Advocates for same-sex marriage in Louisiana are openly betting that by the end of this month the U.S. Supreme Court will rule in their favor.
But even if the decision they expect comes down, it’s up in the air whether gay and lesbian couples across the state waiting to cement their partnerships with a wedding will get immediate satisfaction.
Legal experts offer different answers, estimating it could take days or even months after a favorable opinion for same-sex marriages to move forward in the state.
Part of the likely delay is due to the usual questions about interpreting a court decision and the time local and state officials could need to parse the ruling. In addition, though, there is a possible hiccup unique to Louisiana, legal experts say, because this is the only state where a federal district court judge in recent years has upheld a statewide same-sex marriage ban.
“There’s a slightly different route for Louisiana because we lost at the trial level,” said Kenneth Upton Jr., senior counsel with Lambda Legal, the attorneys representing gay couples in the Louisiana case. The federal appeals court “would send it back to the court in New Orleans with instructions to enter a judgment for the plaintiffs. That could take some time.”
Still, the excitement surrounding a landmark Supreme Court ruling of this type could spark a rush on clerk of court offices, the local agencies that typically hand out marriage licenses.
If gay marriage is legalized, any clerks who decide to immediately dispense licenses to same-sex couples would be on firm footing, Upton said. But if any balk, there could be some breathing room.
The political scramble might be just as dramatic. What would be the reactions of state leaders like Gov. Bobby Jindal and Attorney General Buddy Caldwell, who have staked out positions adamantly opposed to same-sex marriage? And what about local clerks — themselves politicians, although ones not normally in the spotlight?
“Until we know what the ruling says, we really can’t know what we’re going to do. Between what our legal counsel advises us and what the attorney general advises us, that’s what we’ll do. I’m sure the question is: Does Louisiana law supersede a federal law or decision that’s handed down?” said Debbie Hudnall, executive director of the Louisiana Clerks of Court Association.
“Believe me, we’re all very anxious to know which way (it goes),” she said. “Whatever we do, we want to be consistent and make sure we’re doing the right thing.”
U.S. v. Windsor
Since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor, a rolling tide of lower court decisions across the country have declared marriages between same-sex partners a constitutional right. Citing the Windsor precedent, in which the high court required the federal government to recognize gay marriages performed in states where they are legal, judges found that state bans on those marriages were unconstitutional, denying couples a fundamental right. Based in significant part on these court rulings, gay marriage is now legal in 36 states.
That stopped when the issue reached U.S. District Judge Martin Feldman in New Orleans, who upheld Louisiana’s ban last September, saying the democratic process, not the courts, should determine whether the definition of marriage changes. Louisiana voters in 2004 overwhelmingly approved a constitutional amendment restricting marriage to be between a man and a woman.
Louisiana gay-rights advocates took the issue to the 5th U.S. Circuit Court of Appeals earlier this year, but then the Supreme Court justices decided to hear the issue themselves.
The high court heard arguments on two issues related to gay marriage. The first issue dealt directly with whether state bans themselves are unconstitutional and, therefore, same-sex marriage should be allowed everywhere. But the justices also considered whether states could continue their bans but those states would be required to acknowledge out-of-state marriages of gay couples, just as they would straight marriages.
Upton said the Feldman ruling and pending 5th Circuit case could complicate implementation if the Supreme Court sides with same-sex couples’ ultimate goal: marriage in every state. Both the 5th Circuit and Feldman would need to act — the appeals court issuing a ruling and Feldman overturning his — after a favorable Supreme Court decision, he said. It would be Feldman’s final judgment that’s needed to bring enforcement against any official who refuses to abide by a new rule of law, he said.
This time gap means clerks who refuse to issue licenses to gay couples could “have cover” during a limbo period while the matter works its way through the courts, he said.
“I think by the time you get past the summer, as you get toward September, I think anybody who’s not issuing licenses (to same-sex couples) is on shaky ground,” Upton said.
Legislators in North Carolina — where a federal judge last fall overturned the state’s ban on same-sex marriages — could provide a preview of possible reactions from those opposed to expanding marriage rights. Lawmakers there this month overrode the governor’s veto of a bill that would allow local officials with a “sincerely held religious objection” to recuse themselves instead of assisting the marriages of gay couples.
