A federal judge upheld the state's marriage ban in September, but civil rights attorneys are appealing that decision to the Fifth Circuit Court of Appeals.
The decision stems from a case filed in mid-2013. After more than a year of procedural maneuvers, U.S. District Judge Martin Feldman (pictured above) upheld the state's marriage ban. He was the first federal judge to do so since the U.S. Supreme Court overturned the federal Defense of Marriage Act. Feldman agreed with arguments that numerous other federal judges have rejected since the DOMA decision.
Louisiana is part of the federal Fifth Circuit. In the other two Fifth Circuit states (Texas and Mississippi), federal judges have overturned marriage bans.
The Louisiana case is scheduled for a hearing before the Fifth Circuit January 9. On the same day, the three-judge panel will also hear the Texas case. It's expected that the judges will hear a marriage case from Mississippi that day as well.
It's hard to predict how the Fifth Circuit will rule. The judges there tend to be conservative, but in recent federal marriage decisions, that hasn't been a great predictor of how they'll rule. Both Democratic and Republican appointees have tended to overturn marriage bans.
Both the plaintiffs and the defendants have asked to skip the Fifth Circuit and jump straight to the U.S. Supreme Court. It's impossible to predict how or when the Supreme Court will respond to this request.
There's also a challenge to the ban in state court. A judge ruled in September that the ban is unconstitutional, prompting the state to appeal the decision. The state's attorney general, a Republican, has appealed that decision directly to the state Supreme Court, so it's possible that the state lawsuit could be concluded before the federal suit.
Louisiana is particularly hostile to LGBT equality. Most polling data has been collected only over just the last year and shows support growing, but hovering in the 30 percent range. A July poll from Public Policy Polling found that 55 percent of the state's residents opposed marriage equality, though the same poll also found 65 percent support for some form of legal relationship recognition, like civil unions. Both numbers actually indicate marginal improvment from a decade ago, when 78 percent of voters approved a constitutional ban on marriage and civil unions.
Antigay organizations wield considerable political power in Louisiana. Despite the state's sodomy ban being ruled unconstitutional by a Supreme Court decision in 2003, it remains on the books. The antigay group Louisiana Family Forum persuaded lawmakers in 2014 to maintain the sodomy ban.
In 2013, news emerged that the Sheriff's Department in East Baton Rouge had used the unconstitutional sodomy ban to arrest at least a dozen gay men since 2011 in a series of undercover sting operations. When reporters and legal advocates questioned the sheriff's justification for enforcing a law struck down a decade earlier, he said he didn't know the law was no longer enforceable. (Above: Committed same-sex couples have their relationships blessed by Pastor Dexter Brecht during religious services at the Metropolitan Community Church of Greater New Orleans October 10, 2004.)
Not yet. Although a state judge overturned the marriage ban, that decision has been stayed pending appeal, and for now only applies to three counties.
The only federal judge to rule on Louisiana's ban upheld it. If the Fifth Circuit overturns the ban, it's possible — though unlikely — that couples could be allowed to marry right away. Most federal judges have imposed a stay on their decisions, but increasingly, federal courts have permitted those stays to expire. The U.S. Supreme Court has indicated that it does not wish for marriage to remain on hold until it has an oppportunity to rule. (Above: Havard Scott, left, and Sergio March Prieto are one of four same-sex couples who have filed suit in Louisiana to have their marriages recognized.)
The federal Louisiana plaintiffs are employing a familiar argument: that marriage bans violate the Due Process and Equal Protection clauses of the U.S. Constitution. The plaintiffs (including Angie Costanza, pictured above) also argue that the ban imposes an undue hardship on the families with no legitimate justification.
The state plaintiffs advanced similar claims and found a more receptive audience in Judge Edward Rubin. He agreed that the ban could not be justified, comparing it to the "separate but equal" segregation laws upheld in Plessy v. Ferguson, which was also a Louisiana case.
Rubin also rejected the state's claim that the 1972 Supreme Court case Baker v. Nelson indicates that the U.S. Constitution does not apply to marriage laws. Recent Supreme Court rulings, Rubin wrote, supersede Baker.
Louisiana has put forth the same failed, discredited arguments as numerous other states that opted to defend their marriage ban. So why was Louisiana successful while other states failed? It comes down to the judge in this particular case, Martin Feldman, who was persuaded by arguments that other judges rejected.
Louisiana's arguments are certainly not novel. State attorneys provided the same tired claims about "responsible procreation" and also claimed that marriage is not a fundamental right — at least not when gay and lesbian couples are concerned. Judge Feldman also wrote that marriage rights for same-sex couples could lead to incest and child marriage.
It's hard to predict how these arguments will fare before the Fifth Circuit. On balance, the overwhelming majority of federal judges have dismissed these antigay claims. (Above: Shreveport family