Case 2:14-cv-00327 Document 1 Filed 02/12/14 Page 1 of 34

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FORUM FOR EQUALITY LOUISIANA, INC., *

JACQUELINE M. BRETTNER,

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M. LAUREN BRETTNER,

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NICHOLAS J. VAN SICKELS,

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ANDREW S. BOND,

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HENRY LAMBERT,

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R. CAREY BOND,

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L. HAVARD SCOTT, III, and

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SERGIO MARCH PRIETO,

*

*

*

*

Plaintiffs,

*

*

v.

*

*

TIM BARFIELD, in his official capacity as

*

Secretary of the Louisiana Department of Revenue,

* *

and DEVIN GEORGE, in his official capacity as *

Louisiana State Registrar,

*

*

Defendants.

*

********************************************

CIVIL ACTION NO. SECTION JUDGE MAGISTRATE JUDGE

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. Plaintiffs bring this action to challenge the constitutionality of Article XII, Section

15 of the Louisiana Constitution (the "Louisiana DOMA Amendment") and Article 3520(B) of

the Louisiana Civil Code. These laws are collectively referred to hereafter as the "Louisiana

Anti-Recognition Laws."

2. The Louisiana Anti-Recognition Laws prohibit Louisiana officials from

recognizing the lawful marriages of same-sex couples entered into in another jurisdiction where

same-sex marriages may be legally celebrated. The Louisiana Anti-Recognition Laws exempt

the marriages of gay, lesbian, and bisexual Louisiana residents from Louisiana's long-standing

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rule that a marriage that is valid where it was celebrated will be considered to be valid in Louisiana.
3. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief because the Louisiana Anti-Recognition Laws violate Plaintiffs' rights of equal protection and due process secured by the Fourteenth Amendment of the United States Constitution. As the Louisiana Anti-Recognition Laws have been applied by Defendant Tim Barfield, Secretary of the Louisiana Department of Revenue, they also violate Plaintiffs' First Amendment right of free speech.
4. Plaintiffs consist of four married, same-sex couples and a nonprofit organization that advocates for the rights of gay, lesbian, bisexual, and transgender Louisiana residents. Each couple is married under the law of another state or the District of Columbia. These marriages would be recognized by Defendants under Louisiana law but for the fact that the spouses are the same sex.
5. The Louisiana Anti-Recognition Laws lack a rational basis related to a legitimate governmental purpose. They "instruct[] [state] officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others." United States v. Windsor, 133 S. Ct. 2675, 2696. The laws have no legitimate purpose that "overcomes the purpose and effect to disparage and injure" same-sex couples. Id.
6. Louisiana's refusal to recognize same-sex marriages undermines the rights, protections, and financial security of same-sex couples and their children. Same-sex couples in Louisiana cannot enjoy the legal rights, protections, and responsibilities of marriage that their opposite-sex counterparts take for granted. For example, the Louisiana State Registrar refuses to

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issue a birth certificate identifying both members of a same-sex couple as parents when a child is born of the marriage. The Secretary of the Louisiana Department of Revenue rejects joint tax returns filed by married same-sex couples, despite the fact that the spouses may file a joint federal income tax return and are required to identify on the federal return that they are married. The Secretary will accept a joint return from a similarly situated opposite-sex couple, even if the opposite-sex couple's marriage was of a type that could not be legally celebrated in Louisiana. Louisiana's refusal to recognize the valid marriages of same-sex couples does not promote any legitimate policy objective and serves only to demean and harm the same-sex spouses and their children.
7. Further, the Secretary's requirement that the spouses of a same-sex marriage must sign state income tax returns that deny their marital status is an unconstitutional coercion of speech.
8. Plaintiffs seek: (a) a declaration that the Louisiana Anti-Recognition Laws are unconstitutional, (b) an injunction against Defendants prohibiting them from enforcing the Louisiana Anti-Recognition Laws and requiring them to fully recognize the marriages of Plaintiffs, and (c) an award of attorneys' fees and costs in accordance with 42 U.S.C. § 1988.
PARTIES 9. Plaintiff FORUM FOR EQUALITY LOUISIANA, INC. (the "Forum") is a Louisiana nonprofit corporation with its primary office in New Orleans, Louisiana. The Forum is a social welfare organization within the meaning of Section 501(c)(4) of the Internal Revenue Code. 10. In accordance with its bylaws, the Forum is a membership organization with dues-paying members. Each of the other Plaintiffs is a member of the Forum. The membership of the Forum also includes other individuals who live in Louisiana, who are married to a person
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of the same sex, and who would have standing to sue in their own right. These other individuals are hereafter referred to as the "Married Forum Members."
11. The mission of the Forum is to promote and sustain the equality of gay, lesbian, bisexual, and transgender persons in Louisiana through the establishment of fair and equitable laws. The claims asserted in this litigation are germane to the Forum's purpose.
12. Plaintiffs JACQUELINE M. BRETTNER ("Jackie") and M. LAUREN BRETTNER ("Lauren") are Louisiana citizens who reside in New Orleans, Louisiana. Jackie and Lauren have been in a long-term, committed relationship since 2011. Jackie works as an attorney in a New Orleans law firm. Lauren is a nurse at a local hospital.
13. After dating for about a year, Jackie and Lauren decided to marry. Jackie and Lauren felt that they could not imagine their lives without each other. On Valentine's Day 2012, Jackie and Lauren obtained a marriage license and celebrated their marriage in New York, where same-sex marriages may be legally celebrated.
14. Like many other committed, long-term couples, Jackie and Lauren decided to have a baby. Their daughter was born in April 2013. Lauren carried the baby to term and gave birth.
15. At the time of their baby's birth, Jackie and Lauren informed the hospital that they were legally married and asked that both of them be listed as parents of the child on the birth certificate. The hospital denied their request stating that the Louisiana State Registrar would not issue a birth certificate identifying Jackie as one of the baby's parents, even though Jackie and Lauren were married at the time of the birth, because Jackie and Lauren were of the same sex.
16. The baby's birth certificate omits Jackie and lists only Lauren as a parent of the baby.

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17. 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.
18. Because their marriage is not recognized in Louisiana, Jackie and Lauren have incurred additional expenses to protect their family that would otherwise be unnecessary. For example, they have commissioned living wills, advanced directives, and other documents to try to protect their family if tragedy were to strike. They understand, however, that these documents do not afford them all the protections that automatically come with marriage, and the documents could be ignored or challenged. For example, Jackie, Lauren, and their baby were recently traveling internationally, and they were questioned by federal security officials at the airport because they were unable to produce a birth certificate listing both of them as the parents of the baby.
19. Plaintiffs NICHOLAS J. VAN SICKELS ("Nick") and ANDREW S. BOND ("Andrew") are Louisiana citizens who reside in New Orleans, Louisiana. Nick and Andrew have been in a committed relationship since 2003. Nick is a physician at a New Orleans hospital and works at a clinic in Alexandria, Louisiana. Andrew teaches history at a local high school.
20. Nick moved to New Orleans in 2005 to complete his medical residency. After Hurricane Katrina, Nick evacuated to Houston, Texas, and spent time treating evacuees housed at the Astrodome. He returned to New Orleans in January 2006, and Andrew moved to New Orleans to be with him later that year. Andrew obtained a master's degree in U.S. history from Tulane University.

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21. In 2008, Andrew and Nick became engaged. However, they decided to wait to marry until their marriage would be legally recognized. In August 2013, after the Supreme Court decision in Windsor v. United States, Nick and Andrew obtained a marriage license and celebrated their marriage in the District of Columbia, where same-sex couples may legally marry.
22. Like many other long-term, committed couples, Nick and Andrew decided to raise a family by adopting a child. Because Louisiana prohibits unmarried couples from jointly adopting (see, e.g., La. Child. Code arts. 1198, 1243) and also prohibits same-sex marriage, Nick and Andrew could not jointly adopt a child. Thus, Nick, by himself, adopted their child in 2012.
23. Though Nick is legally the sole parent of the child, Nick has executed a provisional custody by mandate in accordance with Louisiana law, La. R.S. 9:951 et seq., that provides Andrew with a limited set of legal rights to care for their child. However, the document must be re-executed annually. In addition, if Nick died, Andrew could lose his rights to the child. The provisional custody by mandate granted by Nick to Andrew would only be effective for 15 days in the event of Nick's death. La. R.S. 9:952. Thus, Nick and Andrew's family is harmed by Louisiana's refusal to recognize their marriage and the consequence that Andrew may not adopt their child.
24. Plaintiffs HENRY LAMBERT ("Henry") and R. CAREY BOND ("Carey") are Louisiana citizens who reside in New Orleans, Louisiana. Henry and Carey met in 1972 and have been in a long-term, committed relationship since 1974. Henry and Carey co-own a real estate development firm that has renovated or constructed apartment buildings, condominiums, and hotels throughout greater New Orleans. Carey is a licensed contractor and the projects that he has supervised have received numerous awards for historic preservation. Henry formerly

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served in the administration of New Orleans Mayor Moon Landrieu and as Director of the Vieux Carré Commission. Henry is also a veteran, having served as an Army Captain of the 4th MP Company, 4th Infantry Division in the Vietnam War, for which he received the Bronze Star for Meritorious Achievement.
25. Henry and Carey have lived together since 1978. They currently reside in a condominium that they co-own. In recent years, Henry has developed a heart condition that has required regular treatment, including surgery. To secure the legal status of their relationship in case of either's illness or death and to solemnize their relationship in accordance with their personal religious beliefs, Henry and Carey decided to marry after more than thirty years together.
26. In December 2011, they obtained a license and celebrated their marriage in New York, where same-sex couples are permitted to marry. They married in a small gathering surrounded by their friends.
27. Since they have married, Henry and Carey feel closer to each other than ever before. They feel that they can talk more freely to others about their relationship, and their friends and colleagues have been supportive.
28. The State of Louisiana refuses to recognize the validity of Henry and Carey's New York marriage. As discussed below, Henry and Carey jointly filed a Louisiana individual income tax return for tax year 2012 that identified them as married taxpayers, but employees of the Louisiana Department of Revenue refused to accept the return.
29. Plaintiff L. HAVARD SCOTT, III ("Havard") is a Louisiana citizen who resides in Shreveport, Louisiana. Plaintiff SERGIO MARCH PRIETO ("Sergio") is a citizen of Spain and legal U.S. permanent resident who resides in Shreveport, Louisiana. Havard is an attorney

