Following a string of federal court victories, the same-sex marriage movement was dealt a major setback Sept. 3 when U.S. District Judge Martin Feldman upheld Louisiana's ban on same-sex marriages. Feldman ruled that the plaintiffs failed to prove that the ban violated either Equal Protection or Due Process constitutional safeguards.
Attorneys for the plaintiffs announced their intention to file a notice of appeal with the U.S. Fifth Circuit Court of Appeals the next morning. The case ultimately could go to the U.S. Supreme Court, depending on how (and when) the High Court rules on pending same-sex marriage cases that are farther along in the judicial pipeline.
In 2004, the Louisiana Legislature voted to ban same-sex marriage and civil unions. Louisiana voters added the ban to the state constitution later that year. Feldman's ruling last week in the case of Robicheaux v. Caldwell means Louisiana can continue to refuse to recognize same-sex marriages solemnized in other states.
Feldman's decision came roughly four months after he combined two same-sex marriages cases — one filed in New Orleans and one filed in Shreveport. The suits were brought by the gay rights organization Forum For Equality Louisiana and six same-sex couples whose marriages had been solemnized in other states:
• Jacqueline and Lauren Brettner of New Orleans (married in New York in 2012);
• Nick Van Sickels and Andrew Bond of New Orleans (married in Washington, D.C. in 2012);
• Henry Lambert and Carey Bond (no relation to Andrew Bond) of New Orleans (married in New York in 2011);
• Derek Penton-Robicheaux and Jon Penton-Robicheaux of New Orleans (married in Iowa in 2012);
• Courtney and Nadine Blanchard of Raceland (married in Iowa in 2013); and
• Havard Scott and Sergio March Prieto of Shreveport (married in Vermont in 2010).
Feldman joined the two cases in June, saying he did not want to make a "piecemeal" ruling but preferred to address the state's constitutional ban directly. At that time, Jacqueline Brettner told Gambit, "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 added, "I look forward to being on the right side of history."
In a statement following last week's ruling, Brettner said, "Today's decision, while disappointing, was not unexpected. It shows the importance of the challenge and why it is necessary to seek equal protection for all LGBT citizens of Louisiana."
Lambert, a decorated Vietnam War veteran and respected New Orleans developer, said he was particularly disappointed at Feldman's decision to put together two cases that raised distinct issues. "The court's decision to join two cases — one seeking to overturn the constitutional amendment and one just asking for equal recognition of marriages that are legal in other states — condemned the judgment to missing the point," Lambert said.
Lambert and Bond sought to have the Louisiana Department of Revenue accept their 2012 joint state income tax return, which the state refused to do. "I think the decision missed the opportunity to enforce the notion that people married in another state have the same right to file a joint return as people married in Louisiana," Lambert said. "The judgment never addressed that."
Conservatives praised the ruling.
"This ruling confirms that the people of Louisiana — not the federal courts — have the constitutional right to decide how marriage is defined in this state," Gene Mills, head of the Louisiana Family Forum, said in a statement that also thanked state Attorney General Buddy Caldwell and his special counsel, Kyle Duncan and Mike Johnson, for a "job well done."
Feldman noted at the outset of his 32-page opinion that the case presented a "passionately charged national issue." Later in the ruling, he said the national debate over same-sex marriage "animates 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. ... These are earnest and thoughtful disputes, but they have become society's latest short fuse."
Feldman rejected the plaintiff's Equal Protection and Due Process arguments, but before doing so he devoted several pages to the all-important question of the appropriate "standard of review" or level of judicial scrutiny to be applied to the laws under attack. There are three levels of scrutiny in constitutional law — rational basis scrutiny, intermediate scrutiny and heightened or strict scrutiny. The level of scrutiny used by the courts often determines the outcome of a case.
"Rational basis is the least austere; heightened scrutiny the most arduous," Feldman wrote. The judge applied the lower "rational basis" scrutiny to both the Equal Protection and Due Process challenges. That level of scrutiny is the most deferential to the laws under attack. Citing U.S. Supreme Court precedent, Feldman wrote that Louisiana's law should be upheld "if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale seems tenuous."
In analyzing the plaintiffs' claims, Feldman wrote that "neither the Supreme Court nor the Fifth Circuit has ever before defined sexual orientation as a protected class, despite opportunities to do so. ... In light of still-binding precedent, this Court declines to fashion a new suspect class. To do so would distort precedent and demean the democratic process."
In addressing the plaintiffs' claim that they were being denied a "fundamental right," Feldman wrote, "Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental."
