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Louisiana LGBT rights group plans marriage equality suit

LGBT Legal Cases Marriage equality Marriage Equality Trials

Louisiana state sealMove over, Missouri–just a day after the ACLU announced it would file a marriage equality lawsuit in the Show-Me State, an LGBT rights group in Louisiana says it will bring a legal challenge against the state’s policy of refusing to recognize same-sex couples’ marriage licenses from other states.  Politico reports:

The Forum for Equality Louisiana and four gay married couples have called a Wednesday news conference on the issue.

A draft of the group’s planned lawsuit, obtained by The Associated Press, attacks the marriage recognition ban on several fronts.

For instance, it says state revenue department policy, based on the ban, essentially requires married same-sex couples who file joint federal tax returns to falsely claim they are single on state returns — a violation, the Forum says, of free speech.

As Politico points out, the lawsuit is based in large part on the aftermath of the U.S. Supreme Court decision last year invalidating Section 3 of the Defense of Marriage Act, and the complications faced by couples who are considered married by the federal government but unmarried by the state.  One example of a situation in which this conflict is particularly obvious is tax policy:

Louisiana law directs taxpayers to use the same status on state tax returns that they use on federal returns. Because of the state constitution’s ban, the revenue department requires that a gay couple filing as married on a federal tax return must file a Louisiana return as single or head of household. “The taxpayer 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, state Revenue Secretary Tim Barfield wrote last September.

That policy essentially forces married couples who file joint federal returns to face different tax liabilities than other married couples in the state, the Forum maintains. And it requires them to falsely deny their marital status, the lawsuit draft says.

Just yesterday, a Kentucky judge issued a decision invalidating the portions of that state’s laws which allowed it to refuse to recognize out-of-state marriage licenses for same-sex couples.  In that ruling, the judge wrote that “Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.”  There’s a good chance that an eventual ruling in the Louisiana case will strike similar tones.


  • 1. jpmassar  |  February 13, 2014 at 8:49 am

    Soon, every state will have its own lawsuit. In fact, are there any that don't at this point? (Any w/o marriage equality, of course)

  • 2. JimT  |  February 13, 2014 at 9:03 am

    Check out this site for a state by state listing

  • 3. Rik  |  February 13, 2014 at 10:21 am

    of the non -ME states, I noticed Alaska and the Dakotas

  • 4. seannynj  |  February 13, 2014 at 12:23 pm

    I could have sworn there was an article out about plans for a lawsuit in Alaska a couple of weeks ago.

  • 5. Equality On TrialSPLC fil&hellip  |  February 13, 2014 at 9:06 am

    […] in the south to face a marriage equality lawsuit. Same-sex couples have also filed lawsuits in Louisiana and Florida, while district courts in Oklahoma and Kentucky have struck down portions of the bans […]

  • 6. Ragavendran  |  February 13, 2014 at 10:11 am

    In two weeks, a Michigan trial begins:

  • 7. Tyler O.  |  February 13, 2014 at 10:30 am

    The judge is expecting the trial to last at least eight days? Good gawd.

  • 8. Ragavendran  |  February 13, 2014 at 10:54 am

    That's good. He is trying to do what Walker did in Hollingsworth. He is taking the time to build a strong foundation for this case as it makes it way to SCOTUS.

    Walker gave a talk at Caltech during Gaypril last year and I was there in the audience. He said that the reason he decided to conduct a full trial in Hollingsworth was that it is so much harder for appellate courts to overturn decisions on cases with a trial background on its merits, especially due to the "findings of fact", which cannot be erased. For example, look at what the 9th and SCOTUS did with Hollingsworth. Neither dared delve into the merits in their decision – they both ruled on procedural grounds: the 9th said a State having given certain rights cannot take them back (Romer to the rescue!), and SCOTUS simply dismissed the case on standing issues, vacating the 9th's decision. What's more, even the dissenting justices in SCOTUS, admittedly an oddball coalition, while admitting that they think the merits of the case should be addressed, stopped short of actually doing so. I at least expected Kennedy, who actually delivered a nearly blistering dissent (it is a good read, actually), to address the merits in some manner, but he didn't.

  • 9. JayJonson  |  February 13, 2014 at 2:22 pm

    Has anyone explained succinctly why these lawsuits challenge only a part of the ban (i.e., the nonrecognition of out of state marriages) rather than the ban itself? There apparently is a strategy at work here. Is it because the death certificate case in Ohio was successful? Is it considered an easier way to demonstrate the absurdity of the bans? Please explain.

  • 10. Ragavendran  |  February 13, 2014 at 2:35 pm

    One possibility, which I think is most likely and is actually smart thinking, is that SCOTUS might be more willing to take up an appeal that questions only the non-recognition part of state bans and strike them down. They could do so easily without touching the other part of the ban. It would very much fall in line with the slow, incremental approach towards advancing gay rights that they have taken so far.

