La. joins Indiana same-sex marriage case as locals await ruling in N.O.

As litigants on all sides – and the nation – await a New Orleans federal judge’s ruling regarding marriage equality in Louisiana, its state officials have loaned a portion of their argument to another state involved with a similar suit.

Local marriage equality supporters, meanwhile, have torn a page from a successful suit in another jurisdiction in their attempt to have same-sex marriages in other states recognized in Louisiana, and for the law limiting marriage to one man and one woman to be struck down.

A ruling could come any day from U.S. District Judge Martin LC Feldman in the Louisiana case, whose plantiffs include a Houma native and his husband, who live in New Orleans, and two Raceland women.

The couples with local roots, Jonathan Robicheaux and Derek Penton and Nadine and Courtney Blanchard, were married in Iowa and seek to have their marriages recognized in Louisiana, their home state. Other plaintiffs had sought to be married in Louisiana but were turned down.

After a trial held strictly on the recognition claims of Robicheaux-Penton and the Blanchards, the judge invited attorneys to submit briefs on the separate question of whether Louisiana must marry same-sex couples, but turned down a later request for additional oral argument.

Since then attorneys for the plaintiffs have requested a partial summary judgment, and in support of that filed a copy of the 4th Circuit U.S. Court of Appeal decision upholding a Virginia federal judge’s finding that failure to recognize same-sex marriages performed in other states and refusal to allow same-sex marriages to be performed “violate the Due Process and Equal Protection clauses of the 14th Amendment.”

Louisiana’s contribution to Indiana’s appeal after the Hoosier State lost a similar suit is one of 10 such filings brought by states that oppose marriage equality or mandates of it by the courts.

At the forefront of their argument is a state’s individual right to determine whether same sex marriage should be permitted.

The brief stresses prior recognition by federal courts that authority over laws regarding marriage lies with the states themselves, meaning that the lower court’s decision “infringes on the important state power to regulate domestic relations.”

Louisiana Attorney General Buddy Caldwell, in filing the brief, joined state attorneys general from Colorado, Alabama, Alaska, Arizona, Idaho, Oklahoma, South Carolina, South Dakota and Utah.

Those same states, including Louisiana, joined in support of the unsuccessful appeal Virginia made to the 4th Circuit, now cited by the Louisiana plaintiffs.

“Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms,” the 4th Circuit opinion states. “Perhaps most notably, in Loving v. Virginia, the Supreme Court invalidated a Virginia law that prohibited white individuals from marrying individuals of other races. The Court explained that ‘the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men’ and that no valid basis justified the Virginia law’s infringement of that right.”

In a lengthy analysis of subsequent jurisprudence, the 4th Circuit concluded that the Supreme Court’s overturn of portions of the federal Defense of Marriage Act made clear that the right to marry in and of itself is constitutionally protected, regardless of gender, or social and legal standings. It was on that basis, the 4th Circuit notes, that laws barring prisoners from being married were overturned.

“If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed,” the 4th Circuit ruled.

The federalism argument, advanced by Louisiana in its own case and exported to Indiana in its joinder on behalf of that state, was approached by the 4th Circuit in a portion of its decision.

“The Constitution does not grant the federal government any authority over domestic relations matters, such as marriage. Accordingly, throughout our country’s history, states have enjoyed the freedom to define and regulate marriage as they see fit,” the 4th Circuit acknowledges.

West Virginia, the 4th Circuit notes, prohibits the marriage of 1st cousins while other states within its jurisdiction do not.

In the landmark DOMA case, U.S. v. Windsor, the Supreme Court emphasized the traditional authority of states over marriage, with the caveat that “state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”

The mere advancement or preservation of federalism, the 4th Circuit ruled, thus cannot trump the violation of individual constitutional rights or the harm to individuals created by Virginia’s same-sex marriage ban.

In its conclusion the 4th Circuit states that the choice of whether and whom to marry “is an intensely personal decision that alters the course of an individual’s life.”

“Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance,” the court says. Windsor does not teach us that federalism principles can justify depriving individuals of their constitutional rights; it reiterates (the) admonition that the states must exercise their authority without trampling constitutional guarantees.

Other points made in defense of Indiana include arguments that:

• The fundamental right to marriage is bound by history and tradition, requiring “a careful description.”

• The right to marry is not boundary-less.

• Traditional marriage definitions seek to encourage social institutions that help avoid the social problems of children being born and raised without both parents around to raise them.

“Not everything that is wrong, not everything that is unfair, not everything that is immoral, even, is unconstitutional,” the brief filed on behalf of Indiana states. “Some problems the constitution leaves to the citizens to resolve through persuasion and discussion rather than litigation. This is one of those cases.”

No matter how Louisiana’s own pending case is decided, legal experts maintain it is likely to end up appealed to the 5th Circuit U.S. Court of Appeals, which is already preparing to view a district court decision that overturned a Texas ban on same-sex marriages.

The 5th Circuit – considered one of the nation’s most conservative – is more likely than others to side with the states seeking to preserve their same-sex marriage bans.

If it does, that could mean a ripening of the issue for consideration by the U.S. Supreme Court, which would then be facing a situation where its preliminary appeals courts were split.