Wednesday, Oct. 1, 2014
For a few brief seconds on Thursday, Sept. 25, 2014, for the first time ever, same-sex marriage was legal in Louisiana, specifically Acadia, Lafayette, and Vermilion parishes. But before any vows could be exchanged and any certificates could be issued, a suspensive appeal was granted.
Three days before, Judge Edward Rubin of the 15th Judicial District Court became the first sitting judge in Louisiana history to rule, definitively, that the state's ban on same-sex marriage was unconstitutional. Only 19 days earlier, another Louisiana judge, U.S. District Judge Martin Feldman of New Orleans, also made history. In upholding Louisiana's ban, Judge Feldman broke a streak of more than 20 consecutive decisions from all over the country striking down bans against same-sex marriage.
Although Feldman's opinion was the subject of intense national media attention (largely because it was such an outlier), Rubin's decision, at least within the context of Louisiana jurisprudence, will likely be remembered as much more historically significant.
But before I explain why, please allow me to digress.
Despite what the punchlines of far too many jokes may suggest, you cannot marry your first cousin in Louisiana, Arkansas or even Mississippi. But if you really want to marry your first cousin and have your marriage legally recognized in Louisiana, there's no reason to panic: All you need to do is get hitched in Alabama or, to be fair, New York, California, Florida, Hawaii, or one of the 18 other states across the country that recognize incestuous marriages between first cousins.
If you're feeling particularly adventurous, you could even tie the knot in Iran, because Louisiana also recognizes incestuous marriages between first cousins entered into in the Islamic Republic of Iran. I'm not kidding.
In 2008, Louisiana's First Circuit Court of Appeal recognized the validity of an Iranian marriage, performed in 1976, between first cousins, even though the husband had moved to the United States only a year later and even though he had subsequently married and divorced an American woman (apparently to help him expedite his citizenship status) and then, decades later, remarried another woman from Baton Rouge. The court explains (emphasis added):
Based upon the law of Louisiana, first cousins may legally cohabitate, have intimate relations, and even produce children; however, they are merely prohibited from regularizing their union by marriage. This disparity would tend to negate any contention that Louisiana has a strong public policy against marriages between first cousins, since it is in conflict with this state's policy to legally solidify such unions for the good of society at large and for the benefit of any potential posterity. (Ghassemi v. Ghassemi, 998 So. 2d 731, 748)
It is also worth noting that in Louisiana and throughout the entire country, two serial killers behind bars on death row still maintain a "fundamental right" to marry one another, as long as they are not of the same sex.
Why do we recognize that it's important to "legally solidify" unions between first cousins from Iran who haven't even been together for nearly 40 years and unions between murderers and rapists and violent domestic abusers? How are those unions "for the good of society at large and the benefit of any potential prosperity"? What does this really say about the "sanctity of marriage"?
During the last three years, Louisiana Gov. Bobby Jindal and Attorney General Buddy Caldwell have spent hundreds of thousands in taxpayer dollars and countless hours in order to prevent gay and lesbian American citizens from accessing the fruits and benefits of a right so fundamental to our nation that it can still be enjoyed by prisoners stripped of virtually every other right. Their arguments are specious and easily discounted by the law and by reality.
Marriage, they suggest in one breath, is about incentivizing the traditional nuclear family and ensuring children remained tethered to their biological parents. This, of course, belies the fact that Louisiana already recognizes marriages between cousins, common law marriages, and marriages between people who are elderly, infertile or simply uninterested in ever having children.
In the next breath, they argue that marriage is a state's rights issue via the 10th Amendment, and that any federal intrusion on a state's sovereign ability to regulate marriage is thereby unconstitutional. After speaking with Special Assistant Attorney General Kyle Duncan, the D.C.-based attorney hired by Caldwell at $385 an hour to defend Louisiana's prohibition on same-sex marriage and who had also been hired by Caldwell in 2004 to promote Louisiana's constitutional amendment banning same-sex marriage, I think it's safe to say that they think this is their strongest argument. But it's a house of cards.
Remember, there's still a Constitution and 25 other amendments (26 if you count the 18th Amendment, which enforced the prohibition of alcohol, though Louisiana never counted that one anyway). States can't constrict or constrain any of the protections and fundamental rights guaranteed by the Constitution; they can only expand and enhance those protections and fundamental rights.
In our conversation and in the briefs he filed with Judge Feldman's and Judge Rubin's courts, Duncan repeatedly quoted from Supreme Court Justice Anthony Kennedy's majority opinion in United States v. Windsor, the 2013 case that struck down portions of the federal Defense of Marriage Act as unconstitutional.
_Angela Costanza and Chasity Brewer, the couple whose custody
case led to Judge Ed Rubin's historic decision clearing the state's
ban on same-sex marriage unconstitutional
_
That may seem paradoxical to some: How could you possibly use a Supreme Court opinion striking down federal discrimination on the basis of sexual orientation in order to justify state discrimination on the basis of sexual orientation? The short answer is: You probably can't, but you can try.
Duncan, writing on behalf of the state of Louisiana, argues that Windsor actually reaffirmed the supremacy of state regulation of marriage. In Windsor, an elderly widow who legally married her wife in Canada and had their marriage recognized by the state of New York was denied more than $300,000 in federal survivor's benefits, because the Defense of Marriage Act prohibited same-sex couples from accessing or receiving benefits.
