The Louisiana Supreme Court on Tuesday passed on issuing a full opinion in a same-sex couple’s case seeking marriage and adoption rights, noting the matter has already been settled by the U.S. Supreme Court. But several justices still took an opportunity to denounce the high court’s recent ruling.
“The most troubling prospect of same-sex marriage is the adoption by same-sex partners of a young child of the same sex,” wrote Justice Jeff Hughes in a two-paragraph dissent.
His statement was one of two sharply worded protests from state Supreme Court justices stemming from a case involving Lafayette couple Angela Costanza and Chasity Brewer. The couple sought to make same-sex marriage legal in Louisiana and to have their marriage recognized and for Costanza to be legally acknowledged as a parent to Brewer’s biological son.
Because of the U.S. Supreme Court’s ruling striking down same-sex marriage bans nationwide, “there is no longer a justiciable controversy for this court to resolve,” said the court’s unsigned decree — which also emphasized religious organizations can continue “to perform marriage ceremonies according to the dictates of their faith.”
Four justices weighed in on their own, issuing individual takes on Justice Anthony Kennedy’s landmark decision in Obergefell v. Hodges, which declared same-sex marriages legal across the U.S.
Justice Jeanette Theriot Knoll — in an almost two-page criticism of the five U.S. Supreme Court justices forming the majority in Obergefell — stated she concurred with the opinion only because she is “constrained to follow the rule of law.”
She continued, “I write separately to express my views concerning the horrific impact these five lawyers have made on the democratic rights of the American people to define marriage and the rights stemming by operation of law therefrom. It is a complete and unnecessary insult to the people of Louisiana who voted on this very issue.”
Knoll, who in 2005 wrote the court’s unanimous ruling in Forum for Equality PAC v. McKeithen validating the state’s constitutional amendment banning same-sex marriage, further called the federal ruling an “imposition” on the Louisiana public’s wishes.
“I wholeheartedly disagree and find that, rather than a triumph of constitutionalism, the opinion of these five lawyers is an utter travesty as is my constrained adherence to their ‘law of the land’ enacted not by the will of the American people but by five judicial activists,” she wrote in Tuesday’s written comments on the Lafayette case seeking marriage and adoption rights.
Justice John Weimer emphasized that Louisiana’s constitutional amendment was approved with 77.78 percent of the vote in 2004.
“The apparent and rapid shift in public sentiment on the issue before us has been profound. However, the role of the judiciary is not to weigh shifting public sentiment at any given moment, but to be steadfast in following the law duly enacted by the people and/or their representatives,” he wrote.
Some legal scholars and gay rights activists had strong reactions to the written statements by Hughes and Knoll.
The dissents are “pretty amazing given our general acceptance today to the right of judicial review,” said Ed Sherman, law professor at Tulane Law School.
M. Isabel Medina, law professor at Loyola University New Orleans College of Law, contended some of the justices “misunderstand the role” of states and “how far they can go without taking note of what is happening in terms of the country constitutionally.” She added it might be “unprofessional to cast disagreement with disrespect for the Court.”
Hughes’ own logic about the danger of a gay couple raising a child of the same gender was questioned by his colleague, Justice Greg G. Guidry, who wrote Hughes’ writing “appears to be unaware of the facts of the case before us, which involves the intrafamily adoption of a boy by the female spouse of the boy’s biological mother.”
Forum for Equality Louisiana Chairman Chris Otten went further, saying Hughes was “basically accusing gay couples of being pedophiles. And I was glad Guidry called him out on that and pointed out that, by the way, this is a female couple raising a boy.”
Justice Scott Chrichton wrote nothing but that he sides with Guidry’s reasons. Two justices, Bernette Johnson and Marcus Clark, did not file anything under their names.
Matt Patterson, research and policy coordinator for the LGBT advocacy group Equality Louisiana, pointed out the justices’ exposed prejudices could compromise subsequent matters before the court.
“If a future case regarding same-sex marriage or some LGBT rights issue came to the (state) Supreme Court, I can pretty much tell you I know how those justices are going to rule now, because they have definitely let their hand slip, so to speak. The implication of bias here is just staggering,” Patterson said.
“It makes me feel like we jumped back several decades,” Otten added.
“It’s kind of shocking to me in 2015 that we have that sort of attitude present, certainly even more so that it would be announced by a member of our court. But that’s what the 14th Amendment is for — to protect people from this sort of discrimination,” Otten said.
Costanza and Brewer, the couple at the center of the state Supreme Court’s opinion, sought rights in Louisiana to an intrafamily adoption for their son.
Brewer gave birth to the boy in 2005, but only in 2008 did the couple marry, when California legalized same-sex marriage.
Fifteenth Judicial District Judge Edward Rubin in October ruled in favor of the couple’s requests — marking the only time a Louisiana judge has struck down the ban — but his ruling was suspended pending the state’s appeal.
A three-judge panel of the 5th Circuit Court of Appeals last week ruled Louisiana, Texas and Mississippi must allow and recognize same-sex marriages and ordered district judges who have overseen cases involving same-sex marriage, including U.S. District Judge Martin Feldman in New Orleans, to issue final judgments in their cases legalizing and recognizing same-sex marriage by July 17.