By Marcus Rodrigue
A federal judge’s ruling last month upholding Louisiana’s constitutional ban on same-sex marriage apparently also extends to civil unions and perhaps even joint property rights, according to legal experts and lawyers close to the case.
Judge Martin Feldman’s Sept. 3 decision was appealed to the Fifth Circuit Court of Appeals. Louisiana’s constitutional amendment makes legal only those marriages that are “a union of one man and one woman.”
However, Louisiana’s ban goes further than most. It also asserts that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” It also prohibits legal recognition marriage or alternative marriage status granted to same-sex couples in states where it is legal.
These alternative statuses — primarily civil unions, domestic partnerships and registered partnerships — traditionally have provided couples the same legal rights and benefits as married couples.
Refusing legal recognition to same-sex marriages from states where they are legal was at the heart of a decision Sept. 22 by State District Judge Edward Rubin of Lafayette, who ruled such a ban is unconstitutional.
Andrea Carroll, a law professor at LSU who specializes in family law, said the provision regarding statuses “substantially similar to that of marriage” directly targets those alternative statuses.
“That language was drafted with reference to what was going on in other states,” Carroll said. “I’m not aware of anything that says specifically [banning civil unions], but it’s well known to everyone who was an expert in the area at the time of drafting [of the legislation that put the issue on the ballot] that that is what it means. The reason it uses that ‘substantially similar’ language is that these things are called by different names in other states.
“We could not have said ‘civil unions are not permissible here or domestic partnerships are not permissible here’ because it would just be called something else.” Carroll added that lawmakers used that phrasing to include any same-sex union by any other name.
Though the meaning of the amendment’s language is understood in legal circles, Carroll said where the ban stops is less clear.
The Louisiana Attorney General’s Office, which defended the state’s constitutional amendment in the two court cases, declined to comment on the matter.
Baton Rouge Attorney Terry Ryder sees problems with the amendment and finds the language vague.
Ryder was executive counsel to former Louisiana Governor Kathleen Blanco when the amendment originally passed in September 2004. He knew the authors of the bill — Steve Scalise, who represents Louisiana in the U.S. House of Representatives, and the now-deceased John Hainkel, who was president of the Louisiana State Senate when the amendment passed.
“Even in 2004 when I went to talk to Sen. Hainkel, I told him that to me it was probably an equal protection problem across the board under the federal Constitution,” Ryder said. “But I particularly thought [the provision banning civil unions] was repugnant, and clearly violated the Equal Protection Clause.”
Scalise did not respond to phone calls and emails requesting comment.
Four previously married same-sex couples and the advocacy group Forum for Equality Louisiana filed a lawsuit last February challenging if the state’s amendment prohibiting same-sex marriage was constitutional. But Feldman upheld the amendment, ending a string of federal district court rulings in favor of same-sex marriage.
Rubin’s contrary decision does not overturn Louisiana’s ban on same-sex marriage and alternative statuses, but other means of attaining benefits exist for same-sex couples.
“The constitutional amendment would not prohibit cities and municipalities from extending benefits such as a domestic partnership registry, which New Orleans has,” said Chris Otten, chair-elect of the Forum for Equality Louisiana lawyer’s committee.
“As long as the amendment is in force, it simply says that Louisiana as a state doesn’t have any marital regime, so cities can establish domestic partnership registries. But same-sex couples would still be denied 95 percent of the benefits of marriage.”
When the Forum for Equality appealed the amendment following its enactment in 2004, the court upheld it but issued a footnote saying domestic partnership registries do not violate the ban.
Otten and Carroll said cities can offer domestic partnerships to-same sex couples because the Louisiana constitutional amendment prohibits only the state – not local entities — from recognizing alternative statuses.
New Orleans is the only city in Louisiana with a domestic partnership registry, and the city extends health insurance benefits to its employees who are registered. But non-city government employees don’t receive these benefits even if they are registered. In those cases, said Otten, a domestic partnership license is “just a piece of paper without any real effects.”
Otten likened the city of New Orleans to private employers who are not restricted from providing benefits to same-sex couples. However, Louisiana grants no tax or legal rights to same-sex couples, even if they legally married out of state.
“There are too many [rights withheld from same-sex couples] to count,” Otten said. “There are literally hundreds of benefits that flow from marriage that same-sex couples are denied [in Louisiana].”
One greatly sought-after benefit by same-sex couples is the ability to file joint state income taxes, which was one of the bases for the case heard by Feldman. Under Louisiana’s constitutional amendment, same-sex couples legally married elsewhere can file joint federal income taxes but are required to file separate state income taxes.
That restriction applies to Andrew Bond and Nick Van Sickels, who were plaintiffs in the Feldman case. They married in Washington, D.C., in 2013 following the Supreme Court decision in U.S. v. Windsor, which declared a federal definition of marriage as between one man and one woman unconstitutional and deferred on deciding whether states can restrict marriage.
But Bond and Van Sickels are legally single under Louisiana law, and Bond has limited rights to care for their 3-year-old daughter, Jules. The state amendment prohibits joint adoption by same-sex couples, so Van Sickels alone adopted Jules in 2012 and remains the only legal parent.
“Should Nick die, I’d have to rely on my own private efforts to prove that I have some connection to my daughter, whereas the state doesn’t give me any recognition,” Bond said.
Most of the public discussion in the two cases has centered on the issue of marriage, but a broader issue exists beyond the public eye — it’s still unclear how much is encompassed in the state’s constitutional ban upheld by Feldman.
Carroll said some lawyers have claimed that private contracts between same-sex couples that resemble the rights and duties of marriage as defined by Louisiana could also pose problems.
“There’s some argument the language [in the amendment] even precludes gay couples from [entering into] a so-called cohabitation contract to address their property relationship,” Carroll said. “No Louisiana court has said that yet, but that would be a pretty big step.”