Like many courthouse officials around Louisiana, St. James Parish Justice of the Peace Trina J. Moll had a chaotic week because of same-sex marriage.
As an elected official — sworn to uphold state law, which bans gay marriage — she started last week wondering how to apply the U.S. Supreme Court’s determination that same-sex couples have the right to marry in any state and those marriages deserve equal protection under the 14th Amendment to the U.S. Constitution.
“At this point, we’re just between a rock and a hard place,” Moll said, adding that she was seeking clarification from Attorney General Buddy Caldwell.
Even beyond the broad religious and philosophical issues, there’s a bunch of nuts and bolts questions about how to fill out the forms properly. For instance, who is the bride and who is the groom in a same-sex union?
GOP presidential candidate Mike Huckabee spent a lot of time on Fox News arguing that there needs to be a specific law authorizing same-sex marriage, therefore the high court’s ruling had no immediate impact.
Texas Attorney General Ken Paxton advised courthouse employees in the Lone Star state not to issue marriage licenses or perform wedding ceremonies if doing so contradicted their religious beliefs.
Michigan’s Republican Attorney General Bill Schuette, whose office defended that state’s gay marriage ban before the U.S. Supreme Court, told court officials there that this fight is over and that they needed to start issuing licenses.
A couple of hours after the Supreme Court’s June 26 decision, Louisiana’s Caldwell, a Republican, issued a news release saying how disappointed he was, then adding that nothing in the decision legally requires officials to immediately start issuing marriage licenses or perform marriages for same-sex couples.
But Caldwell refused to say what he was advising justices of the peace, clerks of courts and other elected officials to do. That’s confidential, part of the attorney-client privilege, his press office says.
But what Caldwell’s aides were telling justices of the peace, according to several who received the advice, was to get over it and perform the wedding ceremonies or face the possibility of defending ethics violations or going to court or being hauled before the Judiciary Commission, the Louisiana Supreme Court’s disciplinary arm.
While Caldwell was invoking his privilege, Gov. Bobby Jindal’s executive counsel issued a legal memo outlining what he thought court officials should do.
The statement from Jindal’s office was similar to Paxton’s instructions, also giving court officials with religious objections permission to avoid issuing licenses or performing ceremonies. Jindal’s office even borrowed from Paxton the idea of finding free lawyers to defend officials who, because of religious beliefs, refused to follow the law.
Just how far-reaching the Obergefell v. Hodges decision goes is still up in the air. How to handle insurance? What about tax returns? Do Louisiana’s housing laws, which allow landlords to refuse to rent to gay people, still apply to a married couple?
“Any law that applies to one man, one woman marriage, now applies to same-sex marriage,” said Mike Johnson, a Bossier City lawyer (and state representative) who specializes in social issues law. “It’s safe to say that it’ll impact every area of family law and the civil code.”
Caldwell is running for re-election in October and faces two fellow Republicans, both of whom are strong candidates and both of whom, somewhat unsurprisingly, are critical of the way Louisiana’s attorney general has handled the same-sex marriage decision.
Jeff Landry, the former U.S. congressman from New Iberia, said Caldwell should have been more vocal in arguing the case before the Supreme Court and Caldwell should have been better prepared and ready to answer.
“I would have been better prepared,” Landry said, while refusing to provide specifics himself. “We would have contemplated a plan to provide real-time legal advice.”
“This is what this whole campaign is all about,” said Marty Maley, who made a name for himself as an assistant district attorney in the 18th Judicial District, which covers Iberville, West Baton Rouge and Pointe Coupee parishes.
“Holding this issue up for 25 days or six months or a year, it’s not appropriate,” Maley said. “Although I don’t agree with their methodology and the way they got to their conclusion, I respect the Supreme Court and would encourage the clerks and justices of the peace to implement.”
On Wednesday, the 5th U.S. Circuit Court of Appeals told officials in Louisiana, Mississippi and Texas to stop dragging their feet.
But even before the 5th Circuit order — and despite the Jindal administration’s advice to hold off and Caldwell’s public statements being at odds with his private advice — court officials from around the state seem to have moved forward on their own and started issuing licenses and marrying same-sex couples.
Mark Ballard is editor of The Advocate Capitol news bureau. His email address is firstname.lastname@example.org, and he is on Twitter, @MarkBallardCNB. For more coverage of government and politics, follow our Politics Blog at http://blogs.theadvocate.com/politics blog/.