In a sweeping victory for Angela Costanza and Chasity Brewer, Louisiana 15th Judicial District Court Judge Edward B. Rubin ruled on September 22 that Louisiana must recognize their California marriage and allow Chasity to adopt their son, N.B., who was conceived through donor insemination with Angela the birth mother. Louisiana Attorney General James “Buddy” Caldwell, one of the named defendants in the case, announced that the court’s order would be appealed directly to the Louisiana Supreme Court, by-passing the state’s 3rd Circuit Court of Appeals.
On virtually every point in his opinion, Judge Rubin disagreed with the recent decision by U.S. District Judge Martin L.C. Feldman, who had ruled that a marriage equality challenge must be rejected because of the Supreme Court’s 1972 ruling rejecting a marriage equality challenge from Minnesota, Baker v. Nelson, as not presenting a “substantial federal question.” However, Judge Rubin never mentioned Judge Feldman’s ruling in his opinion. On the other hand, he mentioned prominently and relied upon the U.S. Court of Appeals for the 10th Circuit’s decision in a marriage equality case from Utah, Kitchen v. Herbert, which that state has petitioned the U.S. Supreme Court to review.
Angela Costanza and Chasity Brewer lived together as same-sex partners in Louisiana and decided to have a child through donor insemination. Their son, N.B., was born on August 1, 2004, and recently celebrated his 10th birthday. Angela was the birth mother, and sperm was obtained from an anonymous donor. Costanza and Brewer married in California in 2008, during the five-month period when same-sex marriages were being performed before the enactment of Proposition 8. The California Supreme Court ruled in 2009 that the marriages performed during the summer of 2008 remained valid despite the passage of Proposition 8, which was later declared unconstitutional by the Supreme Court, restoring same-sex marriage in California in June 2013.
After the Supreme Court’s Windsor decision in June 2013, Costanza and Brewer’s marriage became recognized for purposes of federal law. However, the Louisiana Department of Revenue issued a bulletin providing that such marriages would not be recognized under Louisiana’s tax laws, and that same-sex couples required to file their federal returns as “married” would be required to file state tax returns as “unmarried.”
On July 12, 2013, shortly after the Windsor decision, Costanza and Brewer filed a petition in the Louisiana District Court in Lafayette, seeking to have Chasity become the adoptive parent of N.B. and to have their marriage recognized in Louisiana. The Attorney General’s Office received a copy of their petition, and asked the court to notify that office of any hearing in the case. Although a notice was sent, nobody from the Attorney General’s Office showed up at the hearing before Judge Rubin on January 27, 2014. Judge Rubin subsequently granted the adoption, but Attorney General Caldwell appealed, contending that his office had not been notified, and the 3rd Circuit Louisiana Court of Appeals vacated the adoption order on June 11, sending the case back to Judge Rubin to hold a new hearing in which the Attorney General’s Office could participate. By this time the case had taken on a broader significance, as the plaintiffs were challenging the constitutionality of Louisiana’s constitutional and statutory ban on same-sex marriages, as well as the ban on recognizing their marriage or allowing their adoption.
Judge Rubin held the new hearing on September 15 and moved quickly to notify the parties of his decision on September 22, making the text of his opinion available on September 23, but crossing out the child’s initials throughout the decision. However, the published opinion by the 3rd Circuit (see 140 So.3d 1263) contains those initials, so it seems odd that they would not be included in the unpublished trial court ruling, ostensibly to protect the anonymity of the child (which was effectively breached in any event since his parents are named in the opinion).
Judge Rubin granted Governor Bobby Jindal’s motion to be dropped as a defendant, finding that the governor was not a proper party to the lawsuit, but in every other respect Judge Rubin ruled in favor of the plaintiffs, including finding that Attorney General Barfield was an appropriate defendant, as were the Secretary of the Department of Revenue who had issued the tax ruling and the Registrar of Vital Records, who will be required to issue a new birth certificate for N.B. showing both parents.
Rubin’s ruling followed closely the recent ruling by the 10th Circuit in Kitchen v. Herbert, the Utah marriage case, finding that the Louisiana marriage ban violates the 14th Amendment. He went beyond most of the recent marriage equality cases, however, by also accepting the plaintiffs’ argument that Louisiana’s refusal to recognize their marriage violates the U.S. Constitution’s Full Faith and Credit Clause. That provision requires that states extend “full faith and credit” to “the public Acts, Records, and judicial Proceedings of every other State.” There is some dispute among scholars and courts about whether this Clause requires states to recognize marriages performed in other states, regardless whether such marriages could be found to violate the policy of the state whose recognition is sought.
