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Louisiana Trial Court Rules for Marriage Equality, Ordering Recognition and Granting Adoption of Child

Posted on: September 24th, 2014 by Art Leonard No Comments

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.

Federal Judge Rules Against Marriage Equality in Louisiana

Posted on: September 3rd, 2014 by Art Leonard No Comments

U.S. District Judge Martin L. C. Feldman, appointed to the federal bench by President Ronald Reagan in 1983, has rejected a constitutional challenge to Louisiana’s state constitutional and statutory ban on same-sex marriage.  Parting company from every federal district judge who has decided a marriage equality claim since the Supreme Court’s June 2013 decision striking down a federal ban on the recognition of same-sex marriages, U.S. v. Windsor, Feldman insisted that existing precedents preserve Louisiana’s right to treat this as a political question to be resolved by its voters and elected legislators.  The case is Robicheaux v. Caldwell, 2014 U.S. Dist. LEXIS 122528, a consolidation of two separate cases filed on marriage recognition and the right to marry.

Surprisingly, Feldman did not premise his ruling on the Supreme Court’s 1972 rejection of a marriage equality case from Minnesota, Baker v. Nelson, observing that the state had not sought to defend its marriage ban on that basis.  Instead, Feldman concluded that no fundamental right was at stake, no heightened scrutiny was required under either the Due Process or Equal Protection Clauses of the 14th Amendment, and that Louisiana could meet the rational basis test through two state interests: “linking children to an intact family formed by their biological parents,” and “of even more consequence, in this Court’s judgment, defendants assert a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus.”

In effect, although giving lip service to the procreation aspect of the case, Feldman’s opinion is a lengthy salute to Federalism, which, he proclaims, is “not dead.”  He relies, among other things, on the part of Justice Anthony Kennedy’s opinion for the Supreme Court in the DOMA case that focused on the historical role of the state in defining and controlling the institution of marriage.  “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens,” Kennedy had written.  “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘protection of offspring, property interests, and the enforcement of marital responsibilities.'”  Kennedy went on at length on this, which was key to his conclusion that a federal law refusing to recognize state-approved marriages was an unusual intrusion by the federal government into a role traditionally reserved to the states.  To bolster this point, Feldman cited Chief Justice John Roberts’ concurring opinion, arguing that the case was essentially a federalism case that had nothing to say about whether states were required to allow or recognize same-sex marriages.

Turning to the specific equal protection and due process arguments, Feldman pointed out that the Supreme Court had notably refrained from finding that sexual orientation discrimination involves a suspect classification meriting strict scrutiny review, and that existing precedents in the 5th Circuit would use the deferential rational basis test.  He rejected the argument that the Supreme Court’s actual approach in Romer v. Evans, the 1996 case striking down Colorado’s anti-gay Amendment 2, had used some form of heightened scrutiny, or that the subsequent rulings in Lawrence v. Texas, striking down the Texas anti-gay sodomy law or Windsor had used or would require heightened scrutiny.  He also emphasized Justice Kennedy’s statement in his Lawrence opinion that shielding gay relationships from criminal law did not necessarily mean extending legal recognition to such relationships.

Evaluating the standard of judicial review under the Due Process clause, Feldman parted company from most of the other district judges and the majority of judges on the 10th and 4th Circuit Court of Appeals panels in their recent marriage equality decisions from Utah, Oklahoma and Virginia, rejecting the idea that this case was about the “fundamental right to marry.”  Instead, he insisted, it was about a claim to a right for “same-sex marriage.”  As such, he asserted, such a right could not be deemed fundamental because it was not deeply rooted in our history or tradition.  Again, he emphasized Justice Kennedy’s statements in his Windsor opinion about how same-sex marriage was a recent phenomenon.  And, since a fundamental right was not at stake, once again he concluded that this was a rational basis case.

Feldman also rejected the plaintiffs’ argument that the marriage ban discriminated based on gender, requiring heightened scrutiny, relying on Loving v. Virginia, the 1967 Supreme Court ruling striking down a law against interracial marriages.  In that case, the Supreme Court rejected the state’s argument that the statute was not discriminatory because members of both races were equally forbidden from marrying members of the other race.  “Plaintiffs’ argument betrays itself,” he wrote.  “Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.  Even ignoring the obvious difference between this case and Loving, no analogy can defeat the plain reality that Louisiana’s laws apply evenhandedly to both genders — whether between two men or two women.  Same-sex marriage is not recognized in Louisiana and is reasonably anchored to the democratic process.  This Court is therefore satisfied that rational basis applies.”

