Lessons Congress should learn from VA scandal
July 3, 20144th of July fun abounds
July 3, 2014
In the cozy living room of a brick house in a Raceland subdivision, Cade Blanchard scampers on remarkably steady 18-month-old legs between a visitor and his two moms, playing a self-initiated game of show-and-tell between spoonsful of potatoes, carrots and pot-roast gravy.
Occasionally, he pauses to view a few seconds of “Jake and the Never Land Pirates” on the flat-screen television, then continues a high-energy gambol infused with squeaks, squeals and giggles.
The bubbly, bright-eyed toddler does not know that his home situation is unusual or a reason for controversy. He doesn’t know that his two mothers, Nadine and Courtney Blanchard, are married, nor does he seem to care.
The State of Louisiana doesn’t care either, because – as with all same-sex married couples within its borders, no matter where married – official recognition does not exist.
The Blanchards want to change that, and so are among three couples battling the state in a New Orleans courtroom, seeking a declaration from a federal judge that the voter-approved law defining marriage in Louisiana as between a man and a woman violates the U.S. Constitution.
“We want recognition of our equal rights, that’s what everything is about,” says Courtney, who works for an oilfield marine company. “We want Louisiana to recognize that our marriage is no different than a heterosexual marriage. Here are two people who love each other. How is the state supposed to tell me our relationship is secondary? The federal government accepts our relationship as legitimate and legal, why can’t the state? We file our federal taxes and are recognized as being marred. We technically lie on our state taxes, we have to say we are single even though we are married.”
Other plaintiffs include Jon Robicheaux, a Houma native, and his husband, Derek Penton, both of whom now live in New Orleans. Robert Welles and Garth Beauregard, an unmarried couple from New Orleans together since 1990, were added as plaintiffs after New Orleans officials refused to let them apply for a marriage license in January.
The defendants are Devin George, registrar for the State of Louisiana, Louisiana Revenue Secretary Tim Barfield and Department of Health and Hospitals Secretary Kathy Kliebert. Each of them, according to court papers, is responsible for either denial of recognition for out-of-state same-sex marriages, or for the outright refusal of a Louisiana marriage license.
Attorney General Buddy Caldwell was initially named but determined not to be an appropriate party.
For Courtney and Nadine Blanchard, proof of marriage lives behind the glass of a silver-colored frame, on a shelf beside the family’s kitchen table.
The Iowa marriage license says the women were married on Aug. 30, 2013. They say they were married in their hearts before that, even before the formal commitment ceremony in 2012 where they pledged their love before friends and family members.
A COMPLEX PUZZLE
One of the attorneys representing the Louisiana officials, Mike Johnson of Bossier City, says he has no problem with Iowa’s choice to allow the marriage.
But just as Iowa permits same-sex marriages – albeit only after contentious litigation in the state’s own courts – Louisiana should be permitted its own preference as a state, rather than have its hand forced by a federal court, Johnson maintains.
He sees the case as largely resting on the question of federalism, an approach that suggests Louisiana, as a sovereign entity, has the right to make its own rules regarding marriage.
“There are some very compelling religious and moral arguments to be made in this case,” Johnson said. “There is the matter of traditional institutions and natural marriage that has existed through the whole span of human history. But the state need not present any of those arguments to prevail. What it comes down to, what it is a matter of, is constitutional law.”
Examination of court papers and interviews with attorneys litigating the case reveal a complex puzzle of conflicting laws, interpretations of court decisions and ideologies. While the issues this case and others raise can be deemed simple at the most basic human level, feeding emotional argument on both sides of the equation, the legal puzzles they present are complex, weighty and beyond the scope of sound bites.
Last week the stakes got higher for both sides. Judge Martin Feldman originally restricted argument in the case to the question involving the already-married couples. The questions relating to Beauregard and Welles, the unmarried couple, were slated to be argued at another time.
But after oral arguments, Feldman threw a judicial curve ball, ordering that briefs on the overall marriage question should be prepared and filed to him within 21 days. The judge’s demand was made on the same day that the U.S. Court of Appeal for the 10th Circuit upheld a federal judge’s declaration that Utah’s same-sex marriage ban was unconstitutional, and a federal judge in Indiana declared that state’s same-sex marriage ban unconstitutional as well. Those developments, along with Feldman’s order, caused a combined national and local media stir.
The Indiana and 10th Circuit courts relied heavily for their reasoning on last year’s Supreme Court decision, written by Justice Anthony Kennedy, which struck down a key provision of the federal Defense of Marriage Act. Section III of the act denied a plethora of federal benefits to same-sex couples married in states allowing them to do so.