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who practices in Shreveport. He formerly worked as a partner at a large New Orleans-based law firm and in the mid-1990's opened and managed that firm's office in Miami, Florida, mainly representing cruise lines. Havard and Sergio met in 1996 while Sergio was working as a singer and dancer in the theater performance on a cruise ship operated by one of Havard's clients. Sergio is also an actor who has appeared in movies filmed in the Shreveport area and in other parts of the country. Havard and Sergio have lived together in a long-term, committed relationship since 1997.
30. Havard and Sergio moved to Shreveport together in 2003 to care for Havard's aging parents, including Havard's mother who had been diagnosed with Alzheimer's disease. In 2000, Havard and Sergio traveled to Vermont and entered into a civil union soon after Vermont's legislature permitted civil unions. In 2010, after Vermont legalized marriage for same-sex couples, they returned to Vermont and celebrated their marriage. Havard and Sergio married because they had already been together for more than a dozen years, planned on spending the remainder of their lives together, and desired to celebrate and solemnize their love and devotion to each other through the institution of marriage.
31. Before the Supreme Court's announcement of the Windsor decision, Sergio received permission from the U.S. Citizenship and Immigration Services ("USCIS") to remain in the United States on a non-immigrant O-1 Visa based on his employment and a showing of significant achievement in the performing arts in his native country of Spain. After Windsor was announced, USCIS announced that it would review petitions for permanent residency filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. Sergio applied to USCIS, his petition for permanent residency was approved, and Sergio

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now has his Green Card to permanently reside in the United States based on his status as Havard's spouse.
32. Despite the recognition of Havard and Sergio's marriage by federal immigration authorities, the State of Louisiana refuses to recognize the validity of their Vermont marriage. For example, as discussed below, the Louisiana Department of Revenue will not permit them to claim a married status for the purpose of state income taxes. Like other same-sex couples, they also do not enjoy the benefits of marriage that arise under Louisiana state law.
33. Jackie and Lauren, Nick and Andrew, Henry and Carey, Havard and Sergio, and the Married Forum Members are hereafter referred to collectively as the "Plaintiffs" or "Plaintiff Couples."
34. Defendant TIM BARFIELD ("Secretary Barfield") is sued in his official capacity as Secretary of the Louisiana Department of Revenue. In accordance with La. R.S. 36:453, Secretary Barfield is the executive officer vested by the State of Louisiana with responsibility for the policies of the Department of Revenue and for the administration, control, and operation of the functions, programs, and affairs of the department. Secretary Barfield is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint.
35. After the Supreme Court announced its decision in Windsor v. United States, 570 U.S. 12 (2013), invalidating Section 3 of the Defense of Marriage Act, the IRS issued Revenue Ruling 2013-17. The revenue ruling states that the IRS will treat same-sex couples, legally married in jurisdictions that recognize their marriages, as married for federal tax purposes regardless of whether the marriage would be legal in the couple's state of domicile. The Plaintiff Couples and other Louisiana same-sex couples who have married in other jurisdictions plan to or

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have already filed federal income tax returns as married taxpayers in accordance with the

revenue ruling.

36. On September 13, 2013, Secretary Barfield issued Revenue Information Bulletin

No. 13-024 ("the Bulletin"). The Bulletin states that in accordance with Article XII, Section 15

of the Louisiana Constitution, the Louisiana Department of Revenue will not follow Revenue

Ruling 2013-17 and will not recognize same-sex marriages that were legally entered when

determining an individual's filing status for purposes of Louisiana state income taxes.

37. Further, according to the Bulletin, the Plaintiff Couples and other similarly

situated same-sex Louisiana couples must claim that they are single — and deny the existence of

their marriages — on their Louisiana state tax returns. The Bulletin states:

The taxpayer must file a separate Louisiana return as single, head of household or qualifying widow, as applicable. The taxpayer(s) who filed a federal return pursuant to IRS Revenue Ruling 2013-17 may not file a Louisiana state income tax return as married filing jointly, married filing separately or qualifying widow. 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 Internal Revenue Service Revenue Ruling 2013-17.
La. Dep't of Revenue Information Bulletin 13-024 (emphasis added).

38. Henry and Carey claimed the status of married filing jointly for their federal and

Louisiana income tax returns for tax year 2012. The IRS accepted their federal return.

However, officials with the Louisiana Department of Revenue rejected their Louisiana return,

citing the Bulletin.

39. On or about January 31, 2014, the Louisiana Department of Revenue issued the

individual income tax return form (Form IT-540) and corresponding instructions for Louisiana

taxpayers for tax year 2013 (the "Instructions").

40. The Instructions contain the following statement in bold font:

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In compliance with the Louisiana Constitution, the Louisiana Department of Revenue shall not recognize same-sex marriages when determining filing status. Individuals who entered into a same-sex marriage in another state cannot file a Louisiana income tax return using a tax status of married filing jointly or married filing separately.

In the case of same-sex individuals who are considered married for federal tax purposes:

 Each individual must file a separate single, qualified head of household or qualifying widow(er) Louisiana tax return.

 Taxpayers must take the income on the federal joint tax return and allocate it between the taxpayers for use on their single, head of household, or qualifying widow(er) state tax return.

 Items of income must be allocated to the taxpayer who actually earned the income.

 No amended returns for past years will be permitted to change filing status.

41. The Bulletin and the Instructions are 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. See La. R.S. 47:293. Instead, to comply with the Bulletin, the

Plaintiff Couples and other married same-sex couples must draft hypothetical federal returns, not

to be filed, in order to comply with the Bulletin's directive that they "provide the same federal

income tax information on the Louisiana State Return that would have been provided prior to the

issuance of Internal Revenue Service Revenue Ruling 2013-17." Thus, they will incur greater

time and expense to file their state taxes than their opposite-sex counterparts.

42. The Bulletin, a direct result of the Louisiana Anti-Recognition Laws, will cause

countless married same-sex couples, including Plaintiffs, to face differing tax liabilities than they

would if the spouses were of the opposite sex.

43. Further, to comply with the Bulletin and the Instructions, married same-sex

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44. Defendant DEVIN GEORGE ("Registrar George") is sued in his official capacity as Louisiana State Registrar. Pursuant to La. R.S. 40:33, Registrar George is vested with the responsibility to enforce Louisiana's vital statistics laws. Registrar George is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint.
45. As a result of the Louisiana Anti-Recognition Laws, the State Registrar refuses to issue birth certificates naming same-sex spouses as the parents of a child born of the marriage. For example, the State Registrar refused to issue a birth certificate to the baby of Jackie and Lauren that identified Jackie as a parent of the child, despite the fact that Jackie and Lauren were married at the time of the birth.
46. But for the fact that Jackie is a woman, the State Registrar would have issued a birth certificate identifying her as a parent of the child. The Louisiana vital records laws require the State Registrar to identify the husband of the mother as the father on a child's birth certificate, regardless of an actual biological connection, unless the husband successfully disavows the child or an actual biological father other than the husband has acknowledged paternity. See La. R.S. 40:34. Further, the Louisiana Civil Code affords the husband of the mother of a child a presumption of paternity. La. Civ. Code art. 185. Further, regardless of whether he in fact has a biological tie to the child, "the husband of the mother may not disavow a child born to his wife as a result of an assisted conception to which he consented." La. Civ. Code art. 188.
47. The State Registrar's refusal to issue a birth certificate identifying Jackie as a parent of the child has caused harm to and demeaned Jackie, Lauren, and their baby.

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JURISDICTION AND VENUE

48. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343

because this is a civil action arising under the Constitution of the United States and because

Plaintiffs seek redress of the deprivation of their constitutional rights under color of state law.

49. Venue is proper in the Eastern District of Louisiana pursuant to 28 U.S.C.

§ 1391(b)(1) and (2) because Registrar George resides in this District, all Defendants are

Louisiana residents, and a substantial part of the events giving rise to Plaintiffs' claims occurred

in the Eastern District of Louisiana.

FACTUAL BACKGROUND

Louisiana's Recognition of the Marriages of Opposite-Sex Couples Celebrated in Other Jurisdictions

50. The Louisiana Anti-Recognition Laws require Louisiana officials to apply two

different sets of rules to determine the validity of a marriage that is entered outside the state,

depending on whether the spouses are of the same sex or are of opposite sexes.

51. For opposite-sex couples, Louisiana public policy is to make every effort to

uphold the validity of their marriages. Wilkinson v. Wilkinson, 323 So. 2d 120, 124 (La. 1975).

Louisiana applies the doctrine of favor matrimonii and presumes the validity of a marriage if

valid in the jurisdiction where contracted, even if the spouses would be prohibited from marrying

within the borders of Louisiana. See, e.g., La. Civ. Code art. 3520 cmt. (b) (1991). For example,

Louisiana recognizes a marriage between first cousins entered in another jurisdiction, even

though first cousins cannot legally marry in Louisiana. Ghassemi v. Ghassemi, 2007-1927 (La.

App. 1st Cir. 10/15/08), 998 So. 2d 731. Louisiana will also recognize a common-law marriage

contracted in a state where the marriage is legal, even though a common-law marriage cannot be

legally contracted in Louisiana. See, e.g., Brinson v. Brinson, 233 La. 417, 425, 96 So. 2d 653,

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656 (1957); Fritsche v. Vermilion Parish Hosp. Service Dist., 2004-1192, p. 3 (La. App. 3d Cir.
2/2/05), 893 So. 2d 935, 937-38. Applying Louisiana's doctrine to uphold the validity of
opposite-sex marriages, this Court has even recognized a foreign marriage contracted by proxy,
even though the marriage would be absolutely null if contracted in Louisiana. U.S. ex rel.
Modianos v. Tuttle, 12 F.2d 927 (E.D. La. 1925).
Louisiana's Refusal to Recognize the Marriages of Same-Sex Couples Celebrated in Other Jurisdictions
52. By contrast, Louisiana categorically refuses to recognize the marriage of a same-
sex couple for any reason. In 2004, the Louisiana legislature passed and Louisiana voters
approved the Louisiana DOMA Amendment, which singles out the families of gay, lesbian, and
bisexual Louisiana residents for an exception to the rule that Louisiana will honor marriages
performed in other jurisdictions. The amendment, codified at Article XII, Section 15 of the
Louisiana Constitution, states:
Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. 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.
53. Further, Article 3520(B) of the Louisiana Civil Code, enacted by the Louisiana
legislature in 1999, states:
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.

