VOLUME 4, ISSUE 3 |Jan 20 - 26, 2005

LEGAL


Louisiana Revives Anti-Gay Ban

State Supreme Court says marriage amendment properly framed, even as it limits application

By ARTHUR S. LEONARD

In a pre-referendum ruling, Louisiana Chief Justice Pascal F. Calogero, Jr., had suggested that the amendment might be overly broad from a constitutional basis, but he now agrees with Justice Jeannette Theriot Knoll that the provision blocking same-sex marriage, and perhaps also public employee domestic partnership and civil union arrangements, was properly framed.
The Louisiana Supreme Court ruled on January 19 that the enactment of the Marriage Amendment approved overwhelmingly by the voters on September 18, 2004, does not violate Louisiana’s constitution, so the amendment will go into effect.

Under the terms of the amendment, which went to the voters after resolutions were approved by both houses of the Legislature, Louisiana will neither sanction same-sex marriages nor recognize any enacted in other jurisdictions.

The amendment also provides: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized,” a critical element that shaped the arguments made by its opponents in court.

The ruling overturned an order by a lower court preventing the amendment from going into effect based on the trial judge’s finding that it violated the state constitution because the content of the amendment covered two different “objects.”

Immediately after the vote in September, a group of plaintiffs, led by Forum for Equality PAC and the Louisiana Log Cabin Republicans, filed a lawsuit claiming that the amendment’s enactment violated a state constitution provision which provides that any amendment proposed to the voters have a “single object.” The plaintiffs argued that each of the amendment’s four sentences presented a distinct and separate issue.

Defending the amendment, the state argued that all four sentences related to the overall purpose

of the amendment, defending the traditional institution of marriage of opposite-sex couples in Louisiana from any encroachment by recognition of same-sex unions.

At the district court level, Judge William Morvant disagreed with the plaintiffs that there were four different objects presented by the amendment, but found that there were two—prohibiting same-sex marriage and prohibiting alternative arrangements, such as civil unions and domestic partnerships, from conferring the rights and benefits of marriage on same-sex couples. Since the state constitution prohibited combining more than one issue in an amendment, two was enough to hold the amendment unconstitutional, in Morvant’s view.

But the Supreme Court, in an opinion by Justice Jeannette Theriot Knoll, disagreed with Morvant’s application of prior Louisiana decisions in determining whether the single object rule had been violated. Knoll found some early precedent for making what she saw as the narrow interpretation that Morvant employed, but she pointed to more recent decisions that embraced a broader concept.

Knoll said that current judicial thinking about the single object requirement depends on a “germaneness test.”

“The ‘single object’ rule… requires that an amendment to the Constitution embodies a single plan and that every provision therein is germane to that plan,” she wrote. “In other words, the judiciary in determining whether the legislative action in submitting a constitutional amendment to the people is constitutional under the ‘single object’ requirement must examine all the provisions of an amendment to ascertain whether every provision relates or is germane to the main purpose or object of the amendment.”

In the Supreme Court view, Morvant erred in characterizing the main purpose of the amendment as banning same-sex marriage. Pointing to the Legislature’s labeling of the initiative as a “Defense of Marriage” amendment, Knoll wrote, “Given the clear and unambiguous language of the title adopted by the Legislature, one could logically conclude the object of the amendment is ‘defense of marriage,’” and not merely a ban on same-sex marriage.

According to this line of reasoning, prohibiting the creation of alternative structures to be given the rights of marriage would be seen as advancing the overall goal of preserving traditional heterosexual marriage, and would thus be “germane” to the purpose of the amendment.

This argument casts doubt on the future of domestic partnership registries and benefits for the partners of public employees in Louisiana, which currently exist in New Orleans.

In a prior opinion by the Supreme Court rejecting a pre-election challenge to the amendment, Chief Justice Pascal F. Calogero, Jr., had speculated that the proposed amendment might concern multiple objects since it could be seen as addressing both marriage and civil unions or domestic partnerships, subjects on which the same voter might entertain differing views. At that time, he as much as invited the plaintiffs to resubmit their challenge after the election if the measure passed. But in a brief concurring opinion, Calogero now said he thought the state had the better argument on the question of whether the one object rule had been violated.

The question of how the amendment might impact the rights of same-sex couples in arrangements other than marriage, however, clearly remained on the minds of the justices. Knoll, in a footnote to her majority opinion, and Calogero, in his concurrence, both went out of their way to dismiss one of the significant fears raised by the amendment’s challengers—that the sentence under judicial review regarding alternative arrangements might invalidate all contractual arrangements that same-sex couples make to protect their relationships.

In her footnote, Knoll specifically rejected this contention.

“As noted by the State in its brief to this court,” she wrote, “this constitutional amendment would not impair any property rights, which are not ‘identical or substantially similar to’ the package of unique property rights necessary to marriage. For example, the amendment would not prohibit an unmarried couple (either a same-sex couple or opposite-sex couple) from contracting to be co-owners of certain specific property they purchase together or from contracting with each other to designate each other his/her agent for making critical life or medical decisions for him/her in cases of medical emergencies where he/she might not be conscious or contracting as to one’s power of attorney; nor does this amendment prohibit an unmarried couple from making wills leaving their estates to one another.”

However, the court said nothing directly about what impact the amendment might have on domestic partnership registries or public employer domestic partnership benefit plans. (It will clearly have no direct application to domestic partnership plans adopted by private employers.) The public employer benefit question, left open in Louisiana, is also agitating public employers and employees in several other states where similar amendments were adopted by the voters on November 2, and as yet there are no clear answers how far the new provisions reach.

The Louisiana decision promises to have reverberations beyond that state’s borders, because “single object” challenges to several of the other marriage amendments adopted last year are now pending, and the key question for all of them is whether banning government recognition for non-marital couples presents a distinctly separate policy question from a simple ban on same-sex marriage.

The Louisiana Supreme Court is the first to weigh in, and the first to weigh in is frequently the most influential, in light of the tendency of judges—when called upon to make controversial decisions—to seek cover by citing early decisions.

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