“We’re going to appeal this decision, and we’re confident a positive ruling will be made.”
— Forum for Equality Director Sarah Jane Brady
Feldman's ruling was a major setback for same-sex marriage proponents, who had been buoyed recently by more than a dozen court rulings in their favor. Last year the U.S. Supreme Court voided the federal Defense of Marriage Act (DOMA) in the case of U.S. v. Windsor. DOMA defined marriage as a union between one man and one woman only. In the Windsor case, the High Court held that DOMA violated the Equal Protection and Due Process clauses — and that it interfered with New York state's sovereign authority to define marriage within its borders.
"But Windsor does little more than give both sides in this case something to hope for," Feldman wrote in his opinion. In a footnote, he said that Windsor is "unclear" in the context of the case before him and "is by its own terms, limited." The judge went on to note that Windsor actually upheld a state's sovereign right to define marriage within its borders — a point hammered by the state's legal team.
Although it was small consolation to the plaintiffs, Feldman admitted — in a footnote — that his ruling "runs counter to all but two other federal court decisions" on the issue of same-sex marriage.
Shortly after Feldman's ruling was made public, the Human Rights Campaign, a pro-LGBT group, said in a statement, "Since the Supreme Court's historic marriage rulings last year, there have been 21 consecutive federal court decisions that bans on marriage equality are unconstitutional until today's decision out of Louisiana."
Bond, one of the plaintiffs, said the ruling was "immoral."
"You work hard your whole life and do the right thing, you try to support your community and make your city better — I was in the reserves in the Vietnam War — and now I feel as though I just lost all the rights that were given to me by the Founding Fathers, especially the right to be treated equally," Bond said.
Louisiana politicians are largely opposed to same-sex marriage. Gov. Bobby Jindal and U.S. Sen. David Vitter, both Republicans, are staunch foes of such unions. U.S. Sen. Mary Landrieu, a Democrat up for re-election in a red-trending state, has supported civil unions but recently was one of only three Democratic senators not to endorse same-sex marriage. In a March statement, Landrieu said, "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."
More recently, Mayor Mitch Landrieu came out in favor of same-sex marriage, adding his name to a list of hundreds of American mayors on the "Freedom to Marry" website. The City of New Orleans also filed an amicus brief in the Robicheaux case, siding with the plaintiffs.
With the filing of the notice of appeal, the plaintiffs have signaled that this fight is far from over.
"I think so many people are misguided about what we are asking for," Bond said. "We're not trying to push ourselves into anything. We're just asking to be treated the same as any other human beings."
Late afternoon on Sept. 3, more than 100 people gathered outside Jackson Square to protest the ruling, waving rainbow and state flags and holding signs with messages of support for same-sex couples or protesting against Feldman's decision. Susan Chapman rallied with her partner Thea Mars, who held a sign reading "This is not your church" with a photograph of the U.S. Capitol.
Members of Forum For Equality, the Human Rights Campaign (HRC), the New Orleans LGBT Community Center and Parents and Friends of Lesbians and Gays — as well as the couples listed as plaintiffs in the lawsuit that attempts to strike down the law — hosted the rally.
Mary Griggs, chairwoman of Forum For Equality, said Feldman's decision "flies in the face" of decisions in 20 other states allowing same-sex marriages. "We're disappointed, but we're moving forward," said Forum For Equality Director Sarah Jane Brady. "We're going to appeal this decision, and we're confident a positive ruling will be made."
"It's a shame we're not here celebrating," Ariel David, a board member of the LGBT Community Center, told the crowd, adding that despite serving in the Navy in Iraq and Afghanistan, she is not able to get married at home.
The HRC's Lester Perryman also addressed the crowd on a megaphone, saying, "Today you were told you are a second-class citizen, that the love for your partners is second-rate. ... Instead of standing on the right side of history, (Feldman) chose the crowd of bigotry and oppression."
"The fight's not over," he told Gambit. "We will prevail at the Supreme Court. This case proves even more that the Supreme Court needs to take it up."
Plaintiffs echoed that their fight continues in the appeals process. "It's a small bump on a long road," plaintiff Derek Penton-Robicheaux told Gambit. "We started this over a year ago, and we're going to see it through." Richard Perque, attorney for Derek and Jon Penton-Robicheaux, said they will file an appeal as early as the this week.
"We had a 50-50 shot," said plaintiff Jacqueline Brettner. "Now is the time for equality. Today's decision is not going to stop it."