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54. Under the Louisiana Anti-Recognition Laws, a same-sex marriage "shall not be recognized in this state for any purpose" even if the marriage is legal in the jurisdiction where entered. Therefore, the marriages of loving, committed same-sex couples are singled out for discriminatory treatment and nonrecognition.
55. The Louisiana Anti-Recognition Laws are rooted in animus toward gay, lesbian, and bisexual persons and same-sex couples. The language of these provisions reflects that they were intended to subject the valid marriages of same-sex couples to inferior status, to pronounce that same-sex relationships are less worthy than opposite-sex relationships, and to deprive married same-sex couples and their children of the protections and benefits available to oppositesex households under Louisiana law.
Harms Caused by Louisiana's Refusal to Recognize the Marriages of Same-Sex Couples Celebrated in Other Jurisdictions
56. Same-sex couples, including Plaintiffs, and the children of same-sex couples are harmed in many ways by Louisiana's refusal to respect their marriages legally celebrated in other jurisdictions.
57. "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. 1, 12 (1967). "[T]he right to marry is of fundamental importance for all individuals." Zablocki v. Redhail, 434 U.S. 374, 383 (1978). Being married permits a couple to "affirm their commitment to one another before their children, their family, their friends, and their community." Windsor, 133 S. Ct. at 2689.
58. Louisiana laws regarding the recognition of out-of-state marriages must not infringe on the liberty interests of Louisiana citizens, including gay, lesbian, and bisexual

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citizens, that are guaranteed by the U.S. Constitution. "State laws defining and regulating marriage…must respect the constitutional rights of persons." Id. at 2691.
59. Louisiana does not provide rights and benefits similar to marriage to long-term committed partners outside of matrimony. Instead, the state treats unmarried couples as legal strangers to one another.
60. 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. This public rejection of the couple's families, including the legal relationships of Plaintiffs, 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.
61. Louisiana provides a broad range of statutory protections, benefits, and responsibilities for couples recognized as married under Louisiana law. The exclusion of samesex couples like Plaintiffs from the protections, benefits, and responsibilities of marriage causes them tangible harm. Numerous rights and duties are afforded to married, opposite-sex couples but denied to married, same-sex couples, including but not limited to the following:
a. Louisiana tax law provides that opposite-sex married couples may file a joint tax return for their Louisiana state income taxes. La. R.S. 47:293. According to the Bulletin, same-sex couples cannot file a joint return.
b. Only a single person or a married couple may petition to adopt a child in Louisiana. La. Child. Code arts. 1198, 1221. Thus, same-sex couples may not jointly adopt a child.

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c. The spouse of a member of the armed forces of the United States stationed in Louisiana on active duty is entitled to resident classification for tuition purposes at any Louisiana state college or university. La. R.S. 17:2137. Same-sex military couples do not qualify for this benefit.
d. During and after a marriage, subject to certain exceptions, each spouse has an evidentiary privilege to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse. La. Code Evid. arts. 504, 505. Same-sex couples do not enjoy this evidentiary privilege.
e. If a spouse dies due to an injury caused by an offense or quasi offense under Louisiana law, a widow or widower, along with children of the deceased, have the exclusive right to bring a survival action, in preference over the deceased's other relatives or the succession representative. La. Civ. Code art. 2315.1. Similarly, the widow or widower and children may bring a wrongful death action in preference over any other relatives of the deceased. La. Civ. Code art. 2315.2. These rights belonging to the widow or widower cannot be bequeathed and will not accrue in favor of his or her partner absent marriage. Therefore, the widow or widower of a married same-sex couple would be precluded under Louisiana law from bringing a survival or wrongful death action.
f. Under Louisiana law, married persons owe each other a duty of "fidelity, support, and assistance." La. Civ. Code art. 98. Same-sex couples are not obligated to support each other.
g. Married persons, by default under Louisiana law, create a community property regime upon the celebration of their marriage. La. Civ. Code art. 2334. Samesex couples have no means to establish a community property regime.

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h. Louisiana inheritance laws favor married couples. If a spouse dies intestate, the widow or widower succeeds to the decedent's share of the community property if there are no descendants, or to a usufruct over the decedent's share of the community property if there are descendants. La. Civ. Code arts. 889, 890. A widow or widower will also inherit the deceased spouse's separate property to the exclusion of other relatives if the deceased spouse dies intestate and leaves behind no living descendants, parents, siblings, or descendants of siblings. La. Civ. Code art. 894. If a member of a same-sex couple dies intestate, the surviving member of the couple will inherit nothing.
i. A child born to a married opposite-sex couple is presumed to be the child of both spouses. La. Civ. Code art. 185. Indeed, the husband of a birth mother is prohibited from disavowing a child that is conceived through assisted conception to which he consented. La. Civ. Code art. 188. By contrast, a child born to a same-sex couple is denied this legal bond with both parents. Thus, the child is deprived of the right to intestate succession of the property of the parent who does not give birth to the child. Moreover, absent the execution of a document authorizing provisional custody by mandate (which must be updated annually) or in the event of the death of the spouse that is recognized as the parent, the other spouse could be stripped of all rights and access to the child. Further, the nonrecognized parent faces additional hurdles to prove authority to act on behalf of the child, such as consenting to emergency room treatment. The denial of these protections leaves married same-sex couples vulnerable if one parent dies or is unable to care for the child. It is also contrary to the best interests of the child.

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j. Under the Louisiana Workers Compensation Law, the spouse of an

employee who dies as result of a work-related injury is conclusively presumed to be the

dependent of the deceased employee, if the opposite-sex spouses lived together, and is

entitled to receive a benefit payment. La. R.S. 23:1255. Same-sex spouses do not enjoy

this presumption.

k. For opposite-sex couples, a surviving spouse who resided with a deceased

spouse may continue to benefit from a homestead exemption on property that was owned

by the deceased spouse. La. R.S. 20:1. Same-sex couples cannot claim a homestead

exemption on each other's property and cannot enjoy this benefit in the event of a

spouse's death.

62. Thus, as a result of the Louisiana Anti-Recognition Laws, and their enforcement,

Plaintiffs and their families have been denied many tangible rights and benefits that marriage

confers on opposite-sex spouses.

Louisiana's Refusal to Recognize the Marriages of Same-Sex Couples Denies Them Equal Protection and Due Process

63. The Supreme Court has held that "[t]he Constitution's guarantee of equality 'must

at the very least mean that a bare congressional desire to harm a politically unpopular group

cannot justify disparate treatment of that group.'" Windsor, 133 S. Ct. at 2693 (quoting Dep't of

Agric. v. Moreno, 413 U.S. 528, 534-535 (1973)).

64. The Louisiana Anti-Recognition Laws deny recognition to the marriages of same-

sex couples, including the marriages of Plaintiffs, while recognizing the marriages of opposite-

sex couples that would similarly be invalid if celebrated in Louisiana. Louisiana's disparate

treatment of same-sex and opposite-sex couples who are married outside of Louisiana

demonstrates that the purpose of the Louisiana Anti-Recognition Laws is to "impose a

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disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages" that were lawfully celebrated in other states. Windsor, 133 S. Ct. at 2693. "The principal purpose [of the Louisiana Anti-Recognition Laws] is to impose inequality, not for other reasons like governmental efficiency." Id. at 2694.
65. The Louisiana Anti-Recognition Laws also violate married same-sex couples' liberty and due process rights. Louisiana's enforcement of the Louisiana Anti-Recognition Laws and its denial of recognition to the valid marriages of same-sex couples "places same-sex couples in an unstable position of being in a second-tier marriage." Id. at 2694. "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects…." Id. (internal citations omitted). "And it humiliates [the] children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives." Id. The Louisiana Anti-Recognition Laws "instruct[ ] [state] officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others." Id. at 2696.
66. "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws." Id. at 2695. And, "[w]hile the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved." Id. The Louisiana Anti-Recognition Laws violate these guarantees because "no legitimate purpose overcomes the purpose and effect to disparage and to injure" same-sex couples. Id. at 2696.

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Louisiana Has No Sufficient Justification for Its Refusal to Respect the Marriages of Same-Sex Couples

67. The Louisiana Anti-Recognition Laws cannot withstand constitutional scrutiny.

Louisiana cannot offer a justification that would warrant the inferior treatment of same-sex

couples that the laws impose.

68. Louisiana's history and tradition of recognition of only opposite-sex marriages,

standing alone, cannot justify the Louisiana Anti-Recognition Laws. "[N]either the antiquity of a

practice nor the fact of steadfast legislative and judicial adherence to it through the centuries

insulates it from constitutional attack." Williams v. Illinois, 399 U.S. 235, 239 (1970).

69. Further, the Louisiana Anti-Recognition Laws themselves are of relatively recent

origin. Article 3520(B) was enacted in 1999. The Louisiana DOMA Amendment was enacted

in 2004.

70. Moral or religious objections to same-sex relationships cannot justify this

departure from Louisiana's usual rule of liberally recognizing out-of-state marriages. Religious

and moral objections to same-sex marriage were reflected in the floor debate on the Louisiana

DOMA Amendment. For example, Representative Ray Romero, the last speaker before passage

of the amendment by the Louisiana House of Representatives on May 18, 2004, remarked that

the Louisiana DOMA Amendment was justified because "God put man to sleep, took a rib out

and performed the first marriage" (emphasis added). (Video of the debate is available online at

http://house.louisiana.gov/H_Video/2004/May2004.htm.) He also compared opponents of the

Louisiana DOMA Amendment to "descendants" of "Judas Iscariot." Moral condemnation of

same-sex couples and relationships is not a legitimate constitutional justification for legislation

and indeed reflects an improper aim to demean same-sex couples and their children. See

Lawrence v. Texas, 539 U.S. 558, 571 (2003).

