Gay marriage case headed to federal court in N.O.

Same-sex couples hoping to have their marriages from other states recognized in Louisiana will go before a federal judge this week confident that the U.S. Supreme Court has already vindicated their argument. And the lawyers defending Louisiana’s ban on gay marriage will feel exactly the same way.

As with nearly identical cases working their way through other courtrooms across the country, the future of legal rights for same-sex couples in this state will come down to how a judge chooses to interpret the Supreme Court’s decision last year in United States v. Windsor, which required the federal government to recognize gay marriages performed in states where those marriages are allowed.

Six Louisiana couples will argue that the Supreme Court’s decision means Louisiana must recognize their marriages from other states, just as the federal government now does.

A victory for those couples would not necessarily mean that same-sex couples could get a marriage license in Louisiana, but those married legally elsewhere could adopt children in Louisiana together, file joint tax returns and enjoy other benefits extended to opposite-sex couples.

Lawyers for Attorney General Buddy Caldwell and the other named defendants will make the case that while the federal government may have to recognize all legal marriages, the Windsor ruling explicitly left it up to voters to decide whether gay marriage should be allowed in individual states.

In doing so, they also will be arguing that federal judges have gotten the question dead wrong in states such as Kentucky, Oklahoma, Virginia and Utah, where a rapid succession of court victories has given gay-rights activists hope that all barriers to marriage equality in the U.S. are falling, even if it may ultimately take another Supreme Court decision to finally wipe them out.

Whatever U.S. District Judge Martin Feldman decides after hearing oral arguments Wednesday, both sides see a major reckoning at hand.

“Everything is up in the air,” said Kyle Duncan, the attorney hired by Caldwell to defend Louisiana’s ban on same-sex marriage. “It’s a remarkable moment for constitutional law to see all of these decisions coming out around the same time.”

Duncan, of course, believes the reasoning behind all of those decisions has been flawed.

Two separate but closely related questions are at issue: whether gay couples should be allowed to marry in a particular state, and whether same-sex marriages performed in states where it is legal then have to be recognized in states where it is not.

Some lawsuits have targeted marriage rights head-on, while others have gone after only recognition. So far, both arguments have been successful in district courts, where judges have relied heavily on the Supreme Court’s Windsor precedent.

The case for recognition is this: If the federal government has to recognize a same-sex marriage performed legally in, say, New York, as the Supreme Court last year said it must, then so should Louisiana. After all, the state must acknowledge the marriage of a traditional couple who wed in New York, so to single out only gay couples would run afoul of the U.S. Constitution’s guarantee of equal protection under the law.

By the same logic, some judges have decided that states cannot hand out marriage licenses to one type of couple and not another, striking down state bans on same-sex marriage in Wisconsin, Michigan, Virginia and elsewhere.

“Generally speaking, the government cannot treat different groups of citizens differently,” said Chris Otten, chairman-elect of the Forum for Equality Louisiana, which brought one of two cases now consolidated before Feldman.

Meanwhile, states hoping to keep same-sex marriage bans in place are pinning their argument on the same Windsor decision.

Justice Anthony Kennedy may have written that singling out same-sex marriages “demeans” gay couples and “humiliates” the children already being raised by them. But he also wrote that the states have a “historic and essential authority to define the marital relation.”

The state’s court filing in defense of Louisiana’s same-sex marriage ban seizes on that authority. “The people in some states have recently used that authority to adopt same-sex marriage; most have not,” it points out. “That is our constitution at work.”

Whichever argument Feldman sides with, the case will almost certainly go next to the 5th U.S. Circuit Court of Appeals, which hears cases from Louisiana, Texas and Mississippi.

There seems little chance that Feldman’s ruling will have an immediate effect before the appeals process plays out. None of the couples in the case are asking for the right to marry in Louisiana, so the judge’s ruling is likely to be confined to recognition of existing marriages.

And even in states where couples have won such recognition cases, district judges often have put a stay on their decisions pending circuit court review, hoping to avoid chaos in the interim.

Once Feldman makes a decision on the Louisiana case, the 5th Circuit will have to sort out how to handle that case and a similar one that’s already been appealed from Texas, which includes both a couple hoping to marry in Texas and another hoping to have their marriage elsewhere recognized.

The 6th U.S. Circuit Court of Appeals is in a similar position. It has five different cases before it, from Ohio, Michigan, Kentucky and Tennessee. The court will decide on each case individually, but the same panel of judges will hear arguments in a single session, aiming to deliver a consistent set of rulings.

Just as in Louisiana, the couples from Ohio are suing only for recognition of existing marriages, while those from Michigan want to get married in that state. But attorneys involved say there is an outside chance that if the 6th Circuit allows couples to marry in Michigan, then the ban in other states in the 6th Circuit could, more or less, fall automatically.

“An attorney general is free, if he reads a strong, sweeping decision, to decide to interpret that as binding law in Ohio,” said Al Gerhardstein, a lawyer representing plaintiffs in two Ohio cases.

Not that Gerhardstein is counting on it. He has another lawsuit pending in Ohio, still at the district court level, that goes directly after marriage rights and should be decided by late summer, he said.

It also would be significant for Louisiana if the 6th Circuit were to issue a ruling that runs contrary to what the 5th Circuit, or any other circuit court, decides. That’s because the Supreme Court tends to step in when circuit courts split on cases with similar issues involved.

In the Windsor decision, the Supreme Court stopped short of ruling on a fundamental question: whether the U.S. Constitution guarantees gay couples the right to marry, states’ rights aside. But the swarm of legal challenges that have followed may force the justices to decide just that.

Editor’s note: This story was altered on Monday, June 23, to reflect Chris Otten’s correct title and the name of his organization, the Forum for Equality Louisiana.