“If I have seen further than others, it is by standing upon the shoulders of giants.” ~Isaac Newton
After the US Supreme Court decision in Windsor vs United States, the Forum For Equality Louisiana (of which I am Chair of the board) formed a Legal Committee to explore filing our own challenge to Louisiana’s refusal to recognize lawful and valid marriages performed in other states.
The Legal Committee took several months of deliberation; taking time to consider the political landscape, the best legal arguments, the chances of success. They located plaintiffs in four couples who had been harmed and were able to get one of Louisiana’s premier law firms (Stone Pigman Walther Whittmann) to take on the case.
Yesterday we went to US District Court, Eastern District of Louisiana to argue for marriage equality.
The crux of the case is as follows:
The basis of the equal protection violation claim is that Louisiana recognizes marriages legally performed elsewhere, including marriages that cannot be entered into inside the state, such as marriages between first cousins or common-law marriages. Louisiana singles out only same-sex marriages for unequal treatment, a violation of the constitutional guarantees of equal protection and due process.
The couples are also forced to break Louisiana law requiring them to file their state income tax returns based on their federal returns. Instead of piggy-backing on their joint returns filed with the federal government as all other married couples, same-sex couples must go to the extra expense of creating fictitious federal returns in order to file their state return, a violation of their First Amendment rights of free speech.
“Louisiana’s disparate treatment of same-sex and opposite-sex couples who are married outside of Louisiana demonstrates that the purpose of the Louisiana Anti-Recognition Laws is to ‘impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages’ that were lawfully celebrated in other states,” according to the lawsuit.
Judge Feldman asked questions of both sides. While I was disturbed about the questions comparing state bans against same-sex marriage to bans against incest, his questions showed that he was very familiar with the Windsor decision and the 13 (now 15 as of this morning) other Federal court decisions on marriage equality. He appeared to dismiss comparisons to the Loving v Virginia case and openly wondered of the ‘evolving understanding of equality’ as it applied to same-sex couples.
The State of Louisiana’s argument seemed to focus exclusively on seven pages of Windsor that they believe uphold state rights to define marriage through the formation of consensus. Kyle Duncan argued the other 13 judges who have ruled in favor of marriage equality have misread the Supreme Court decision. While he agreed that the plaintiffs were aggrieved, he believed any changes to Louisiana state law should come from the democratic process.
We did not expect Judge Feldman to broaden the case as he did at the end of the oral arguments by bringing in another challenge (this one with plaintiffs who attempted to get a marriage license in Louisiana and were turned down) but we’ll have a chance to file supplemental briefs on July 16th to answer the outstanding issues.
We owe great thanks to the legal team at Stone Pigman Walther Wittmann – Dalton Courson, Lesli Harris, John Landis and the others who have been brilliant in their handling of the lawsuit. We also want to thank those who filed amicus briefs in support of our lawsuit – including the City of New Orleans, Donaldson Adoption Institute, Lambda Legal, National Center for Lesbian Rights, OutServe, and ACLU-Louisiana.