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71. Louisiana cannot justify its refusal to recognize same-sex marriage on the basis of an interest in promoting responsible procreation within marriage. Louisiana cannot present any evidence that opposite-sex couples make decisions regarding marriage and procreation based on the status or recognition of same-sex marriages. Further, "[b]oth opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support." Kitchen v. Herbert, No. 13-217, 2013 WL 6697974, at *25 (D. Utah Dec. 20, 2013). The Louisiana Anti-Recognition Laws bear no rational relationship to any goal to foster stable, two-parent households.
72. Louisiana also cannot justify the Louisiana Anti-Recognition Laws by a purported goal of promoting an optimal environment for child-raising. There is no reason to believe that the Louisiana Anti-Recognition Laws affect the decision of opposite-sex couples whether to have or raise children. Nor would it be a permissible justification for the Louisiana Anti-Recognition Laws to deter committed same-sex couples from having children. Indeed, as demonstrated by Jackie and Lauren and by Nick and Andrew, same-sex couples in Louisiana are having and raising children in loving, stable households despite the Louisiana Anti-Recognition Laws. The Louisiana Anti-Recognition Laws injure these children by denying them and their families the benefits that Louisiana offers to families headed by a couple whose marriage is recognized.
73. Thus, the Louisiana Anti-Recognition Laws violate the Equal Protection and Due Process Clauses, and Louisiana cannot offer a legitimate governmental purpose to support these laws.

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CAUSES OF ACTION COUNT 1: Denial of Equal Protection on the Basis of Sexual Orientation 74. Plaintiffs repeat and fully incorporate Paragraphs 1 through 73 as though fully set forth herein. 75. The Fourteenth Amendment provides that no State may "deny to any person within its jurisdiction the equal protection of the laws." 76. Defendants' enforcement, under color of state law, of the Louisiana AntiRecognition Laws unconstitutionally discriminates against the Plaintiff Couples on the basis of sexual orientation. Defendants refuse to recognize Plaintiffs' valid out-of-state marriages while simultaneously honoring the out-of-state marriages of opposite-sex couples, including oppositesex couples who could not have legally married under Louisiana's own laws. 77. As a result of this discrimination, Plaintiffs are deprived of the many benefits afforded to opposite-sex couples whose out-of-state marriages are recognized in Louisiana. Louisiana's refusal to respect Plaintiffs' marriages, and Defendants' actions to enforce that refusal, denies married same-sex couples equal dignity and respect and treats same-sex couples and their children as second-class citizens and their legal marriages as second-class marriages. 78. This discriminatory treatment invites private bias and discrimination against Plaintiffs by telling all the world, including their own children, that their valid marriages are unworthy of recognition. 79. The Louisiana Anti-Recognition Laws' withdrawal of recognition from the out-ofstate marriages of same-sex couples reflects impermissible disapproval and animus toward samesex couples, "whose moral and sexual choices the Constitution protects." Windsor, 133 S. Ct. at 2694.

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80. The Plaintiff Couples are similar to or identical to married opposite-sex couples in all relevant respects. They have taken the same vows as other married couples, have made the same commitment to each other as other married couples, and have promised to spend their lives together as a family and to care for one another's physical, emotional, and financial well-being. They have been afforded all of the rights and responsibilities of civil marriage by the jurisdictions that granted them licenses to marry.
81. Like many other same-sex couples, two of the Plaintiff Couples are parents raising children together. They and their children are entitled to the same protections and responsibilities that state law provides to opposite-sex married couples and their children. They are also entitled to the same privacy, respect, and dignity that Louisiana provides to opposite-sex married couples and their children.
82. The Louisiana Anti-Recognition Laws violate the Equal Protection Clause by categorically withholding recognition of same-sex marriages on the basis of the couples' sexual orientation.
83. The Louisiana Anti-Recognition Laws are not even rationally related to a legitimate governmental interest, let alone the advancement of a compelling or important governmental interest.
84. Louisiana's refusal to recognize the valid out-of-state marriages of Plaintiffs based on their sexual orientation is subject to heightened scrutiny under the Equal Protection Clause.
85. Gays, lesbians, and bisexual people have historically been subjected to discrimination, both in Louisiana and nationally.
86. Sexual orientation bears no relation to a person's ability to achieve or contribute to society.

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87. Sexual orientation is a deep-seated, fundamental, and distinguishing characteristic that is core to an individual's identity and sense of self. No one should be required to deny or be forced to alter his or her sexual orientation to avoid discrimination, if that were possible.
88. Gay, lesbian, and bisexual Louisianans are a small, disfavored minority group and do not have the political strength to protect themselves from wrongful discrimination. Neither Congress nor the Louisiana legislature has passed any legislation to prevent discrimination against gays, lesbians, or bisexual persons in employment, housing, or public accommodations. Gay and lesbian persons are underrepresented in federal, state, and local elected offices. Louisiana, like many other states, has enacted a constitutional amendment (the Louisiana DOMA Amendment) to strip gays and lesbians of the right to marry and permanently enshrine discrimination against gay, lesbian, and bisexual persons in its state constitution.
89. Laws that discriminate on the basis of sexual orientation are grounded in impermissible sex- and sex-based stereotypes. They at least warrant the same level of heightened scrutiny that courts apply to laws that discriminate on the basis of sex.
90. Defendants' deprivation of Plaintiffs' constitutional rights under color of state law violates 42 U.S.C. § 1983.
91. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and which cause and will continue to cause irreparable harm to them and their families.
92. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as requested in this Complaint.

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COUNT 2: Denial of Equal Protection on the Basis of Sex 93. Plaintiffs repeat and fully incorporate Paragraphs 1 through 92 as though fully set forth herein. 94. Defendants' enforcement of the Louisiana Anti-Recognition Laws, under color of state law, by refusing to respect Plaintiffs' valid out-of-state marriages, discriminates against Plaintiffs on the basis of their sex. Because each Plaintiff is married to a person of the same sex, rather than a person of the opposite sex, and only for that reason, Defendants have denied Plaintiffs the benefits that are afforded to oppose-sex couples, including opposite-sex couples who could not marry in Louisiana. 95. The sex-based classifications created by the Louisiana Anti-Recognition Laws violate the Equal Protection Clause. Sex-based classifications are apparent on the face of the Louisiana Anti-Recognition Laws. They limit recognition to marriages comprised of "one man and one woman" and provide that "a purported marriage between persons of the same sex…shall not be recognized in this state for any purpose." 96. Because of these sex-based classifications, Plaintiffs are prevented from having their marriages recognized solely because of their sex. For example, if Jackie were a man rather than a woman, her marriage to Lauren, validly celebrated in New York, would be fully respected under Louisiana law. Because Jackie is a woman, however, Louisiana categorically denies recognition of her marriage and parental rights to the child born of the marriage. 97. Louisiana's categorical refusal to recognize Plaintiffs' marriages based on the sex of the spouses requires the application of heightened scrutiny under the Equal Protection Clause.

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98. Louisiana's refusal to recognize Plaintiffs' valid out-of-state marriage does not advance any important or compelling governmental interest that could withstand heightened scrutiny.
99. Defendants' deprivation of Plaintiffs' constitutional rights under color of state law violates 42 U.S.C. § 1983.
100. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and which cause and will continue to cause irreparable harm to them and their families.
101. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as requested in this Complaint.
COUNT 3: Denial of Due Process - the Fundamental Right to Marry 102. Plaintiffs repeat and fully incorporate Paragraphs 1 through 101 as though fully set forth herein. 103. The Fourteenth Amendment provides that no state may "deprive any person of life, liberty, or property without due process of law." 104. The right to marry the person of one's choice is a fundamental liberty interest protected by the Due Process Clause. Defendants' refusal, under color of state law, to recognize the valid out-of-state marriages of Plaintiffs unconstitutionally burdens this fundamental right to marry. The Louisiana Anti-Recognition Laws are unconstitutional on their face and as applied to Plaintiffs. 105. Defendants' actions infringe Plaintiffs' fundamental right to marry by penalizing Plaintiffs based on their exercise of their constitutionally protected choice to marry the person they love. Governmental interference with this fundamental right triggers strict scrutiny, and

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Louisiana's refusal to recognize the valid out-of-state marriages of same-sex couples who legally

marry in other jurisdictions may only be upheld upon a showing that the restriction is narrowly

tailored to advance a compelling governmental interest. Defendants cannot satisfy this

requirement because the challenged statutes are not even rationally related to the furtherance of a

legitimate governmental interest.

106. Defendants' deprivation of Plaintiffs' constitutional rights under color of state law

violates 42 U.S.C. § 1983.

107. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein,

which are of a continuing nature and which cause and will continue to cause irreparable harm to

them and their families.

108. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as

requested in this Complaint.

COUNT 4: Denial of Due Process Denial of Family Integrity, Autonomy, Privacy, and Intimate Association

109. Plaintiffs repeat and fully incorporate Paragraphs 1 through 108 as though fully

set forth herein.

110. The Due Process Clause protects an individual's fundamental liberty interests,

including each person's right to formation of a family, to privacy, and to intimate association.

111. Without a compelling governmental interest, the government may not burden

individuals' personal, private decisions about how and with whom they have chosen to form a

family. Defendants' refusal, under color of state law, to respect the valid out-of-state marriages

of Plaintiffs and other same-sex couples infringes Plaintiffs' constitutionally protected interests in

family association and integrity. Defendants' enforcement of the Louisiana Anti-Recognition

Laws imposes a disability on Plaintiffs and seeks to disparage and injure them based on their

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exercise of their constitutional right to form a family. This constitutes a "deprivation of the liberty of the person," Windsor, 133 S. Ct. at 2695, in violation of the Fourteenth Amendment.
112. Defendants' actions infringe Plaintiffs' constitutionally protected interests in autonomy, privacy, and intimate association by penalizing Plaintiffs' constitutionally protected choices in the most intimate and personal areas of their lives. The government cannot penalize Plaintiffs or similarly situated couples because they are in an intimate relationship with a person of the same sex. See Lawrence, 539 U.S. 558. Governmental interference with this fundamental liberty interest triggers strict scrutiny. Louisiana's refusal to recognize the valid out-of-state marriages of same-sex couples may thus be upheld only upon a showing that the restriction is narrowly tailored to advance a compelling governmental interest. Defendants cannot satisfy this requirement because the Louisiana Anti-Recognition Laws are not even rationally related to the furtherance of a legitimate governmental interest.
113. Defendants' deprivation of Plaintiffs' constitutional rights under color of state law violates 42 U.S.C. § 1983.
114. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and which cause and will continue to cause irreparable harm to them and their families.
115. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as requested in this Complaint.
COUNT 5: Equal Protection - Discrimination Based on the Exercise of Fundamental Rights
116. Plaintiffs repeat and fully incorporate Paragraphs 1 through 1115 as though fully set forth herein.