The Jindal administration mentioned exploring legal alternatives should the Supreme Court support same-sex marriage, in a coordinated statement with the Attorney General’s Office issued by that agency’s lawyer in the lawsuit, Kyle Duncan.
“Depending upon the ruling, Congress may need to explore federal options, such as bringing forward new legislation to protect religious liberty or even a constitutional amendment. But we’ll need to wait and see what the court’s opinion states. Until we receive a decision, we will continue fighting to preserve the Louisiana Constitution that states marriage is between one man and one woman,” Duncan wrote in an email.
University of Louisiana at Lafayette political scientist Pearson Cross predicted Jindal would plan his response to the Supreme Court’s decision to boost his presidential prospects. The governor is expected to announce his official candidacy in late June, around the time of the expected ruling.
“If the Supreme Court should uphold the right of same-sex couples to get married, I think it’s going to be an opportunity for Jindal to fulminate against an out-of-control judiciary and the imposition of the federal government into the lives of citizens and the duties of the state,” Cross said. “He would, probably, in the context of a presidential campaign, say, ‘This is the reason you should elect me because I will appoint justices who believe that a marriage is between one man and one woman.’ ”
While some Republicans have shied away from the issue, Jindal has recently grabbed hold of it. When a state House committee this year defeated a controversial bill that would have provided legal protections to people who oppose same-sex marriage, Jindal issued an executive order with many of the same components, saying it was a matter of religious freedom.
But Shannon Dirmann, Jindal’s deputy communications director, dismissed the idea the governor’s beliefs on same-sex marriage are politically motivated.
“The people of Louisiana voted to define marriage as that between one man and one woman. That is why the state is fighting to preserve the Louisiana Constitution’s definition of marriage in court. It is important to note that the governor supports traditional marriage because of his faith, not polls or politics. That said, discrimination is wrong and will not be tolerated in Louisiana, and the governor believes that tolerance and the religious view of traditional marriage can co-exist in our state,” she said in a statement.
Supreme Court arguments
The Supreme Court in late April heard arguments about same-sex marriage prohibitions like Louisiana’s, accepting cases that offered legal challenges to bans in Ohio, Michigan, Kentucky and Tennessee. The 6th U.S. Circuit Court upheld the bans in a November decision that made many of the same arguments as Feldman’s earlier ruling.
“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” the opinion by Judge Jeffrey Sutton concluded. “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
During the high court’s oral arguments, same-sex marriage advocates took comfort in statements from Justice Anthony Kennedy, considered the key swing vote on the issue, who repeatedly made comments underscoring the idea that marriage confers dignity on couples.
“Same-sex couples say, ‘Of course, we understand the nobility and the sacredness of the marriage,’ ” Kennedy said. “ ‘We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.’ ”
Leaders in Louisiana’s gay and lesbian community are predicting an outright victory, opining that by denying circuit court appeals other than that from the 6th Circuit, the Supreme Court was positioning itself to make a historic ruling.
John Hill, with the Forum for Equality Louisiana in New Orleans, noted that the high court needs only four votes to hear a case but apparently didn’t get enough votes to take up earlier appeals of circuit court decisions that sided in favor of same-sex marriage.
But the gay leaders also acknowledged there could be Louisiana leaders who would hesitate at implementing a Supreme Court decision.
“I imagine that various folks will be trying to … diminish it, pretend it doesn’t say what it says, assert that it somehow doesn’t affect actions taken by the state,” said Matt Patterson, research and policy coordinator for Equality Louisiana, a Baton Rouge-based group supporting LGBT rights. “So in that sense, it might take a while to work through that.”
Stephen Griffin, a constitutional law professor at Tulane University, echoed the idea that the Supreme Court’s decision may not have an immediate effect.
“I have my doubts whether it would be the next day. It would be once the officials absorb the reality that there’s no basis on which to challenge the Supreme Court’s ruling, and they would just have to conform,” he said.
Follow Maya Lau on Twitter, @mayalau.