Johnson says the decision in the DOMA case, United States v. Windsor, strengthens rather than weakens Louisiana’s argument that it has the sovereign right to define marriage within its borders, without federal interference.
“Justice Kennedy pointed out the obvious,” Johnson said in an interview. “By history and tradition, marriage is treated within the authority and realm of the separate states.”
CONSTITUTIONAL BATTLE
The Supreme Court’s task in the Windsor case was to decide whether a specific provision of the Defense of Marriage Act – that defining marriages for federal purposes as those between men and women – violated the constitution. The argument that it did was made on 5th Amendment grounds, maintaining that DOMA violated due process rights of same-sex married couples.
Kennedy wrote for the five-justice majority that New York’s attempt to achieve marriage equality for its citizens – which that state is free to do – was frustrated by the federal government’s own definition of marriage as being strictly between a man and a woman.
According to Johnson’s reasoning Kennedy thus acknowledges the freedom of the states to make their own decisions on what constitutes a legal marriage, a factor that was repeated in the Windsor decision several times in several ways. State autonomy has been cited by legal scholars as a component of the reasoning behind the decision.
Another provision of DOMA, which says states barring same-sex marriages shall not be compelled to recognize those of states that do, remains intact.
The remnants of DOMA are mentioned in the briefs filed by Louisiana in its case, and Johnson’s argument figures heavily into a recently filed Louisiana argument.
“To cut to the chase: if plaintiffs are right that states are constitutionally compelled to recognize same-sex marriage, Windsor (the DOMA decision) makes no sense,” the brief states in its first sentence. “Windsor’s nine-paragraph discussion of states’ historical and essential authority to define the marital relation was wasted ink. Its praise of New York’s ‘statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage’ was window-dressing. Accepting plaintiffs’ claims would effectively overrule Windsor.”
DIFFERING INTERPRETATIONS
While Windsor answered 5th Amendment questions, the case against Louisiana is brought on 14th Amendment grounds, including those that maintain that the rights afforded citizens of one state shall be protected in the others.
“Windsor did not authorize states to violate the 14th Amendment,” is the claim plaintiffs make.
“No one says it did,” Louisiana has argued back. “The point is that Windsor struck down DOMA because the states – not the federal government – decide whether to recognize same-sex marriage.”
Attorneys for the Robicheaux and Blanchard families reject the state’s claim, and call it a “misinterpretation” of the DOMA findings.
“The Supreme Court did not hold in Windsor that state regulation of marriage is beyond the scope of the 14th Amendment,” the attorneys for the plaintiffs state in their pleadings. The Supreme Court’s DOMA holding, the plaintiffs maintain, was grounded in principles of due process and equal protection. That Congress departed from its traditional reliance on state laws to define marriage when DOMA was enacted, the plaintiff attorneys say, was examined by the court because of evidence that the approach was unusual, though not – as the ultimate decision indicated – justifiable.
Injury and indignity caused by DOMA, the attorneys say, was cited by the Supreme Court as a deprivation of 5th Amendment liberties.
In summation, the plaintiffs’ attorneys charge that voter approval of Louisiana’s law denying recognition of same-sex marriages performed in other states does not immunize the state from its duty to provide equal protection under federal law.
The task facing Judge Feldman, in the narrowest sense, is to determine whether Louisiana may do what the federal government must not, and still be in keeping with the federal constitution.
Nadine and Courtney Blanchard are aware of the legal arguments and their complexities. But day-to-day practicalities are what drew them to court. A favorable decision, they say, will solve a number of problems that for them loom large.
The parsing of what Justice Kennedy actually meant in the DOMA decision is, they acknowledge, annoying.
“The facts are out there, however many states that said the bans are unconstitutional, but it’s all about the judge you have, how their decision gets made” is how Nadine sums it up. “They have all gone back and forth saying one thing and no this is what the decision said. That makes it all pretty much a toss-up. If our judge wants to be the rebel then he can do what he wants.”
ABOUT A BOY
Nobody except Justice Kennedy, Nadine notes, really knows what Justice Kennedy meant in the DOMA case.
What makes the case so compelling for the Blanchards is Cade, the center of both of their lives.
Cade was conceived through an anonymous sperm donor. He began as Courtney’s embryo, and transplanted to Nadine. She carried Cade until delivery at Ochsner St. Anne Hospital where, both women note, the staff was supportive, helpful and attentive.
The problem now is that Courtney cannot – under Louisiana law – claim the flesh of her flesh as her own. Louisiana permits married couples to adopt, but does not recognize Courtney’s marriage to Nadine, who is listed as Cade’s mother. As a single person Courtney could adopt, but she is not single.