Feldman’s confident assertion is factually inaccurate in one glaring respect.  The 14th Amendment never mentions race — the word never appears — and expressly adopts an equal protection principle without referring to any specific grounds for discrimination.  There is no express ban on race discrimination in the 14th Amendment, although the historical context of its enactment clearly supports the interpretation under which race discrimination is strongly outlawed.  Thus, his statement goes well beyond the dissent in the Oklahoma case that he cites as authority for it.  (Feldman cites frequently to the dissenting opinions in both the 10th and 4th Circuit cases.)

As to the rational basis argument, he wrote, “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.  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.”

Feldman also rejected the idea that Louisiana’s democratically approved policy choice “could only be inspired by hate and intolerance.”  Recalling the vigorous public debate over the marriage amendment, he wrote, “All sides for and against grappled with this solemn issue.  The Court declines to assign an illicit motive on the basis of this record, as have also two federal appellate judges as well,” noting the dissenting opinions in the 10th and 4th Circuit cases, and particularly Judge Holmes’ concurring opinion in the Oklahoma case, agreeing with the result but rejecting the idea that the Oklahoma marriage amendment was infected with anti-gay animus.

Judge Feldman also rejected an argument that requiring same-sex couples who married out-of-state to identify themselves as unmarried on their Louisiana tax forms somehow violated their 1st Amendment right against compelled speech.  He pointed out that the 5th Circuit, whose rulings are binding on him, had recently rejected such an argument in U.S. v. Arnold, 740 F.3d 1032 (2014), specifically quoting an 8th Circuit opinion to the effect that “there is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly society.”  The 5th Circuit opinion specifically rejected the claim that required disclosure of information on a tax form is “compelled speech” in violation of the 1st Amendment.

The concluding section of the opinion clearly signals Judge Feldman’s resistance to being stampeded into ruling for plaintiffs based on the accumulation of recent marriage equality opinions.  “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.”  However, he concluded, these courts had stepped outside of their appropriate role and “appear to have assumed the mantle of a legislative body.”  “It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts that have spoken to this pressing issue,” he continued, “if this Court were confident in the belief that those cases provide a correct guide.”  But he has concluded that all of these many courts have misconstrued U.S. v. Windsor.  In any event, he said, the 5th Circuit “has not yet spoken” and ultimately the Supreme Court will have to decide the issue.

Plaintiffs, who are represented by private attorneys not affiliated with gay rights litigation groups, will probably appeal this case to the 5th Circuit, which has recently received an appeal by the state of Texas from a pro-marriage equality ruling rendered there last winter. If the plaintiffs move quickly, it is possible that their appeal could be consolidated with the Texas case for simultaneous hearing before the same three-judge panel.

Meanwhile, rulings are anticipated from the U.S. Courts of Appeals for the 6th and 7th Circuits, both of which heard arguments in marriage equality cases during August.   Most legal observers expect the 7th Circuit to rule for marriage equality and anticipate that the 6th Circuit may rule against it, based on the composition of the three-judge panels and the questions and comments of the judges during the oral arguments.  Audio recordings of those arguments are available on the courts’ websites.

The 9th Circuit Court of Appeals will be hearing arguments on September 8 in cases from Idaho, Nevada and Hawaii.  The recently-announced  panel of judges in the 9th Circuit is notably gay friendly, including Stephen Reinhardt, the judge who wrote the panel decision striking down California Prop 8.  Another judge on the panel wrote an opinion overturning a district court’s dismissal of a challenge to the “don’t ask, don’t tell” anti-gay military policy.  The 9th Circuit also has a precedent establishing that sexual orientation discrimination claims merit heightened scrutiny, so it seems likely that the 9th Circuit will produce a pro-marriage equality decision, since legal commentators generally agree — as do almost all the judges who have ruled in these cases — that marriage bans cannot survive heightened scrutiny.  A recent federal district court pro-marriage equality decision in Florida will be appealed by that state to the 11th Circuit shortly.

On September 29, the Supreme Court will hold its first conference of the new term to decide which appeals to hear.  Petitions are pending by Utah, Oklahoma and Virginia seeking review of court of appeals rulings from the 10th and 4th Circuits  in favor of marriage equality.  While it is possible that the Court will grant one or more of those petitions early in the term, it might wait to see what develops in the other circuits before moving forward.  However, even if the Court waits until November or December to grant review in  a marriage equality case, it is likely that a decision would be rendered before the end of the Court’s term in June 2015.