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117. The Equal Protection Clause protects Plaintiffs against discrimination concerning their exercise of fundamental rights and liberty interests protected by the Due Process Clause. Defendants may not constitutionally refuse, under color of state law, to respect the valid out-ofstate marriages of Plaintiffs and other same-sex couples who legally marry in another jurisdiction because they have exercised of their fundamental right to marry and their liberty interests in family integrity, autonomy, privacy, and intimate association. Therefore, the Louisiana AntiRecognition Laws, and any other Louisiana law that purports to deny recognition to marriages of same-sex couples validly celebrated in another jurisdiction, are unconstitutional on their face and as applied to Plaintiffs.
118. Defendants' refusal to recognize the marriages of Plaintiffs and similarly situated same-sex couples is unconstitutional discrimination with respect to Plaintiffs' exercise of their fundamental rights and liberty interests based on their sexual orientation and sex, and is subject to heightened or strict scrutiny.
119. Defendants' refusal to recognize Plaintiffs' marriages, pursuant to the Louisiana Anti-Recognition Laws, is not even rationally related to a legitimate governmental interest, let alone the advancement of a compelling or important governmental interest.
120. Defendants' deprivation of Plaintiffs' constitutional rights under color of state law violates 42 U.S.C. § 1983.
121. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and which cause and will continue to cause irreparable harm to them and their families.
122. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as requested in this Complaint.

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COUNT 6: Infringement of Free Speech 123. Plaintiffs repeat and fully incorporate Paragraphs 1 through 122 as though fully set forth herein. 124. Under the liberty interest guaranteed by the Fourteenth Amendment, the States may not intrude on the free speech rights granted to citizens by the First Amendment. First Nat'l Bank v. Belloti, 435 U.S. 765, 779 (1978). The First Amendment prohibits the government from compelling speech from citizens in support of its preferred viewpoint. "The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'" Wooley v. Maynard, 430 U.S. 705. 714 (1977) (quoting W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943)). The government may not compel a citizen to recite a pledge. W. Va. Bd. of Ed., 319 U.S. 624. Nor may the government condition the receipt of a governmental benefit on the recipient's agreement with a particular governmental policy. Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321 (2013). 125. Louisiana requires taxpayers to submit an income tax return that that includes a declaration affirming that the return is true and complete to the best of the taxpayer's knowledge. Taxpayers who violate this pledge are subject to investigation and penalties. 126. Secretary Barfield, through the Bulletin and the Instructions, has ordered that married, same-sex couples, including Plaintiffs, may not file a return claiming a status of married filing jointly or married filing separately. The Bulletin and the Instructions require Plaintiffs and other married, same-sex taxpayers to file as single, as a qualifying head of household, or as a qualifying widow or widower. 127. Thus, to comply with the Bulletin and the Instructions, Plaintiffs must sign a declaration that affirms that their marriages do not exist. In effect, Plaintiffs must choose either

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to deny the existence of their marriages on their tax returns or to face a penalty arising from the Louisiana Department of Revenue's enforcement of the Bulletin and the Instructions.
128. The enforcement of the Bulletin and the Instructions, as applied to Plaintiffs, is a form of compelled speech that requires Plaintiffs to affirm Louisiana's favored viewpoint regarding same-sex marriage at the cost of their personal dignity and the dignity of their families. Louisiana may not constitutionally compel a citizen to deny his or her marital status in order to comply with tax obligations. Nor may Louisiana constitutionally determine a taxpayer's liability based on whether the taxpayer complies with such a directive. Secretary Barfield's enforcement of the Louisiana Anti-Recognition Laws, as applied by the Bulletin and the Instructions, violates the First Amendment.
129. Secretary Barfield's infringement of Plaintiffs' free speech rights under color of state law violates 42 U.S.C. § 1983.
130. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and which cause and will continue to cause irreparable harm to them and their families.
131. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as requested in this Complaint.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter judgment as follows: 1. Declaring that Article XII, Section 15 of the Louisiana Constitution, Article 3520(B) of the Louisiana Civil Code, and any other Louisiana law that purports to deny recognition to the marriages of the Plaintiff Couples and other same-sex couples who have

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validly married under the law of another jurisdiction violate the Equal Protection and Due Process Clauses of the United States Constitution, and may not be enforced against the Plaintiffs or any other same-sex couple who validly married in another jurisdiction;
2. Enjoining enforcement of Article XII, Section 15 of the Louisiana Constitution, Article 3520(B) of the Louisiana Civil Code, and any other Louisiana laws that purport to deny recognition to the marriages of Plaintiffs and other same-sex couples who are married under the law of another jurisdiction by Defendants in their official capacities; by their officers, employees, agents, and all other individuals under Defendants' supervision, direction, or control; and by all persons acting in concert or participation with any Defendant;
3. Requiring Defendants in their official capacities; their officers, employees, agents, and all other individuals under Defendants' supervision, direction, or control; and all persons acting in concert or participation with any Defendant to recognize the marriages of Plaintiffs as valid and enforceable under Louisiana law;
4. Declaring that Secretary Barfield's issuance and enforcement of the Bulletin and the Instructions, through his rejection of tax returns submitted by married, same-sex couples who claim a married filing status, violates the free speech rights guaranteed to citizens by the First and Fourteenth Amendments, and enjoining further enforcement of the Bulletin and the Instructions;
5. Awarding Plaintiffs their costs, expenses, and reasonable attorneys' fees according to 42 U.S.C. § 1988 and any other applicable laws; and

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6. Granting such other and further relief as the Court deems just and proper.
Respectfully submitted,
/s/ J. Dalton Courson J. Dalton Courson, 28542, T.A. John M. Landis, 7958 Lesli D. Harris, 28070 Brooke C. Tigchelaar, 32029 Maurine M. Wall, 34139 STONE PIGMAN WALTHER WITTMANN L.L.C. 546 Carondelet Street New Orleans, Louisiana 70130 Telephone: (504) 581-3200 Attorneys for Plaintiffs

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 Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 1 of 32

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. v.
JAMES D. CALDWELL, LOUISIANA ATTORNEY GENERAL, ET AL.

CIVIL ACTION
NO. 13-5090 C/W NO. 14-97 & NO. 14-327
SECTION "F"

ORDER AND REASONS Before the Court are cross motions for summary judgment. The Court finds that defendants in this passionately charged national issue have the more persuasive argument. The State of Louisiana has a legitimate interest under a rational basis standard of review for addressing the meaning of marriage through the democratic process. For the reasons that follow, plaintiffs' motion for summary judgment is DENIED and defendants' motion for summary judgment is GRANTED.
Background These consolidated cases challenge the constitutionality of Louisiana's ban on same-sex marriage and its choice not to recognize same-sex marriages that are lawful in other states. Plaintiffs include six same-sex couples who live in Louisiana and are validly married under the law of another state, one same-sex couple who seeks the right to marry in Louisiana, and the Forum for

1

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Equality Louisiana, Inc., a nonprofit advocacy organization. Plaintiffs allege that Article XII, Section 15 of the Louisiana Constitution,1 which defines marriage as between one man and one woman, and article 3520(B) of the Louisiana Civil Code, 2 which denies recognition of same-sex marriages contracted in other states as being against Louisiana's strong public policy, violate their constitutional rights to Equal Protection and Due Process. 3 They

1

Marriage in the state of Louisiana shall consist

only of the union of one man and one woman. No

official or court of the state of Louisiana shall

construe this constitution or any state law to

require that marriage or the legal incidents

thereof be conferred upon any member of any union

other than the union of one man and one woman. A

legal status identical to or substantially similar

to that of marriage for unmarried individuals shall

not be valid or recognized. No official or court

of the state of Loui siana shall recognize any

marriage contracted in any other jurisdiction which

is not the union of one man and one woman.

La. Const. art. 12, § 15.

2

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.

La. Civ. Code art. 3520(B).
3 Plaintiffs in Case Number 14-97 challenge Article XII, Section 15 of the Louisiana Constitution and Louisiana Civil Code article 3520(B). In their prayer for relief in their complaint, those plaintiffs mistakenly refer to Code article 3520(B)(1), which does not exist, and to Article XII, Section 18 of the Constitution, but elsewhere in the complaint make clear that they mean Section 15. Plaintiffs in Case Number 14-327 challenge "Article XII, Section 15 of the Louisiana Constitution, Article 3520(B) of the

2

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also urge that the Louisiana Department of Revenue Information
Bulletin No. 13-024, 4 which requires same-sex couples lawfully
married in other states to certify on their Louisiana state income
Louisiana Civil Code, and any other Louisiana laws that purport to deny recognition to the marriages of Plaintiffs and other same-sex couples who are m arried under the law of another jurisdiction." Although those plaintiffs do not specifically identify the "other Louisiana laws" in their complaint, plaintiffs' supplemental brief submitted on July 16, 2014 requests "declaratory judgment holding that Louisiana Civil Code articles 86, 89, 3520(B), and Article 12, Section 15 of the Louisiana Constitution are unconstitutional...and the Court should enjoin their enforcement." Article 86 of the Louisiana Civil Code, like Section 15 of the Louisiana Constitution, defines marriage as "a legal relationship between a man and a woman." Code article 89, similar to Code article 3520, prohibits purported marriages between persons of the same sex.
4 The bulletin provides in part:
In compliance with the Louisiana Constitution, the Louisiana Department of Revenue shall not recognize same-sex marriages when determining filing status. If a taxpayer's federal filing status of married filing jointly, married filing separately or qualifying widow is pursuant to IRS Revenue Ruling 2013-17 [ruling that same-sex couples legally married in states that recognize such marriages will be treated as married for federal tax purposes], the taxpayer must file a separate Louisiana return as single, head of household or qualifying widow, as applicable. The taxpayer(s) who filed a federal return pursuant to IRS Revenue Ruling 2013-17 may not file a Louisiana state income tax return as married filing jointly, married filing separately or qualifying widow. 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 Internal Revenue Service Ruling 2013-17.
La. Revenue Info. Bulletin No. 13-024 (Sept. 13, 2013).
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tax returns that they are single, violates their First Amendment freedom of speech. Plaintiffs name Tim Barfield, the Louisiana Secretary of Revenue, Devin George, the Louisiana State Registrar, and Kathy Kliebert, the Louisiana Secretary of Health and Hospitals, as defendants.
The parties have filed cross motions for summary judgment. All issues have been briefed and the Court has held oral argument5.
I. Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely
5 Plaintiffs have seemingly abandoned their Full Faith and Credit Clause claim.
4