“I wish they could just simply recognize our marriage so that I can do the adoption, I would be happy,” she said.
The nebulous nature of Courtney’s parental status, she said, raises a number of issues regarding Cade’s welfare that cause great concern, such as if something should happen to her or Nadine.
INSURANCE DENIED
For the other couple named in the case, Jon and Derek Penton-Robicheaux, marriage recognition is a solution to problems not related to child-rearing, but nonetheless important for them.
Jon Robicheaux, a native of Houma and graduate of Ellender High School, has lived with Derek Penton, a Mississippi native, for nearly five years. Jon is a bartender. Derek is a paramedic working for a private company. The home they own together in the Bywater neighborhood of New Orleans and the succession issues that would stem from it got them first thinking about marriage.
But then Jon got sick and required hospitalization, which got the two young men thinking hard about insurance.
“Jon didn’t have insurance,” Derek explained. “I have perfectly good insurance but Louisiana does not recognize our marriage and so doesn’t force my company to recognize it.”
Although many Louisiana insurance plans provide coverage for domestic partners – if an employer opts in for the feature – Derek’s company does not.
A key element of the case brought by attorneys for the couples is the legal history relating to Loving vs. Virginia, the 1967 case declaring that state’s laws against interracial marriage as unconstitutional.
Unlike plaintiffs in the current cases, Mildred and Richard Loving were criminally prosecuted under Virginia’s miscegenation laws.
The case, however, is part of a line of decisions establishing in the eyes of the plaintiff attorneys a fundamental right to marry the person of one’s choice.
“Laws that infringe on the right to marry must be narrowly tailored to promote a legitimate governmental interest, but the Anti-Recognition Laws are not,” a brief for the plaintiffs reads. “Louisiana’s categorical refusal to recognize the Plaintiffs’ valid marriages unconstitutionally infringes their fundamental right to marry.”
CIVIL RIGHT DISPUTED
The Loving case – although heavily cited in federal courts where same-sex marriage has prevailed –should not be viewed as applicable precedent, according to attorneys for the state.
Only five years after Loving, a Louisiana brief states, the Supreme Court “rejected a constitutional right to same-sex marriage. In light of that, a right to marry someone of the same sex cannot be “deeply rooted in this Nation’s history and tradition.”
Both sides of the dispute acknowledged during interviews last week that no matter which way Judge Feldman decides, the 5th Circuit Court of Appeal will ultimately decide the issue. Both sides already say that if Feldman doesn’t rule in their respective favors, they will appeal.
That court has a marriage equality case on its docket already, the result of a federal judge’s declaration that the Texas same-sex marriage ban is unconstitutional.
If the 5th Circuit – one of the most conservative federal appeals courts in the country – declares Louisiana’s laws valid, attorneys acknowledge, the path to the US Supreme Court could become considerably shorter, and traveled more quickly.
That 13 federal district judges have sided with marriage equality, Mike Johnson says, should not be seen as a harbinger of how the nation’s highest justices will rule.
“There has never been such an unprecedented level of activity on such a finite point of law,” Johnson said. “By sheer volume what is occurring here is rare in constitutional law, such a broad-based strategy by interest groups, a united strategy. Emotional fervor behind an issue or a cause has no bearing on its constitutional merits.”
A non-profit organization, freedomtomarry.org, has a well-traveled Web site, and its own Facebook page, which as of Sunday had 394,864 “likes.”
Johnson’s representation of Louisiana meshes well with the organization he directs, FreedomGuardNow, which has its own Web site, FreedomGuardNow.org, but no Facebook page.
NO DESIRE TO MAKE HISTORY
Courtney and Nadine have no doubt that the Supreme Court will be the ultimate arbiter. They have no doubt that the justices will find in their favor.
“It is not whether this is coming but when,” Courtney said. “I think they knew, I think that with the DOMA decision they were inviting this. Years from now people will look back and it will be another issue that nobody even pays attention to anymore.”
Jon and Derek are mindful that they and the other couples are heroes to some – as well as villains to others – and that their case is among those that may profoundly affect history.
But history is not what they set out to make.
“When we started this we knew it would affect a lot of people,” Derek said. “But it was mostly about securing our family. We are humbled by the fact that it affects a lot of people but we didn’t set out to do this for recognition.”
Nadine and Courtney Blanchard hold their 18-month-old son Cade. The Raceland couple is among plaintiffs battling the State of Louisiana in a New Orleans federal courtroom in hopes of having their marriage recognized.