At the risk of boring you with the minutia, I think this is important, because it's the argument our taxpayer dollars are funding: The Supreme Court, Duncan suggests, was less concerned about striking down a federal law that discriminated against gay and lesbian couples than it was with deferring to a state law protecting those couples. Therefore, according to his logic, even though Windsor represented the biggest victory for gay and lesbian rights in American history, and even though it obliterated a federal law that had been passed by the Congress and signed by the president, it actually was a green light for states to pass laws banning same-sex marriages and same-sex adoptions.
So far, only one judge in the entire country has agreed with Duncan's logic: Feldman in New Orleans.
It is easy for some to become more focused on theory than practice. And in practice, these bans are most assuredly discriminatory; they most certainly are based on animus toward gay and lesbian Americans; they tangibly hurt families and children; they perpetuate a culture of bigotry and bullying and blind hatred.
As a heterosexual white male from an upper middle class family, I don't need to have a dog in this fight, but I feel obligated because of people like Chasity and Angela.
Ten years ago, Chasity Brewer realized a dream for her and her partner Angela Costanza. Thanks to the marvels of modern medicine, Chasity gave birth to the couple's first child, a healthy little baby boy. Like most spouses, Angela was right by Chasity's side the entire time. And even though Chasity was the "biological mother," Angela was actually the first to hold their baby boy in her arms.
Four years later and only three months after California's Proposition 22 (the precursor to Proposition 8) was found to be unconstitutional, Chasity and Angela were finally able to make it official: They got properly, legally married.
With their little boy in tow, Chasity and Angela decided to settle for good in Lafayette. And although they likely knew their marriage would not be recognized in Louisiana, as it would have been if they were opposite sex first cousins, they hoped, at the very least, that their family would be dignified and recognized. Angela and Chasity filed for an intrafamily adoption, so that Angela would be legally recognized as a parent of their son, in the same way that countless stepfathers and stepmothers have been granted adoption rights for decades.
They hired a smart, young attorney, Josh Guillory, an Iraqi War veteran who graduated at the top of his class in law school. Louisiana is a small state, and as it turns out, unbeknownst to me when I began writing this article, he happens to be the same Josh Guillory I knew as a classmate in high school. I call him up and congratulate him on his victory, and just as he was at Alexandria Senior High, Josh is gracious and humble. I ask him what attracted him to take up this case.
"I'm a conservative," he says, more than once. "And I'm a member of the NRA, even though I don't own any guns right now," he laughs. For Josh, this case has nothing to do with partisan politics; it is about ensuring equal protection under the law.
Josh submitted a trove of documents to the trial court, including "an Authentic Act of Consent to Adoption by the biological mother, Chasity Brewer, a criminal records check from the Lafayette Parish Sheriff's Office, the recommendations and records check for any validated complaints of child abuse or neglect from the Department of Child and Family Services and the Child Welfare State Central Registry Check." Everything turned up clean. His i's and j's were dotted, and the t's were crossed. Judge Rubin granted adoption rights to Angela, and for the first time ever, their rights as an intact and loving family unit, including their now 10-year-old son who had known them since birth as his parents, had been recognized in Louisiana.
However, the office of Attorney General Caldwell and, particularly, Special Assistant Attorney General Duncan, who had only just been hired back, were not pleased with the decision, and they tried their best to convince the court that these two loving, committed, legally married women shouldn't be allowed an intrafamily adoption of the boy they raised together since his birth.
Perhaps unwittingly, Caldwell and Duncan, in attempting to invalidate the adoption of a 10-year-old boy by a parent who had known him, cared for him and loved him since the very moment of his birth, turned this case into a much broader set of issues about the constitutionality of laws that prohibit same-sex marriages in Louisiana.
I am well aware that Louisiana is, at least for now, a reliably conservative state, and I fully appreciate the influence of the religious right in our politics. But what are we doing here?
We're paying a lawyer in Washington, D.C., $385 an hour to write creative essays styled as legal briefs about why two loving parents shouldn't be allowed to adopt their own child. We're denying decent, hardworking, patriotic and compassionate Americans — our neighbors — the basic dignity and the fundamental right of marriage. Louisiana taxpayers don't spend money attempting to prevent serial killers from marrying one another, and we don't spend money to stop 18-year-old girls from marrying predatory 65-year-old creeps.
I spent a great deal of my childhood in the classrooms and the sanctuary of First United Methodist Church in Alexandria. I taught Sunday School when I was a teenager, sang in the youth choir and, when I was 17, I delivered a sermon from the pulpit; the topic was grace. I earned a degree in religious studies when I was an undergraduate at Rice University. I don't know if any of this really qualifies me to opine on religion, but I know this: There is nothing righteous or holy about Bobby Jindal and Buddy Caldwell's relentless persecution of our LGBT brothers and sisters.
That was an awfully long digression. My apologies.
So, why will Judge Rubin's decision be remembered as historically significant? Because it was righteous and holy.
Lamar White Jr. is a native of Alexandria and author of CenLamar.com, an award-winning blog about Louisiana politics. He is in his final year of law school, concentrating on constitutional law and public policy, at the SMU Dedman School of Law in Dallas, where he lives with his golden retriever, Lucy Ana.