Attorneys for both the state and a group of gay and lesbian couples hoping to topple Louisiana’s ban on same-sex marriage submitted arguments this week on whether the ban violates either the First Amendment or the due process clause of the U.S. Constitution.
Attorneys in the case made oral arguments recently before U.S. District Judge Martin Feldman, but at that time, they debated only whether Louisiana must recognize same-sex marriages performed legally in other states.
New legal briefs requested by the judge after that hearing address the questions of whether Louisiana must actually hand out marriage licenses to same-sex couples and whether the state is violating First Amendment rights against so-called “compelled speech” by requiring that same-sex couples who have already wed elsewhere must list themselves as single on Louisiana tax returns.
The couples involved answered both questions in the affirmative. They said Louisiana is forcing people into “evident hypocrisy” by requiring same-sex couples, even if they have a legal marriage license from another state, to list themselves as single on Louisiana tax forms, violating the First Amendment in the process.
They also argued that denying same-sex couples a marriage license in Louisiana based solely on their gender deprives them of rights ensured by the Constitution’s guarantee of equal protection under the law.
The first argument may be a unique one, though similar gay marriage cases are pending in several other states.
The second argument relies on the same line of reasoning employed in dozens of those lawsuits, most of them sparked by the U.S. Supreme Court’s decision last year in United States v. Windsor, which held that the federal government must extend benefits to same-sex couples married in states where those unions are legal.
The plaintiffs’ brief on Wednesday quotes Justice Anthony Kennedy, who — in voting to strike down part of the federal Defense of Marriage Act in the Windsor case — wrote that singling out same-sex couples “demeans” them and “humiliates” children they are raising.
Lawyers representing Louisiana Attorney General Buddy Caldwell and the other named defendants in the case responded unequivocally. They told Feldman that the answer to whether Louisiana is violating either the First Amendment or due process rights of same-sex couples “is ‘no.’ ”
As they did in court last month, the state’s lawyers pointed out that the Supreme Court in Windsor affirmed the right of the states — rather than judges or the federal government — to define marriage. Kennedy wrote that the states have a “historic and essential authority to define the marital relation.”
The state’s brief acknowledges that the couples involved have hit upon a “novel” argument by bringing up the First Amendment, but it then dismisses the argument as off-base.
“This novel claim has no merit because this tax filing requirement regulates conduct, not speech,” it says, “and therefore does not implicate the First Amendment compelled-speech doctrine at all.”
Of the couples involved in the lawsuit, only one is looking for the right to marry in Louisiana, rather to than have a marriage performed elsewhere recognized here. Wednesday’s brief says Robert Welles and Garth Beauregard “have been in a committed relationship for twenty-four years and wish to marry among their friends and families.”
They applied for a marriage license from another of the case’s named defendants, Devin George, the state registrar of vital records, but were refused.
They have asked for additional oral arguments to make their case in person, though it was not clear whether that would happen before Feldman issues a ruling.
The judge had not entered any response to their request in the court record as of Thursday evening.