-New Orleans), the bill's main sponsor, said: "This is the law of the land whether you like it or not." The Louisiana Law Institute also supported the bill.[39]

Public opinion[]

Public opinion for same-sex marriage in Louisiana
Poll source Date(s)
administered 		Sample
size 		Margin of
error 		% support % opposition % no opinion/don't know
Public Religion Research Institute April 5-December 23, 2017 983 ? 48% 44% 8%
Public Religion Research Institute May 18, 2016-January 10, 2017 1,410 ? 44% 45% 11%
Public Religion Research Institute April 29, 2015-January 7, 2016 1,170 ? 41% 49% 10%
New York Times/CBS News/YouGov September 20-October 1, 2014 2,187 likely voters ± 2.5% 39% 46% 15%
Public Policy Polling June 26–29, 2014 664 registered voters ± 3.8% 32% 55% 13%
Public Policy Research Lab February 4-February 24, 2014 1,095 respondents ± 3% 41.7% 52.7% 5.6%
Public Policy Polling August 16–19, 2013 721 voters ± 3.7% 28% 63% 10%
Harper Polling April 6–7, 2013 541 Likely Voters ± 4.21% 21% 60% 19%
Public Policy Research Lab February 8-March 17, 2013 930 respondents ± 3.6% 39.3% 56.3% 4.4%
Public Policy Polling February 8–12, 2013 603 voters ± 4% 29% 59% 12%

See also[]

References[]

  1. ^ a b Lanie Lee Cook & Maya Lau (7 July 2015). "Louisiana Supreme Court weighs in on same-sex marriage with pointed opinions". The Advocate.
  2. ^ "Forum for Equality PAC v. McKeithen". Retrieved July 1, 2015.
  3. ^ "III. States Where Same-Sex Marriage is Prohibited". Fclaw.com. Archived from the original on 2014-04-16. Retrieved 2014-06-29.
  4. ^ La. C.C. arts. 89, 3520
  5. ^ "New Orleans Gay Rights Law Challenged In Court". Gaypasg.org. Retrieved 2014-06-29.
  6. ^ "In Re Costanza and Brewer, September 25, 2013" (PDF). Retrieved 2014-06-29.
  7. ^ Goff, Jessica (February 13, 2014). "Same-sex couple clear adoption hurdle". The Advertiser. Retrieved April 19, 2014.
  8. ^ "Lafayette Attorney Joshua S. Guillory".
  9. ^ "Father Chief Justice".
  10. ^ Geidner, Chris (September 22, 2014). "Louisiana Judge Rules Same-Sex Marriage Ban Unconstitutional, Clashing With Federal Court". BuzzFeed News. Retrieved September 22, 2014.
  11. ^ Order, Costanza v. Caldwell, March 22, 2014, accessed March 24, 2014
  12. ^ "Suspensive Appeal Motion and Order". Scribd.com. Retrieved September 26, 2014.
  13. ^ "Louisiana Supreme Court urged to rule in same-sex marriage". January 30, 2015. Retrieved January 30, 2015.
  14. ^ Barnett, Kyle (August 2, 2013). "Louisiana Attorney General sued by gay man seeking to have marriage recognized". Louisiana Record. Retrieved December 8, 2013.
  15. ^ Johnson, Chris (December 1, 2013). "Court dismisses La. marriage equality lawsuit". Washington Blade. Retrieved December 1, 2013.
  16. ^ Wilson, Xerxes (February 16, 2014). "Local same sex couple sues state". Houma Today. Retrieved February 28, 2014.
  17. ^ Trotter, Darian (February 12, 2014). "Gay & Lesbian Couples Sue For Marriage Equality". WGNO. Retrieved February 28, 2014.
  18. ^ "Litigation in Louisiana". Freedom to Marry.org. Archived from the original on 27 April 2014. Retrieved 25 April 2014.
  19. ^ Snow, Justin (September 3, 2014). "Federal judge finds Louisiana same-sex marriage ban constitutional". Metro Weekly. Retrieved September 3, 2014.
  20. ^ Johnson, Chris (September 3, 2014). "Judge bucks trend, upholds Louisiana same-sex marriage ban". Washington Blade. Retrieved September 3, 2014.
  21. ^ Order and reasons, Robicheaux v. Caldwell, September 3, 2014, accessed September 3, 2014
  22. ^ "State's Motion to Expedite Appeal". Scribd.com. September 19, 2014. Retrieved September 20, 2014.
  23. ^ Denniston, Lyle (September 25, 2014). "Texas, Louisiana same-sex marriage cases linked". SCOTUSblog. Retrieved September 26, 2014.
  24. ^ Geidner, Chris (9 January 2015). "Federal Appeals Court Appears Poised To Strike Down Three Southern States' Same-Sex Marriage Bans". BuzzFeed News. Retrieved 9 January 2015.
  25. ^ Geidner, Chris (November 20, 2014). "Louisiana Same-Sex Couples Ask Supreme Court To Hear Their Marriage Case". BuzzFeed News. Retrieved November 20, 2014.
  26. ^ "State's Brief in support of cert before judgment". Scribd.com. Supreme Court of the United States. Retrieved December 2, 2014.
  27. ^ Johnson, Chris (January 12, 2016). "Supreme Court won't (yet) hear Louisiana marriage case". Washington Blade. Retrieved January 12, 2015.
  28. ^ "Plaintiffs' Notice of Supplemental Authority". Retrieved June 26, 2015.
  29. ^ Gass, Nick (June 28, 2015). "Jindal: Louisiana will obey the high court on gay marriages". Politico.com. Retrieved June 28, 2015.
  30. ^ Thomas, Shawna (June 29, 2015). "Jindal: Louisiana Will 'Comply' With Same-Sex Marriage Ruling". NBC News. Retrieved June 29, 2015.
  31. ^ "Louisiana 5th Circuit Opinion". Equality Case Files. Retrieved July 1, 2015.
  32. ^ a b "Bobby Jindal says Louisiana government won't recognize same-sex marriages for now". The Times-Picayune. July 1, 2015. Retrieved July 1, 2015.
  33. ^ "Judgment in Louisiana marriage case Robicheaux v. Caldwell". Equality Case Files. Retrieved July 2, 2015.
  34. ^ Shaw, Andrea (June 29, 2015). "Jefferson Parish gives 1st Louisiana marriage license to gay pair". Times-Picayune. Retrieved June 29, 2015.
  35. ^ Schmidt, Theresa (June 29, 2015). "Calcasieu expected to issue same-sex marriage licenses 'sometime today'". KPLC. Retrieved June 29, 2015.
  36. ^ Sues, Brock (June 29, 2015). "Multiple parishes issuing same-sex licenses now". KPLC. Retrieved June 29, 2015.
  37. ^ "Bobby Jindal administration will start issuing marriage licenses to same-sex couples in downtown New Orleans". The Times-Picayune. July 2, 2015. Retrieved July 2, 2015.
  38. ^ Last clerk in Louisiana blocking same-sex marriage licenses has religious objection
  39. ^ Louisiana Senate Committee rejects use of LGBT-friendly language in marriage laws
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