Attorneys for Gov. Bobby Jindal are asking a Baton Rouge state judge to throw out a legal challenge by the American Civil Liberties Union and other gay rights supporters to his May 19 executive order that carves out protections for those who oppose same-sex marriage.
Jindal has said the “Marriage and Conscience Order” applies only to the executive branch and will prevent the state from denying or revoking tax exemptions and deductions, contracts and other agreements on the basis of opposition to same-sex marriage.
A June 30 lawsuit by the ACLU and other gay rights proponents alleges the governor’s executive order creates a protected class of people who oppose same-sex marriage.
In court papers filed Tuesday, Jindal lawyers Thomas Enright and Kyle Duncan ask state District Judge Todd Hernandez to dismiss the suit, arguing there is no controversy that the court can resolve. They also contend the suit’s allegations are merely speculative, and that the taxpayer plaintiffs have no right to challenge the order.
Jindal’s attorneys claim the suit, filed four days after the U.S. Supreme Court legalized gay marriage, acknowledges that the religious protections Jindal’s order seeks to ensure are already guaranteed by state and federal law.
The state law is Louisiana’s Preservation of Religious Freedom Act of 2010.
“If the plaintiffs were to prevail on the merits, their own petition states there would be no change in the legal status quo: Louisiana law would still protect from adverse state action persons who act on the basis of a religious belief that marriage consists only in man-woman relationships,” the governor’s lawyers argue.
“Plaintiffs are thus seeking an impermissible advisory opinion from this Court.”
Marjorie Esman, executive director of the ACLU of Louisiana, said Wednesday she had to limit her comments to the state’s filing until after the plaintiffs file their official response in the 19th Judicial District Court.
“We intend to pursue this litigation. We’re not going to stop,” she said.
Two days after Jindal signed it, Esman stated that the executive order “sends a message of divisiveness and bigotry, while doing nothing to protect religious freedom of any kind.”
Jindal’s attorneys claim in their filing Tuesday that the lawsuit is based on a “political disagreement” with the governor rather than on an “actual legal controversy.”
“Plaintiffs argue that the Order ‘sends the message’ that same-sex couples ‘should avoid living, working, or visiting Louisiana’ and point out that the Order was issued ‘one day after the Governor’s announcing an exploratory committee to prepare for a presidential run,’” the lawyers state.
“Courts are obviously not empowered to adjudicate which ‘messages’ the executive branch should send. Nor should they expend scarce judicial resources in irresolvable disputes over the political timing of government officials’ actions.”
Jindal’s attorneys further allege the suit is not valid because it is speculative in nature.
“The only harms plaintiffs discuss are discriminatory acts they believe the Order will sanction — yet plaintiffs carefully avoid alleging that any such discrimination has already happened, is now happening, or is even likely to happen anytime soon.”
The six individual plaintiffs in the suit are state taxpayers, but the governor’s lawyers say such taxpayers can challenge allegedly unconstitutional government action only if the action would increase their tax burden or otherwise unjustly affect the taxpayer or his property.
“The taxpayer plaintiffs in this case ... have made no such allegations. They have not alleged that the Order will increase the burden of taxation, affect their property, increase state expenditures, or impact the public fisc in any way,” the attorneys argue.
“By its own terms, the Order can have no effect on taxation or the public fisc because its purpose is to prevent the government from stripping persons of existing tax exemptions, deductions, contracts, licenses, or other benefits based on their religious beliefs.”
Jindal is term-limited and his executive order will automatically expire 60 days after the 2016 legislative session, unless the next governor extends it. The next governor also could immediately rescind the order upon taking office in January. The gubernatorial election is Oct. 24.