    Once that happens, the in-state marriage bans will become all the more absurd. All they do then, in effect, is cause unnecessary hardship to same sex couples who have to marry out-of-state.

  • 11. Mike in Baltimore  |  February 13, 2014 at 3:57 pm

    Part of it is to find a weak point to attack, and the rest will also fall, albeit maybe slower.

    Out of state marriages is one such weak point. If the state allows heterosexual marriages from out of state (even if the marriage would not be allowed in-state [first-cousin marriages, for example] ) but doesn't recognize legal out of state same gender marriages, it is easy to show discrimination against the GLBT community.

    Once a structure starts to fall, it is much easier to cause all of it to fall.

    In other cases, if one state law says one thing, and another says differently, it is easier to attack the conflicting state laws than to attack an 'unconflicted' law. For example, if state law says everyone must file state tax returns in the same manner as Federal, but they don't allow same gender, legally married, couples to file state taxes as they filed their Federal returns, it becomes a game of which law or laws to break for the people filing the returns. And courts don't take a fancy to when the laws force people to play games as to which laws they are forced to break, and which ones they don't break.

  • 12. Pat  |  February 13, 2014 at 4:28 pm

    I was wondering the same, thinking that it would be more daring and efficient to just target the marriage ban itself directly. After all, we've had nice successes in Utah and Oklahoma, of all places! Maybe it would be useful to build ANOTHER lawsuit targeting the ban itself?
    It seems that this is more likely to speed up the "percolation" process and to produce circuit courts splits that might get SCOTUS involved.

  • 13. bayareajohn  |  February 13, 2014 at 4:58 pm

    Do not presume our movement to have unlimited resources.

  • 14. Zack12  |  February 13, 2014 at 5:17 pm

    Indeed, these things are free and some of the lawyers, though they do their best aren't handled to take on huge cases by themselves.
    I would say the lawyers in Michigian should have gotten more help from the start then they did.

  • 15. bayareajohn  |  February 13, 2014 at 7:47 pm

    "these things are free"
    I think the word NOT belongs in there. Phone posting is touchy.

  • 16. Zack12  |  February 13, 2014 at 10:34 pm

    Tell me about it. At least this wasn't a legal brief.

  • 17. Mike in Baltimore  |  February 13, 2014 at 6:36 pm

    So correct, John,

    Appeals are not free, even if the attorneys are doing the work pro bono.

    Each Circuit has document requirements, and a price list for each type of document. The Federal Rules of Appellate Procedure (F.R.A.P.) Rule 39 states this about copies:
    "(c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk's office is located and should encourage economical methods of copying."

    For example, in the 4th Circuit, there is a $5 filing fee, and a $500 docketing fee. Those fees MUST be paid in quite tight timeframes before the case can proceed.

    Each Circuit also requires one or more copies of certain documents, including the transcript of the previous court's decision (which can cost from $25-$50 or more to obtain). A copy of each page of each required document can cost from $.08 to $4.00 (or more) to duplicate. Thus a requirement for three copies of a 10 page document can cost from $2.40 to $120.00 (or more). Fifty pages? Multiply by five. The total costs of providing the required documents (and required number of copies) depend on 'local' costs to duplicate them, the number of pages in each document, the number of copies required by the court, the number of required documents, etc.

    It is not unusual for an appeal to cost at least $5,000.00, even if the attorney services are provided pro bono. And all estimated court costs have to be paid up front, not in arrears.

    And if the attorney services are not provided pro bono, the costs increase dramatically (attorney fees run from $50 per hour, usually $100-$500 per hour, to more than $1,000 per hour).

    Once a case is 'decided', the Court then can counter assess the costs to the losing party. Of course, the losing party might very well be the winning party at the next stage of appeal (SCOTUS).

    States are much more prepared to provide the required initial fees than individuals.

  • 18. bayareajohn  |  February 13, 2014 at 10:40 pm

    Thanks for this constructive application of your considerable attention to detail!

  • 19. Ragavendran  |  February 13, 2014 at 10:18 pm

    I think its nice for our side to be friendly to SCOTUS by providing a more diverse menu for them to pick the case they feel most comfortable taking up, given their mood on conference day. The menu for their next term could include mild cases such as Ohio's where out-of-state same sex marriages must only be recognized on death certificates, to the medium cases such as Kentucky's where out-of-state marriages must be recognized by the state, to the spicy cases such as Utah, Oklahoma, Virginia, where everything must go. If they feel ready to end the issue once and for all, they could go spicy, and if not, they could go mild or medium. They probably won't appreciate being cornered by an overly spicy menu. If their hand is forced, they might surprisingly rule against us.

  • 20. Steve  |  February 13, 2014 at 5:24 pm

    I think it's a great idea actually. It's really far overdue that someone challenged the absolutely idiotic and insane idea that such a basic thing as relationship recognition should vary within one country from one place to another. You'd think it'd be a no-brainer that the same laws apply everywhere when it comes to these things. It's simply not something local autonomy is good for.

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