By Benjamin Alexander-Bloch
NOLA.com | The Times-Picayune
February 12, 2014
A gay rights group on Wednesday filed a federal lawsuit challenging the Louisiana Constitution’s ban on recognizing gay marriages performed legally in other states — adding Louisiana to a growing list of legal challenges to state laws on the issue.
The civil lawsuit, filed in New Orleans by the nonprofit Forum for Equality Louisiana, focuses on the state not allowing same-sex married couples to file joint state income taxes and its refusal to allow birth certificates to name both spouses in a same-sex couple as parents.
The case was assigned to U.S. District Court Judge Martin Feldman, a Reagan appointee.
“Louisiana’s denial of recognition to the marriages of same-sex couples conveys the state’s view that the couples’ marriages are of no value and are unworthy of legal recognition,” the suit says.
It goes on to say that denial “damages them and their children by facilitating and encouraging public and private discrimination, by stigmatizing their relationships and families as unworthy or inferior, and by stripping them of privacy and dignity.”
The state Attorney General’s office declined to comment on the suit.
Also on Wednesday, in a case very similar to the one filed in Louisiana, a federal judge in Kentucky struck down Kentucky’s ban on recognizing legal same-sex marriages performed in other states. The judge ruled that the state ban had violated the U.S. Constitution’s guarantee of equal protection, writing that it treated “gay and lesbian persons differently in a way that demeans them.”
In that decision on Wednesday, U.S. District Judge John G. Heyburn II went on to note that, “Nine state and federal courts have reached conclusions similar to those of this Court.”
“Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights,” Heyburn later added. “This Court joins in general agreement with their analyses.”
Four same-sex Louisiana couples are named alongside the Forum for Equality Louisiana as plaintiffs in the local suit filed on Wednesday. The suit is being handled by attorney J. Dalton Courson, of the New Orleans firm Stone, Pigman, Walther, Wittmann.
One of the couples, Jacqueline “Jackie” M. Brettner, a New Orleans attorney, and M. Lauren Brettner, a nurse at a local hospital, met in 2010 while playing for a local roller derby team.
“Despite hitting each other on the track, we fell in love pretty much from the get-go,” Jackie Brettner said on Wednesday.
They married in New York on Valentine’s Day 2012, so they will celebrate their two-year anniversary on Friday.
But because Lauren Brettner gave birth to their daughter – who was born in April 2013 – she is the only one with legal rights to the child in Louisiana.
“We feel that no one should have to worry that their child would be raised by anyone other than their spouse if something, God forbid, was to happen to them,” Lauren Brettner said.
The suit argues that, “If Jackie were a man rather than a woman, the State Registrar would have recognized Jackie and Lauren’s New York marriage and issued a birth certificate identifying Jackie as the baby’s parent without further inquiry into whether Jackie had a biological connection to the baby.”
The suit specifically names Louisiana Revenue Secretary Tim Barfield and Louisiana State Registrar Devin George as defendants, both in their official capacities.
It challenges Barfield’s decision not to recognize same-sex marriages when determining individual’s filing status for state income taxes. It targets George because his office “refuses to issue birth certificates naming same-sex spouses as the parents of a child born of the marriage,” according to the suit.
In explaining their department’s politicies, both George and Barfield have referred to the 2004 amendment in the Louisiana Constitution that bans recognition of out-of-state gay marriages.
Barfield said on Wednesday that his office hadn’t yet read the suit, but that in light of the outcry from gay rights groups in the wake of the IRS ruling, he was not surprised to see such a legal challenge.
“Our Constitution is clear,” Barfield said Wednesday, adding “until that is ruled invalid or unconstitutional, I’m duty-bound to enforce it.”
Barfield said his office is looking into how many Louisianians are impacted by the IRS ruling. He speculated that group is small, making the greater tax impact “immaterial in the general scheme of things.”
“My duty’s clear and I’m fine with this playing out in the legal system,” Barfield said.
Courson, the New Orleans attorney who filed the suit against Barfield and George, said on Wednesday that government officials “not only have to uphold the state Constitution but also the federal Constitution.”
“Government officials cannot discriminate without adequate justification,” he said.
Acknowledging that the suit is more narrowly constructed in that it does not fight to allow gay marriages to take place in Louisiana, Courson said, “It is a conservative first step.”
George did not return an inquiry for comment on Wednesday.
While 17 states currently allow gay marriage, that 2004 amendment, entitled Defense of Marriage, states that marriage in Louisiana “shall consist only of the union of one man and one woman.”
It goes on to say that a “legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
“No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman,” it continues.
Voters approved the constitutional ban on Sept. 18, 2004, and it became effective on Oct. 19, 2004.
An article of the state civil code, enacted by the Louisiana legislature in 1999, states that a “purported marriage between persons of the same sex violates a strong public policy of the state of Louisiana and such a marriage contracted in another state shall not be recognized in this state for any purpose, including the assertion of any right or claim as a result of the purported marriage.”
Last summer, the U.S. Supreme Court struck down part of the federal 1996 Defense of Marriage Act by ruling in part that same-sex couples should get the same federal benefits as heterosexual couples.
Citing that ruling, the U.S. Department of the Treasury and the Internal Revenue Service last year ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, would be treated as married for federal tax purposes.
That ruling applies regardless of whether the couple lives in a jurisdiction that does not recognize same-sex marriage, such as Louisiana.
Citing the Louisiana Constitution’s ban, Barfield in September said he “is bound to support and uphold the Constitution and laws of the state of Louisiana, and any recognition of a same-sex filing status in Louisiana as promulgated in (the IRS ruling) would be a clear violation of Louisiana’s Constitution.”
To that end, Barfield said that Louisiana taxpayers “must provide the same federal income tax information on the Louisiana State Return that would have been provided prior to the issuance” of the IRS ruling.
The suit filed Wednesday argues that Barfield’s directive has required same-sex couples to “deny the existence of their marriages” and that, in turn, “is an unconstitutional coercion of speech.”
The suit also alleges that the state revenue department decision is “contrary to Louisiana income tax laws that require a tax filer to use the information reported on the filer’s federal tax return for purposes of the Louisiana state return.”
In addition to different state tax liabilities, the suit highlights how same-sex married couples are denied inheritance rights after their spouse dies and that only one parent can be on a child’s birth certificate.
Ted Boutrous, a Los Angeles attorney who helped handle the California Proposition 8 case that rose to the U.S. Supreme Court last year, said the Louisiana suit “is a very strong complaint.”
“It’s hard to imagine those restrictions surviving constitutional scrutiny in light of the Supreme Court decision,” Boutrous said, referring to Louisiana’s restrictions on out-of-state gay marriages. “…Since June, there have been many lawsuits filed across the States, an interesting mix of cases and that is healthy for the marriage equality battle.
“It is a very exciting time, and law and justice are on our side.”