La. same-sex couples, married legally elsewhere, sue to be recognized here

One of the state’s most prominent gay-rights groups filed a lawsuit Wednesday in federal court arguing Louisiana is violating the U.S. Constitution by refusing to recognize same-sex marriages performed legally in other states.

If the challenge by the Forum for Equality, based in New Orleans, is successful, same-sex couples who marry in any of the states — currently 17 — that allow such unions would remain legally wed after moving or returning to Louisiana, and would be eligible for all the benefits afforded heterosexual couples, including the right to file joint tax returns or hold joint custody of children.

The case could intensify debate over same-sex marriage and gay rights in a state generally seen as growing more conservative — even as the federal government extends more benefits to gay couples and more states shift toward outright legalization.

Louisianians voted overwhelmingly a decade ago to enshrine traditional marriage between a man and woman in the state’s constitution, one of more than 30 states that have done so, and recent polling showed fewer than a quarter of people in the state approved of legalizing same-sex marriage.

In a statement Wednesday, Gene Mills, head of the influential Louisiana Family Forum, blasted the new lawsuit, calling it “another attempt to usurp the will of the people in Louisiana.”

The Forum for Equality is bringing the challenge along with four pairs of same-sex couples who married in other states or the District of Columbia but have been denied benefits in Louisiana.

As in dozens of similar lawsuits across the U.S., the group will rely on the reasoning of a landmark U.S. Supreme Court decision striking down the federal Defense of Marriage Act last year. But in what the group believes could be a first-of-its kind approach, the couples are also basing their case on the First Amendment, arguing that Louisiana is coercing them into lying about their status on tax returns.

That’s because the Supreme Court decision created somewhat of a paradox: Louisiana won’t allow same-sex couples to file a joint tax return, but it requires that their state returns match their federal returns — which same-sex married couples can now file jointly.

“Same-sex couples should not fear that their spouse, child or family will be treated any differently under the law,” Sarah Jane Brady, the Forum for Equality’s executive director, said at a press conference. “This is as basic as the Golden Rule: treating others as one would want to be treated, including extending all rights and privileges of marriage to lesbian and gay couples.”

Three of the four couples included in the lawsuit attended the press conference, telling stories about how they met and explaining why they decided to challenge Louisiana’s policies. Two of the couples said their primary motivation was to gain custody of children; one brought along a blonde, apple-cheeked toddler they’ve adopted.

Andrew Bond, who married Nick Van Sickles last year in Washington, D.C., noted that Louisiana gives him a form of provisional custody over their adopted daughter, but it has to be renewed each year and leaves open the possibility that he could lose custody altogether if Sickles dies. “Fundamentally, I am not her father,” he said.

In recruiting couples who have already gotten married elsewhere — rather than same-sex couples who want to get married in Louisiana — the Forum for Equality is taking a more conservative legal strategy than some groups and individuals in other states. It wants Louisiana to recognize existing legal marriages and is not asking clerks of court in Louisiana to start handing out marriage licenses to same-sex couples.

The group has been studying how to proceed in Louisiana since shortly after the Supreme Court struck down the Defense of Marriage Act in June 2013, finally deciding on the advice of its attorneys that Louisiana’s refusal to grant benefits to couples married elsewhere might be the state’s “Achilles’ heel,” said John Hill, the forum’s chairman.

In part, the lawsuit argues that the same logic Justice Anthony Kennedy applied in United States v. Windsor applies in Louisiana. In his majority opinion for the Supreme Court, Kennedy said the federal government could not, without any “legitimate purpose,” deny same-sex couples federal benefits if their state had legally married them. To do so, he argued, would violate the equal-protection clause of the 14th Amendment, treating one class of marriages as “less respected than others.”

The Defense of Marriage Act “is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote.

That immediately raised the question: If the federal government must recognize a marriage issued by one of the states, wouldn’t another state also have to recognize that marriage, or risk injuring the same “personhood and dignity” recognized elsewhere?

In his dissenting opinion, Justice Antonin Scalia predicted that Kennedy’s argument would in fact give ammunition to anyone hoping to challenge the constitutionality of state laws. He wrote, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

The lawsuit filed Wednesday, which was assigned to U.S. District Court Judge Martin Feldman in New Orleans, argues that same-sex marriages are singled out by Louisiana in an even more egregious way than the federal government had done. It points out that Louisiana has a long history of recognizing marriages performed in other states that wouldn’t be legal here, including the marriages of first cousins.

“For opposite-sex couples,” the lawsuit notes, “Louisiana public policy is to make every effort to uphold the validity of their marriages.”

Tim Barfield, secretary of the Louisiana Department of Revenue and a named defendant in the lawsuit, said he will stick to the letter of the state’s constitution until the courts give a final ruling on the challenge. But he said he didn’t think Louisiana law would be invalidated, noting that even the majority of Supreme Court justices left it to individual states to define marriage without federal interference.

Some other legal experts said the lawsuit has a good chance of succeeding, noting the language of Kennedy’s opinion and recent court decisions in other states. Coincidentally, a group of gay and lesbian couples in Kentucky, pursuing a nearly identical case, won a favorable ruling Wednesday just a few hours after the Louisiana lawsuit was filed.

In that case, U.S. District Judge John G. Heyburn II ruled that Kentucky must recognize same-sex marriages performed in other states. He wrote that Kentucky’s existing “laws treat gay and lesbian persons differently in a way that demeans them.”

Keith Werhan, a constitutional law professor at Tulane University, said the Supreme Court’s decision is likely to leave federal judges without much leeway to rule otherwise in similar cases.

“In DOMA, the Supreme Court said the U.S. has no legitimate basis for denying recognition of marriages that take place lawfully within the states,” Werhan said. “It’s not clear why a state would have more power than the U.S. would.”

The Louisiana Legislature passed a constitutional amendment banning gay marriage in 2004, and it was approved in a voter referendum by a nearly 4-to-1 margin. It reads in part: “No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.”

Gay-rights organizations protested the amendment at the time. The Forum for Equality brought an unsuccessful legal challenge and warned that gay couples could be blocked from owning property together, passing on estates to one another after death or making important medical decisions for one another during emergencies.

In some ways, the legal tangle that gay and lesbian couples find themselves in has only intensified with last year’s Supreme Court decision and the increasing number of states that have legalized same-sex marriage, said Kenneth Upton, senior legal counsel for the South Central Regional Office of Lambda Legal, an LGBT rights group.

Upton pointed out that to receive the Social Security benefits of a deceased partner, the survivor has to be the recognized spouse in the state where they live, not the state where they got married. On the other hand, to receive military benefits it only matters where the couple was married.

“For these couples,” Upton said, “it’s: ‘Now I’m married, now I’m not. Now I’m married, now I’m not.’ ”