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colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.
This national same-sex marriage struggle animates 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. The defendants maintain that marriage is a legitimate concern of state law and policy. That it may be rightly regulated because of what for centuries has been understood to be its role. Not so say plaintiffs, who vigorously submit if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so, and their choice should be recognized by law as a marriage; never mind the historic authority of the state or the democratic process. These are
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earnest and thoughtful disputes, but they have become society's latest short fuse. One may be firmly resolved in favor of same-sex marriage, others may be just as determined that marriage is between a man and a woman. The challenge is how and where best to resolve these conflicting notions about what is marriage and what influence should the U.S. Supreme Court decision in United States v. Windsor have? See 133 S. Ct. 2675 (2013).
II. A. The Court first takes up the most hefty constitutional issue: Equal Protection. The Fourteenth Amendment to the Constitution commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause...essentially directs that all persons similarly situated be treated alike.” Stoneburner v. Sec'y of the Army, 152 F.3d 485, 491 (5th Cir. 1998)(citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). However, “if a law neither burdens a fundamental right nor targets a suspect class,” the Supreme Court has held, “the legislative classification [will survive] so long as it bears a rational relation to some legitimate end.” Romer v. Evans , 517 U.S. 620, 631 (1996)(citing Heller v. Doe, 509 U.S. 312, 319-20 (1993)); City of Cleburne, 473 U.S. at 440 (“The general rule is that legislation is presumed to be valid and will be sustained if the classification 6

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drawn by the statute is rationally related to a legitimate state interest.”). In the Equal Protection joust, a court's standard of review is central to this analysis. At play are three specialized lines of thought: rational basis, intermediate scrutiny, and heightened scrutiny. Rational basis is the least austere; heightened scrutiny the most arduous.
When conducting rational basis review, the Supreme Court has instructed that “we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government’s] actions were irrational.” Kimel v. Fl. Bd. of Regents , 528 U.S. 62, 84 (2000)(alterations in original)(internal quotation marks and citation omitted). "In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale seems tenuous." Romer , 517 U.S. at 632 (citations omitted). If, however, heightened scrutiny, the most unforgiving, is warranted, then a law must be "necessary to the accomplishment" of "a compelling governmental interest." Palmore v. Sidoti, 466 U.S. 429, 432 (1984).6
6 All federal court decisions post-Windsor have stricken same-sex marriage bans under all three standards. Bostic v. Schaefer, Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS 14298 (4th Cir. July 28, 2014); Bishop v. Smith, Nos. 14-5003 & 145006, 2014 U.S. App. LEXIS 13733 (10th Cir. July 18, 2014); Kitchen
7

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Plaintiffs submit that Louisiana's constitutional amendment
and Civil Code article violate the Equal Protection Clause by
prohibiting same-sex marriage within Louisiana, and by declining to
recognize same-sex marriages that are lawful in other states.
Plaintiffs argue that the laws are subject to heightened scrutiny
analysis because they discriminate on the basis of sexual
orientation and gender. Defendants counter that the laws trigger
rational basis review, which is satisfied by Louisiana's legitimate
interest in linking children with intact families formed by their
biological parents, and by ensuring that fundamental social change
occurs by social con sensus through democratic processes. See
Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting)("[F]or it
is entirely expected that state definitions would 'vary, subject to
v. Hebert, No. 13-4178, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014); Brenner v. Scott, Nos. 14-107 & 14-138, 2014 U.S. Dist. LEXIS 116684 (N.D. Fl. Aug. 21, 2014); Burns v. Hickenlooper, No. 14-1817, 2014 U.S. Dist. LEXIS 100894 (D. Colo. July 23, 2014); Love v. Beshear, No. 13-750, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. July 1, 2014); Baskin v. Bogan, Nos. 14-355, 14-404 & 14-406, 2014 U.S. Dist. LEXIS 86114 (S.D. Ind. June 25, 2014); Wolf v. Walker, No. 14-64, 2014 U.S. Dist. LEXIS 77125 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, No. 13-1861, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber , Nos. 13-1834 & 13-2256, 2014 U.S. Dist. LEXIS 68171 (D. Or. May 19, 2014); Latta v. Otter, No. 13-482, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Tanco v. Haslam, No. 13-1159, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn. March 14, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Lee v. Orr , No. 13-8719, 2014 U.S. Dist. LEXIS 21620 (N.D. Ill. Feb. 21, 2014); McGee v. Cole, No. 13-24068, 2014 U.S. Dist. LEXIS 10864 (S.D. W. Va. Jan. 29, 2014). Contra Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012)(applying rational basis to reject an Equal Protection challenge to Nevada's same-sex marriage ban). See United States v. Windsor, 133 S. Ct. 2675 (2013).
8

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constitutional guarantees, from one State to the next.'" (citation omitted)). Defendants point out that over 30 states choose not to recognize same-sex marriages, and some 20 states haven chosen to recognize same-sex marriages in free and open debate through the democratic process. Both sides invoke the Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2675 (Kennedy, J., majority opinion). But Windsor does little more than give both sides in this case something to hope for.
In Windsor , the Supreme Court held that Section 3 of the Federal Defense of Marriage Act (DOMA), which defined marriage as a union between one man and one woman only, violated Equal Protection and Due Process principles when applied to New York state law permitting same-sex marriage. Id. at 2693. Observing "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage," the Court inferred that Congress had acted with a discriminatory purpose. Id. The Court reasoned, to that point, that "'[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.'" Id. at 2692 (quoting Romer, 517 U.S. at 633).7
7 Windsor , in the context of the issues presented to this Court, is unclear (contrary to the conclusions in many recent federal court decisions). It is by its own terms, limited. Its "opinion and its holding are confined to those lawful marriages." 133 S. Ct. at 2696. However, Windsor also references an amorphous but alluring "evolving understanding of the meaning of equality." Id. at 2693. Hence this Court's unease that Windsor merely offers
9

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As to standard of review, Windsor starkly avoids mention of

heightened scrutiny. Plaintiffs' effort to equate Windsor

's

elusive phrase "careful consideration" with intermediate or

heightened scrutiny seems like intellectual anarchy. In the past,

the Supreme Court considered rational basis as fulfilling the

notion of "careful consideration." See Romer, 517 U.S. at 633-35

(requiring "careful consideration" by applying a rational basis

standard of review). If the Supreme Court meant to apply heightened

scrutiny, it would have said so.8 More importantly, the Court only

required "careful consideration" because of Congress' odd intrusion

on what the Court repeatedly emphasized was historic and essential

state authority to define marriage. By that same logic, no

additional or different consideration is warranted here, where

Louisiana is acting squarely within the scope of its traditional

authority, as underscored by Justice Kennedy. See Windsor, 133 S.

bits and pieces of hope to both sides. See

also id. at 2696

(Roberts, C.J., dissenting)("The Court does not have before it, and

the logic of its opinion does not decide, the distinct question

whether the States, in the exercise of their 'historic and

essential authority to define the marital relation,'...may continue

to utilize the traditional definition of marriage.").

8 This Court is not persuaded by the Ninth Circuit's decision
to the contrary in SmithKline Beecham Corp. v. Abbott Labs , 740 F.3d 471 (9 th Cir. 2014). Even less explicit regarding the
appropriate standard of review are the split decisions in the Tenth
and Fourth Circuits. See Bostic v. Schaefer, Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS 14298 (4 th Cir. July 28, 2014);
Bishop v. Smith, Nos. 14-5003 & 14-5006, 2014 U.S. App. LEXIS 13733 (10th Cir. July 18, 2014); Kitchen v. Heber,t No. 13-4178, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014).

10

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Ct. at 2693. Although both sides seek the safe haven of Windsorto
their side of this national struggle, and it is certainly without
dispute that the Supreme Court correctly discredited the tainted
unconstitutional result that DOMA had on democratically debated and
then adopted New York state law blessing same-sex marriages, this
Court finds it difficult to minimize, indeed, ignore, the high
court's powerful reminder in Windsor:
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S. 287, 298 (1942)("Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders"). The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the "[p]rotection of offspring, property interests, and the enforcement of marital responsibilities." Ibid. "[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce...[and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Haddock v. Haddock, 201 U.S. 562, 525 (1906); see also In re Burrus, 136 U.S. 586, 593-594 (1890)("The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States").
Id. at 2691 (alterations in original). Justice Kennedy further
instructs:
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation's beginning; for "when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States." Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384 (1930). Marriage laws
11

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vary in some respects from State to State....

Id. And, finally, he emphasizes why:

The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classifications have in the daily lives and customs of its people.

Id. at 2693. Windsor leaves unchanged "the concerns for state diversity and sovereign ty." See id. at 2697 (Roberts, C.J., dissenting).

But even apart from Windsor , plaintiffs seek to justify the

application of heightened scrutiny because, they argue, Louisiana's

laws and Constitution discriminate based on sexual orientation.

