LGBT rights in Louisiana
|LGBT rights in Louisiana|
|Same-sex sexual activity legal?||Legal since 2003
(Lawrence v. Texas)
|Gender identity/expression||Altering sex on birth certificate requires sex reassignment surgery|
|Discrimination protections||None statewide (see below)|
|Louisiana Constitutional Amendment 1 limits marriage to man/woman, places restrictions on non-marriage types of same-sex unions
Louisiana Civil Code article 89 prohibits persons of the same sex contracting a marriage.
Louisiana Civil Code article 3520 bans the recognition of purported same-sex marriages from other states.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Louisiana face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Louisiana. Same-sex couples and families headed by same-sex couples do not have the same protections as opposite-sex couples.
In September 2014, two courts, one federal and one state, produced contradictory rulings on the constitutionality of the state's denial of marriage rights to same-sex couples.
Laws against same-sex sexual activity
Sexual acts between persons of the same sex are legal in Louisiana. They were previously criminalized under the state's sodomy law, which applied to both homosexuals and heterosexuals. The law was rendered unenforceable in 2003 by the U.S. Supreme Court's decision in Lawrence v. Texas.
In 2005, the United States Court of Appeals for the Fifth Circuit struck down the part of the statute that criminalized adult consensual anal and oral sex.
In 2013, law enforcement officers in East Baton Rouge Parish arrested men who agreed to engage in sexual activity banned by the statute. The District Attorney did not prosecute those arrested, and both he and the parish sheriff supported repealing the sodomy statute. In April 2014, a bill to repeal the statute failed in the Louisiana House of Representatives on a 66–27 vote after lobbying in opposition by the Louisiana Family Forum.
Recognition of same-sex relationships
On September 18, 2004, by 78% to 22%, the voters of Louisiana approved a state constitutional amendment that banned same-sex marriages and civil unions. The measure banned any other legal status "identical or substantially similar to that of marriage" which includes domestic partnerships.
In 1988 and 1999, Louisiana added provisions to its Civil Code that prohibited same-sex couples from contracting to marry and prohibited the recognition of same-sex marriages from other jurisdictions.
In 1997, the City of New Orleans extended health insurance benefits to same-sex partners of city employees, the first and only city in the state to do so. In 1999, the City Council of New Orleans created a domestic partner registry for the city.
Costanza v. Caldwell
In July 2013, a state trial court dismissed a lawsuit brought by a lesbian couple who married in California, In Re Costanza and Brewer, who sought to have their marriage recognized in order to allow Constanza to adopt Brewer's biological child. The plaintiffs appealed that dismissal because they were not allowed to amend their complaint, and on February 5, 2014, 15th Judicial District Court Judge Edward Rubin ruled in favor of the plaintiffs and authorized the adoption in a separate action.
Costanza and Brewer merged their suit that challenges Louisiana's same-sex marriage ban and their adoption case into one action. They are represented by private counsel: Lafayette attorney and Iraqi veteran Joshua S. Guillory, and professor of law and playwright Paul Baier. On September 22, 2014, Judge Rubin found Louisiana's ban an unconstitutional violation of the equal protection, the due process, and the full faith and credit clauses of the U.S. Constitution.
State officials asked him to stay his decision and announced plans to appeal directly to the Louisiana Supreme Court. He ordered the state to allow the plaintiffs to file a joint state income tax return and to allow their adoption to proceed. He enjoined the state from enforcing laws that "prohibit a person from marrying a person of the same sex". He stayed his ruling pending appeal, and the Attorney General appealed directly to the Louisiana Supreme Court, which heard oral argument on January 29, 2015.
Robicheaux v. George
In July 2013, a lawsuit brought in the Eastern District of Louisiana challenged the state's refusal to recognize same-sex marriages from other jurisdictions. The plaintiffs were a same-sex couple married in Iowa in September 2012, later joined by a second couple; the case was assigned to U.S. District Judge Martin Feldman. The court dismissed the suit in November 2013 because it found that the only named defendant, the state attorney general, had taken no specific action with respect to the plaintiffs' marriages.
On February 5, 2014, the Robicheaux plaintiffs, now joined by two women married in Iowa in 2013 and two men denied a marriage license in New Orleans in January 2014, refiled their suit, naming as principal defendant the state director of health, along with the secretary of revenue, with the case styled Robicheaux v. George. Forum For Equality, a Louisiana LGBT activist group, filed a separate suit on behalf of four couples on February 12, seeking recognition of same-sex marriages established in other jurisdictions. On March 18, Judge Feldman consolidated the two cases under the name Robicheaux v. Caldwell. Oral arguments on motions for summary judgment were held on June 25.
