Jacqueline Brettner (center) married her partner Lauren (not pictured) in New York in 2012. They are among the six same-sex couples listed as plaintiffs in a lawsuit against Louisiana to recognize same-sex marriages.
Attorneys and supporters filled U.S. District Court in downtown New Orleans June 25 to hear arguments for and against Louisiana's refusal to recognize out-of-state same-sex marriages. After more than an hour of oral arguments over recognition of those marriages, U.S. District Judge Martin Feldman surprised the courtroom when he declared he would not make a "piecemeal" ruling on same-sex marriages. Instead, he will rule on the state's constitutional ban on performing those marriages as well.
"All of the prior discussions we had had, we thought it was fairly narrow what he was going to be deciding, which was recognizing out-of-state marriages," said Mary Griggs, chairwoman of Forum For Equality, which filed the lawsuit against the state along with six same-sex couples. "I thought that was surprising."
"This is a big surprise," echoed Forum For Equality's past chairman John Hill. "He originally asked for briefs from arguments in the recognition issue. Today he said, 'No, I don't want to do this, I want to make a global decision and not do it piecemeal.'"
Feldman has yet to issue a timetable for more hearings. Plaintiffs Jacqueline Brettner and her partner Lauren were married in New York in 2012, and Jacqueline and the suit's other plaintiffs appeared at last week's hearings in Feldman's court.
"If I had to ask any of my heterosexual friends in an opposite sex marriage, which of their fundamental rights they would be willing to put to a vote, I think that would be a very difficult question to answer, if not impossible," she said. "If you ask the same people which of their fundamental rights with respect to their spouse or even their children they would be willing to put to a popular vote on the 50-50 chance they could lose it, I think that's an impossible question. ... The court and all of those who argued today did a very good job of putting those issues before the court and I look forward to being on the right side of history."
American public opinion on same-sex marriage has shifted dramatically in recent years. In 1996, a Gallup poll found that more than two in three Americans did not believe that same-sex marriage should be "recognized by the law as valid." In a May 2014 poll by Gallup, a majority of Americans — 55 percent — supported legalizing same-sex marriage nationally. Among respondents 18 to 29 years old, it was a landslide, with 78 percent in favor.
The picture in Louisiana, however, is different. In 2004, voters amended the state constitution to outlaw same-sex marriage as well as civil unions, and this year's Gallup poll found that Southern states are the only region of the country where same-sex marriage support is not in the majority (48 percent).
Just last month, Mayor Mitch Landrieu — who has long supported civil unions for same-sex couples — quietly added his name to the "Mayors for the Freedom to Marry" website, a list of hundreds of U.S. mayors in favor of same-sex marriage. In a statement, Landrieu spokesman Tyler Gamble wrote, "The Mayor has long supported ending marriage discrimination at all levels of government. As an employer, the City of New Orleans recognizes domestic partnerships and allows our employees' partners to be eligible for benefits. The City has an interest in strengthening and supporting all caring, committed and responsible family forms, which is why the City signed an amicus brief in support of the Robicheaux case now pending in federal court."
The plaintiffs in that case include Jon Robicheaux and Derek Penton (married in Iowa in 2012), Courtney and Nadine Blanchard (married in Iowa in 2013), Nick Van Sickels and Andrew Bond (married in Washington D.C. in 2012), Henry Lambert and Carey Bond (married in New York in 2011), and Harvard Scott and Sergio March Prieto (married in Vermont in 2010).
While President Barack Obama spoke in favor of same-sex marriage in 2012, and many in the Democratic party joined him, U.S. Sen. Mary Landrieu is one of only three Democratic senators who have not spoken out on the issue — though her position has softened. Landrieu, who has publicly supported civil unions, issued a statement in March saying, "The people of Louisiana have made clear that marriage in our state is restricted to one man and one woman. While my personal views have evolved, I will support the outcome of Louisiana's recent vote." Her Republican counterpart, U.S. Sen. David Vitter, is against same-sex marriage; Vitter has proposed to amend the U.S. Constitution to ban the practice. "I don't believe there's any issue as important as this one," Vitter said in 2006.
Gov. Bobby Jindal, meanwhile, has always been against same-sex marriage. He recently doubled down on the position in stump speeches across the country. "The reality is today we're talking about redefining marriage," he told a crowd in Iowa in 2012 (where a ruling by the state Supreme Court there legalized same-sex marriage in 2009). "If the court is allowed to impose and write their own laws and their own views ... tomorrow it may be property rights, maybe it's Second Amendment rights. We have got to take a stand against judicial activism."
Plaintiffs in the current suit and their attorneys have pointed to the 2013 U.S. Supreme Court decision in U.S. v. Windsor, which held that the federal definition of marriage between heterosexual couples is unconstitutional. Attorneys for the state argue that the Windsor decision leaves those definitions to the rights of the state.
Chris Otten, chair-elect for Forum For Equality, said he expects Feldman will issue a "thorough and well-reasoned opinion," though he stopped short of guessing how Feldman might rule. "It's premature to opine on that," Otten said. "It was evident today he was well-prepared and attorneys on both sides were well-prepared. I don't think anything was left on the table today."
While Feldman held the hearing last week, another federal judge struck down the same-sex marriage ban in Indiana, making that state the 20th (including Washington, D.C.) to legalize the practice and allowing marriages to begin immediately (though the state announced its intention to appeal). Meanwhile, a three-judge panel of the U.S. 10th Circuit Court of Appeals upheld a lower court ruling that struck down a ban in Utah, saying Utah's constitutional ban on same-sex marriage (similar to Louisiana's) violated the U.S. Constitution.
"We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws," Judge Carlos F. Lucero wrote in the decision. "A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. ... We agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married."
Griggs said she hopes the decisions "have an impact" on Feldman's ruling. In legal parlance, a decision from another federal circuit is a "persuasive" but not necessarily "binding" precedent. Louisiana is in the federal system's 5th Circuit, which is widely considered the nation's most conservative appellate court.
Tony Perkins, a former Louisiana state representative and staunch same-sex marriage opponent, now heads the Washington D.C.-based lobbying group Family Research Council. Perkins issued his own statement on the recent federal court decisions affecting Indiana and Utah: "Today's marriage rulings come as no surprise given the rising disdain for the rule of law promoted by the Obama Administration. While judges can, by judicial fiat, declare same-sex 'marriage' legal, they will never be able to make it right. The courts, for all their power, can't overturn natural law." Perkins added that Americans are "tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants."
For plaintiff Jacqueline Brettner, however, the hearing in Feldman's court — decision or not — was intensely personal. "I didn't expect to get emotional," she said. "Walking here today, it hit me how important it is, not just as a parent ... but as a human being.
"It's something we live with every day, it's something that permeates dropping off at school, leaving the country for a trip — these are decisions and questions posed to us on a regular basis, that other people thankfully get to take for granted. All we want is the opportunity to have that same feeling."