They fail, however, to recognize that neither the Supreme Court nor

the Fifth Circuit has ever before defined sexual orientation as a

protected class, despite opportunities to do so. See,

e.g. ,

Windsor, 133 S. Ct. 2675 (majority opinion); Romer, 517 U.S. 620;

Johnson v. Johnson, 385 F.3d 503 (5 th Cir. 2004); see also Baskin

v. Bogan , Nos. 14-355, 14-404 & 14-406, 2014 U.S. Dist. LEXIS

86114, at *34-*35 (S.D. Ind. June 25, 2014)(7 th Circuit precedent

mandates application of rational basis scrutiny to the issue of

sexual orientation discrimination). Admittedly, other federal

courts throughout the country have spoken as if they were deciding

the issue by discovering, at best, unclear case models on the more

demanding standard of review. Or, in the name of rational basis,

12

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they have at times applied the more exacting review standards.
This Court would be more circumspect. In light of still-binding
precedent, this Court declines to fashion a new suspect class. To
do so would distort precedent and demean the democratic process.
As Justice Powell stressed and cautioned in Furman v. Georgia in a
robust dissent regarding state-adopted capital punishment:
Less measurable, but certainly of no less significance, is the shattering effect this collection of views has on the root principles of stare decisis, federalism, judicial restraint and--most importantly–-separation of powers....In a democracy the first indicator of the public's attitude must always be found in the legislative judgments of the people's chosen representatives.
408 U.S. 238, 417, 436-37 (1972). Of the role of the courts in
such matters:
First, where as here, the language of the applicable provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great....But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court giving effect to its own notions of what is wise or politic.
Id. at 431, 433. And his emphatic trust in deference for free and
open debate in a democracy resonates:
It seems to me that the sweeping judicial action undertaken today reflects a basic lack of faith and confidence in the democratic process.
Id. at 464-65.
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Plaintiffs also add that they suffer discrimination based on

gender. Plaintiffs, as do most other federal courts confronted

with these issues, equate this case with Loving v. Virginia , 388

U.S. 1, 8 (1967), where the Supreme Court rightly condemned racial

discrimination even though Virginia's antimiscegenation marriage

laws equally applied to both races. Plaintiffs' argument betrays

itself. Heightened scrutiny was warranted in Loving because the

Fourteenth Amendment expressly condemns racial discrimination as a

constitutional evil; in short, the Constitution specifically bans

differentiation based on race. See id.; see also Bishop v. Smith,

Nos. 14-5003 & 14-5006, 2014 U.S. A pp. LEXIS 13733, at *145 (10 th

Cir. July 18, 2014)(Kelly, J., concurring in part and dissenting in

part)("Oklahoma's efforts to retain its definition of marriage are

benign, and very much unlike race-based restrictions on marriage

invalidated in Loving v. Virginia ." (citation omitted)). Even

ignoring the obvious difference between this case and Loving , no

analogy can defeat the plain reality that Louisiana's laws apply

evenhandedly to both genders--whether between two men or two women.

Same-sex marriage is not recognized in Louisiana and is reasonably

anchored to the democratic process. The Court is therefore

satisfied that rational basis applies. See

also Bostic v.

Schaefer, Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS

14298, at *92 (4th Cir. July 28, 2014)(Niemeyer, J., dissenting).

14

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B.
So, is there even any rational basis for Louisiana's
resistance to recognize same-sex marriages entered into in other
states, or to authorize same-sex marriages in Louisiana?
Plaintiffs contend not, and conclude that Louisiana's laws and
Constitution can only be supported by a hateful animus. Defendants
rejoin that the laws serve a central state interest of linking
children to an intact family formed by their biological parents.
Of even more consequence, in this Court's judgment, defendants
assert a legitimate state interest in safeguarding that fundamental
social change, in this instance, is better cultivated through
democratic consensus. This Court agrees.9
9 The Court acknowledges that its decision runs counter to all but two other federal court decisions. SeeMerritt v. Attorney Gen., No. 13-215, 2013 WL 6044329 (M.D. La. Nov. 14, 2013); Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). Butsee Bostic v. Schaefer, Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS 14298 (4th Cir. July 28, 2014); Bishop v. Smith, Nos. 14-5003 & 145006, 2014 U.S. App. LEXIS 13733 (10th Cir. July 18, 2014); Kitchen v. Hebert, No. 13-4178, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014); Brenner v. Scott, Nos. 14-107 & 14-138, 2014 U.S. Dist. LEXIS 116684 (N.D. Fl. Aug. 21, 2014); Burns v. Hickenlooper, No. 14-1817, 2014 U.S. Dist. LEXIS 100894 (D. Colo. July 23, 2014); Love v. Beshear, No. 13-750, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. July 1, 2014); Baskin v. Bogan, Nos. 14-355, 14-404 & 14-406, 2014 U.S. Dist. LEXIS 86114 (S.D. Ind. June 25, 2014); Wolf v. Walker, No. 14-64, 2014 U.S. Dist. LEXIS 77125 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, No. 13-1861, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber , Nos. 13-1834 & 13-2256, 2014 U.S. Dist. LEXIS 68171 (D. Or. May 19, 2014); Latta v. Otter, No. 13-482, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Tanco v. Haslam, No. 13-1159, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn. March 14, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Lee v. Orr , No. 13-8719, 2014 U.S. Dist. LEXIS 21620 (N.D. Ill.
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Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents. Louisiana's regime pays respect to the democratic process; to vigorous debate. To predictable controversy, of course. The fact that marriage has many differing, even perhaps unproved dimensions, does not render Louisiana's decision irrational. Nor does the opinion of a set of social scientists (ardently disputed by many others, it should be noted) that other associative forms may be equally stable, or the view that such judgments vilify a group (even though one finds them in a majority of the states, but not in all states). 10 Even the fact that the state's precepts work to one gr oup's disadvantage does not mandate that they serve no rational basis. SeeRomer, 517 U.S. at 632. The Court is p ersuaded 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. See Kimel, 528 U.S. at 84;
Feb. 21, 2014); McGee v. Cole, No. 13-24068, 2014 U.S. Dist. LEXIS 10864 (S.D. W. Va. Jan. 29, 2014). But cf. Bishop, 2014 U.S. App. LEXIS 13733, at *148 (Kelly, J., concurring in part and dissenting in part)("Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis.").
10 This Court does not e nter the dispute of which "science" on this issue is correct. The contentious debate in social science literature about what is "marriage" in today's world does not drive or inform the Court's decision.
16

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Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1014 (D. Nev. 2012).
(Shortly before Windsor , the district court in Sevcik adopted
arguments by Nevada that closely mirror Louisiana's submissions).
The Court also hesitates with the notion that this state's
choice could only be inspired by hate and intolerance. Louisiana
unquestionably respected "a statewide deliberative process that
allowed its citizens to discuss and weigh arguments for and against
same-sex marriage." See Windsor, 133 S. Ct. at 2689. All sides
for and against grappled with this solemn issue. The Court
declines to assign an illicit motive on the basis of this record,
as have also two federal appellate judges as well.11
Windsor repeatedly and emphatically reaffirmed the
11 In his concurrence in the recent case of Bishop v. Smith, Nos. 14-5003 & 14-5006, 2014 U.S. App. LEXIS 13733, *93-*133 (10th Cir. July 18, 2014), Judge Holmes also declined to agree that state laws limiting same-sex marriage suffer from unconstitutional animus. Judge Holmes, in a very careful opinion, explained that a finding of animus generally requires some structural aberration in the law at issue, like the imposition of wide-ranging and novel deprivations upon the disfavored group or deviation from the historical territory of the sovereign simply to eliminate privileges that the disfavored group might otherwise enjoy. Id.at *106. Judge Holmes offered Romer as an example of the former, and Windsor of the latter, but distinguished the same-sex marriage ban cases because of the stark absence of any structural irregularity. Id. at *133. Judge Holmes reasoned that Oklahoma's prohibition was neither as far reaching as the amendment in Romer nor a departure from traditional sovereign roles like DOMA was in Windsor . Id. This Court agrees entirely with Judge Holmes on this point and concludes the animus doctrine is inapplicable here. To reach a contrary result, it would be necessary to "stretch to accommodate changing societal norms." See Bostic v. Schaefer , Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS 14298, at *43 (th4 Cir. July 28, 2014).
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longstanding principle that the authority to regulate the subject of domestic relations belongs to the states, subject to indistinct future constitutional guarantees that in Windsor were, by its expressed limits, left open and rather inexact. Id.at 2691, 2692, 2693, 2696. Although opinions about same-sex marriage will understandably vary among the states, and other states in free and open debate will and have chosen differently, that does not mandate that Louisiana has overstepped its sovereign authority. Seeid. at 2692. Because this Court concludes that Louisiana's laws are rationally related to its legitimate state interests, as defendants plausibly focus, they do not offend plaintiffs' rights to Equal Protection.12
C. The parties also seek summary judgment on Due Process Clause grounds. The Fourteenth Amendment prohibits a state from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This protection has been viewed as having both procedural and substantive components when state action is challenged. As the Fifth Circuit has observed:
12 This Court finds common cause with Justice Powell's cautionary injunction in Furman v. Georgia about judicial action that "reflects a basic lack of faith and confidence in the democratic process." 408 U.S. at 464-65.
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Procedural due process promotes fairness in government decisions “by requiring the government to follow appropriate procedures when its agents decide ‘to deprive any person of life, liberty, or property.’” Daniels v. Williams, 474 U.S. 327, 331 (1986). Substantive due process, “by barring certain government actions regardless of the fairness of the procedures used to implement them, [ ] serves to prevent government power from being ‘used for purposes of oppression.’” Id.

The John Corp. v. The City of Houston, 214 F.3d 573, 577 (5th Cir. 2000)(additional citation omitted).

The substantive component of due process, which plaintiffs

count on here, protects fundamental rights that are so “implicit in

the concept of ordered liberty” that “neither liberty nor justice

would exist if they were sacrificed.” Palko v. Connecticut , 302

U.S. 319, 325-36 (1937). “Fundamental rights protected by

substantive due process are protected from certain state actions

regardless of what procedures the state uses.” Doe v. Moore, 410

F.3d 1337, 1343 (11 th Cir. 2005)(citing the prominent decision in

Washington v. Glucksberg , 521 U.S. 702, 721 (1997)). And such

fundamental rights have been held to include “the rights to marry,

to have children, to direct the education and upbringing of one’s

children, to marital privacy, to use contraception, to bodily

integrity, and to abortion.”