Rubin quoted from Milwaukee County v. M.E. White Co, a 1935 U.S. Supreme Court decision, where the Court held that “the public policy of the forum state must give way, because the ‘very purpose of the full-faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.” He noted decisions requiring courts to honor divorce decrees issued in other states, including a case where the Supreme Court wrote, “If in its application local policy must at times be required to give way, such is part of the price of our federal system.”
As to the due process and equal protection claims, Rubin did not have to engage with the question whether heightened scrutiny applies to sexual orientation discrimination claims, as he followed the path of the 10th Circuit, finding that the case involves a fundamental right, and furthermore that “there is no rational connection between Louisiana’s laws prohibiting same sex marriage and its goals of linking children to intact families formed by their biological parents, or ensuring that fundamental social change occurs through widespread social consensus.” He pointed out that “Louisiana already allows for foster parent adoptions where there is no linkage to a child’s biological parent or family. Such placements have been found to be in the best interest of the child. It would be illogical to say that intact families are only those that are formed by a child’s biological parents.”
As to the interest in reserving social change to a “consensus” of the people, Rubin concluded, “It is the opinion of this court that widespread social consensus leading to acceptance of same-sex marriage is already in progress. The moral disapproval of same-sex marriages is not the same as it was when Louisiana first defined marriage as a union between a man and a woman.”
He rejected the state’s contention that “gays and lesbians can be treated differently, and yet be considered to be equal to the rest of Americans,” pointing to the pernicious “separate but equal” doctrine that had been struck down by the Supreme Court in its 1954 school segregation decision, Brown v. Board of Education. He also stated agreement with the plaintiffs’ argument that Loving v. Virginia, the Supreme Court’s 1967 ruling striking down a ban on interracial marriage, was relevant to this case, and quoted from the 10th Circuit’s Kitchen opinion to that effect. “Just a few decades ago in these United States,” he wrote, “miscegenation was illegal. It is now something that most Americans in today’s society hardly even debate. From a historical standpoint we’ve not been able to find any case law analogous to petitioner’s non-traditional marriage based on their sexual orientation, other than America’s miscegenation laws. Those laws were eventually resolved in the Supreme Court decision in Loving v. Virginia.”
“This court does not believe that the historical background of Loving is so different from the historical background underlying state’s bans on same-sex marriage,” Rubin continued. “One cannot look at Loving without recognizing that it was about racism as well as a couple’s decision to assert their right to choose whom to marry.” And, concluding on this point, he wrote, “This court has been asked to determine whether for purposes of the due process clause, the right to marry someone of the same sex is a ‘right’ deeply grounded in our Nation’s history and tradition. In line with what the Tenth Circuit said in Kitchen in regards to Loving; we respond by saying, the question for this court is not whether the right to marry someone of the same sex is deeply rooted in our Nation’s history and tradition; but the ‘right’ at issue is the freedom of choice to marry.”
The dozens of marriage equality opinions produced by courts since last December in Utah have one important point in common: the passionate response of the judges reflected in the language they have used to analyze the legal claims presented to them. Judge Rubin shared in that passion, clearly reflected in this opinion issued just a week after he conduct his hearing. However, he acceded to the state’s request that he hold up issuing a final Order in the case, giving the state an opportunity to appeal to the Louisiana Supreme Court as, simultaneously, the plaintiffs in the federal case are appealing to the 5th Circuit Court of Appeals. On September 19, with the acquiescence of the plaintiffs in the federal case, the state moved the U.S. Court of Appeals for the 5th Circuit to expedite briefing and to schedule its hearing of the appeal to coincide with the hearing, yet to be scheduled, in the state of Texas’s appeal of De Leon v. Perry, a marriage equality ruling that was issued in February 2014 but not appealed until the last possible date by that state’s attorney general, Greg Abbott, who is running for governor on the Republican ticket. Louisiana Attorney General Caldwell asked the 5th Circuit to schedule the argument for its November hearings. By then, of course, it is possible that the U.S. Supreme Court will have announced whether it will consider one or more of the appeals now pending from rulings by the 4th, 7th and 10th Circuits, all of which have been stayed pending disposition by the Supreme Court.