On September 3, Judge Feldman ruled for the defendants, writing that "Louisiana has a legitimate interest ... whether obsolete in the opinion of some, or not, in the opinion of others ... in linking children to an intact family formed by their two biological parents". He wrote that the idea of same-sex marriage was "nonexistent and even inconceivable until very recently". He described the issue as "a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition." He found nothing in United States v. Windsor or previous Fifth Circuit decisions to require him to subject Louisiana's ban to "heightened scrutiny". He also ruled that "There is simply no fundamental right, historically or traditionally, to same-sex marriage." Under "rational basis review", he accepted the state's claim that its laws "serve a central state interest of linking children to an intact family formed by their biological parents" and further its interest in "safeguarding that fundamental social change ... is better cultivated through democratic consensus." He wrote:
The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational on the constitutional grid.
He characterized other federal court decisions invalidating state bans on same-sex marriage as "the volley of nationally orchestrated court rulings ... [that] thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos." He also asked what the impact of a decision for the plaintiffs might foretell:
[I]nconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? .... This Court is powerless to be indifferent to the unknown and possibly imprudent consequences of such a decision.
All parties asked the Fifth Circuit Court of Appeals to set an expedited briefing schedule to allow an appeal to be heard alongside De Leon v. Perry. The Fifth Circuit granted that request on September 25. The Fifth Circuit heard oral argument on January 9, 2015, before Judges Patrick E. Higginbotham, Jerry E. Smith, and James E. Graves, Jr.
On November 20, the plaintiffs filed a petition asking the U.S. Supreme Court for a writ of certiorari before judgment, that is, to hear the case, now Robicheaux v. George, without waiting for a decision from the Fifth Circuit. The state supported that request on December 2. The Supreme Court denied that petition on January 12, 2015.
Adoption and parenting
Louisiana allows single persons to adopt and does not explicitly deny adoption or second-parent adoption to same-sex couples.
Louisiana has successfully defended in federal court its refusal to amend the birth certificate of a child born in Louisiana and adopted in New York by a married same-sex couple, who sought to have a new certificate issued with their names as parents as is standard practice for Louisiana-born children adopted by opposite-sex married couples. In October 2011, the U.S. Supreme Court rejected a request from Lambda Legal, representing the plaintiffs in the case, Adar v. Smith, to review the case.
In 1992, Governor Edwin Edwards issued an executive order prohibiting discrimination in state employment on the basis of sexual orientation. In 1996, Governor Murphy J. Foster, Jr. allowed the executive order to lapse. In 2004, Governor Kathleen Blanco reissued Edwards' executive order. In August 2008, Governor Bobby Jindal allowed it to expire.
Hate crimes law
Louisiana is one of the few southern states which has a hate crime law that provides for penalty enhancements for crimes motivated by the victim's sexual orientation or perceived sexual orientation. Passed in 1997, after a lobbying effort of five years, its passage made Louisiana the first state in the Deep South to have such a law. It does not cover gender identity.
Following the U.S. Supreme Court decision in United States v. Windsor in June 2013 invalidating Section 3 of the Defense of Marriage Act, the U.S. Department of Defense issued directives requiring state units of the National Guard to enroll the same-sex spouses of guard members in federal benefit programs. Defense Secretary Chuck Hagel on October 31 said he would insist on compliance. On December 3, Louisiana agreed to conform with DoD policy stating that state workers would be considered federal workers while enrolling same-sex couples for benefits.
|% support||% opposition||% no opinion||% don't know|
|New York Times/CBS News/YouGov||September 20-October 1, 2014||2,187 likely voters||± 2.5%||39%||46%||15%||-|
|Public Policy Polling||June 26–29, 2014||664 registered voters||± 3.8%||32%||55%||13%||-|
|Public Policy Research Lab||February 4-February 24, 2014||1,095 respondents||± 3%||41.7%||52.7%||4.1%||1.5%|
|Public Policy Polling||August 16–19, 2013||721 voters||± 3.7%||28%||63%||10%||-|
|Harper Polling||April 6–7, 2013||541 Likely Voters||± 4.21%||21%||60%||19%||-|
|Public Policy Research Lab||February 8-March 17, 2013||930 respondents||± 3.6%||39.3%||56.3%||4.4%||-|
|Public Policy Polling||February 8–12, 2013||603 voters||± 4%||29%||59%||12%||-|
- Politics of Louisiana
- LGBT rights in the United States
- Rights and responsibilities of marriages in the United States
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