Glucksberg , 521 U.S. at 720

(citations omitted). The Supreme Court has, however, “always been

reluctant to expand the concept of substantive due process because

guideposts for responsible decisionmaking in this unchartered area

are scarce and open-ended.” Id. (internal quotation marks and

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citation omitted). There exists then, a central notion that anchors the doctrine of substantive due process: the indispensable presence of a fundamental right.
To establish a substantive due process violation, the aggrieved person must describe the infringed right with particularity and must establish it as “deeply rooted in this Nation's history and tradition.” Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505 (5 th Cir. 2006)(internal quotation marks and citations omitted). If a right is so "deeply rooted" as to be fundamental at its core, a more exacting scrutiny is required; if not, the Court applies the less demanding rational basis review. Id.
Plaintiffs fervently insist that Louisiana's laws and Constitution violate their right to substantive due process by depriving them of the fundamental right to marry. Plaintiffs argue that Louisiana substantially burdens what they envision as their fundamental right to marry and that strict scrutiny is the standard of review to guide this Court. Defendants counter, however, that there is no fundamental right to same-sex marriage and that rational basis review is appropriate. Defendants correctly point to Washington v. Glucksberg, 521 U.S. at 721, which mandates that plaintiffs provide a "careful description" of the asserted fundamental right to succeed on a substantive due process challenge. The Court agrees that Glucksberg requires a "careful
20

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description," which, here, means that plaintiffs must specifically assert a fundamental right to same-sex marriage.13
No authority dictates, and plaintiffs do not contend, that same-sex marriage is anchored to history or tradition. 14 The concept of same-sex marriage is "a new perspective, a new insight,"

13 The cases invoked by plaintiffs, including Turner v.

Safely, 482 U.S. 78 (1987), Zablocki v. Redhail , 434 U.S. 374

(1978), and Loving , 388 U.S. 1, do not relieve them of their

obligation to carefully describe the fundamental right at issue

here. Although a procession of federal courts accepted similar

arguments, that trinity of Supreme Court cases does not support the

proposition that marriage is a fundamental right guaranteed to

everyone without limitation; indeed, each case involved marriages

between one man and one woman. See Zablocki, 434 U.S. at 386 ("By

affirming the fundamental character of the right to marry, we do

not mean to suggest that every state regulation which relates in

any way to the incidents of or prerequisites for marriage must be

subjected to strict scrutiny."). Defendants aptly note that it

could not be maintained

that the states violate a general

fundamental right to marry when they restrict marriages between

minors, first cousins, or more than two people, for example. In a

case such as this, the plaintiffs necessarily assert an interest

apart from and beyond the historic and traditional right to marry.

Even plaintiffs admit that such unions would have unacceptable

"significant societal harms."

14 Defendants point to Baker v. Nelson, 409 U.S. 810 (1972),

in support of the proposition that there is no Supreme Court

precedent for a fundamental right to marry someone of the same sex.

In Baker v. Nelson, the Supreme Court summarily rejected "for want

of a substantial federal question" the claim that the Constitution

requires a state to authorize same-sex marriage. Defendants point

out that Baker was decided five years after Loving . Unlike the

defendants in many of the other same-sex marriage cases before

other federal courts, however, defendants here do not contend that

Baker forecloses this Court's review or mandates the disposition of

this case. See also Merritt v. Attorney Gen., No. 13-215, 2013 WL

6044329, at *2 (M.D. La. Nov. 14, 2013)(citing Baker

for the

proposition that the Constitution does not require states to permit

same-sex marriage). The Court need not enter the differing

contentions about the viability of Baker v. Nelson.

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nonexistent and even inconceivable until very recently. Windsor, 133 S. Ct. at 2689. M any states have democratically chosen to recognize same-sex marriage. But until recent years, it had no place at all in this nation's history and tradition. Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental. See Malagon, 462 F.3d at 505. The re is simply no fundamental right, historically or traditionally, to same-sex marriage.15
With no fundamental right at stake,16 the Court again reviews under rational basis. The Court has already held that Louisiana's

15 This Court is not the first to reach this conclusion, even post-Windsor. See Love v. Beshear , No. 13-750, 2014 U.S. Dist. LEXIS 89119, at *18 (W.D. Ky. July 1, 2014)("If the inquiry here is viewed as a contours-of-the-right question, holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take."); see also Bostic v. Schaefer, Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS 14298, at *92 (th4 Cir. July 28, 2014)(Niemeyer, J., dissenting)("At bottom, the fundamental right to marriage does not include a right to same-sex marriage."); Bishop v. Smith , Nos. 14-5003 & 14-5006, 2014 U.S. App. LEXIS 13733, *147-*148 (10th Cir. July 18, 2014)(Kelly J., concurring in part and dissenting in part)("Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process.").

16 Plaintiffs also summarily allege violations of their

fundamental rights to remain married and to parental authority, but

these claims fail for the same reason. The Court notes, however,

that other federal district court opinions post-Windsor

have

favored same-sex marriages under all standards of review. See,

e.g., Kitchen v. Herbert, No. 13-217, 2013 U.S. Dist. LEXIS 179331

(D. Utah Dec. 20, 2013), aff'd, No. 13-4178, 2014 U.S. App. LEXIS

11935 (10th Cir. June 25, 2014); Wolf v. Walker , No. 14-64, 2014

U.S. Dist. LEXIS 77125 (W.D. Wis. June 6, 2014); Whitewood v. Wol,f

13-1861, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. May 20, 2014).

22

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 23 of 32
law and Constitution survive under a rational basis review. Although plaintiffs maintain that the laws are improperly grounded only in tradition and moral objection, defendants offer a credible, and convincing, rational basis to the contrary. SeeHeller v. Doe, 509 U.S. 312, 319-20 (1993).
Although plaintiffs would fashion a modern constitutional construct and place side by side this case to Lawrence v. Texas , 539 U.S. 558 (2003), in which the Supreme Court held that Texas' antisodomy statute violated substantive due process, the Court in Lawrence specifically found that the Texas law furthered no legitimate state interest sufficient to justify its intrusion on the right to privacy. Id. at 578. This Court is persuaded 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, as specifically underscored by Justice Kennedy in Windso.r And the Court is not persuaded that Lawrence, a right to privacy model, provides any support for a substantive due process liberty to same-sex marriage. The Court finds it helpful to call attention that Lawrence , by its own terms, did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id. ; see also id. at 585 (O' Connor, J., concurring)("Texas cannot assert any legitimate state interest here, such as national security or preserving the
23

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 24 of 32
traditional institution of marriage. Unlike the moral disapproval of same-sex relations–-the asserted interest in this case–-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." (emphasis added)).
D. Both sides also seek summary judgment on plaintiffs' claim that Louisiana Department of Revenue Information Bulletin No. 13024 violates their First Amendment rights. The First Amendment to the United States Constitution declares that "Congress shall make no law...abridging the freedom of speech." U.S. Const. amend. I. "As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." United States v. Stevens, 559 U.S. 460, 468 (2010)(internal quotation marks and citation omitted). And the First Amendment also means that the government cannot compel a person to speak or to parrot a favored viewpoint. Wooley v. Maynard , 430 U.S. 705, 714 (1977)("We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all."); W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 642 (1943)("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of
24

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 25 of 32
opinion or force citizens to confess by word or act their faith therein."). In the context of compelled speech, c ourts must discern whether a law "regulates conduct, not speech"; only infringements of speech, and not conduct, warrant First Amendment protection. Rumsfeld v. Forum for Academic & Inst. Rights , 547 U.S. 47, 60 (2006)(distinguishing regulation of what someone "must do" from "what they may or may not say" (emphasis in original)).
Bulletin No. 13-024 requires same-sex couples who are lawfully married in other states to nevertheless describe that they are of single status on their Louisiana state income tax returns. Plaintiffs say that compels speech. Defendants answer that the targeted bulletin merely prescribes conduct. They add that the required conduct is necessary to an essential government function, collecting state taxes. They stress helpfully that the Fifth Circuit recently agreed with the Eighth Circuit that the required disclosure of information on a tax form is simply not compelled speech under the First Amendment. SeeUnited States v. Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014)("'There is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly society....'" (quoting United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995)).
The Court is satisfied that Bulletin No. 13-024 does not contravene the First Amendment; that the disclosure requirement regulates conduct, not speech. See Rumsfeld , 547 U.S. at 60; Arnold, 740 F.3d at 1034-35. Despite plaintiffs' contentions to
25

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 26 of 32

the contrary, the bulletin has

nothing to do with forcing

plaintiffs to disclaim their "deep spiritual and emotional belief

in the inviolability of their marriages," but, rather, it simply

requires plaintiffs to provide the government with information

necessary for the purpose of state tax collection. See Sindel, 53

F.3d at 878. Taking plaintiffs' argument to its logical

conclusion, any state policy with which one disagrees could

constitute compelled speech. The Court declines to endorse that

shapeless result.

III.

This Court has arduously studied the volley of nationally

orchestrated court rulings against states whose voters chose in

free and open elections, whose legislatures, after a robust, even

fractious debate and exchange of competing, vigorously differing

views, listened to their citizens regarding the harshly divisive

and passionate issue on same-sex marriage. The federal court

decisions thus far exemplify a pageant of empathy; decisions

impelled by a response of innate pathos. Courts that, in the words

of Justice Scalia in a different context in Bond v. United States,

134 S. Ct. 2077, 2094 (2014)(concurring opinion), appear to have

assumed the mantle of a legislative body. In fact Judge Niemeyer

in his "linguistic manipulation" dissent in Bostic v. Schaeferputs

it even more candidly:

This analysis is fundamentally flawed because it fails to take into account that the "marriage" that has long been recognized by the Supreme Court as a fundamental right is

26

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 27 of 32

distinct from the newly purposed relationship of a "samesex marriage." And this failure is even more pronounced by the majority's acknowledgment that same-sex marriage is a new notion that has not been recognized for "most of our country's history." Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.
Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS 14298, at
*71-*72 (4th Cir. July 28, 2014)(emphasis added)(citation omitted1)7.
It would no doubt be celebrated to be in the company of the
near-unanimity of the many other federal courts that have spoken to
this pressing issue, if this Court were confident in the belief
that those cases provide a correct guide.
Clearly, many other courts will have an opportunity to take up
the issue of same-sex marriage; courts of appeals and, at some
point, the U.S. Supreme Court. The decision of this Court is but
one studied decision among many. Our Fifth Circuit has not yet
spoken.
The depth of passion inherent in the issues before this Court
defies definition. That federal courts 18 thus far have joined in

17 One case, pre-Windsor but rather close in time, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012), from Nevada, stands apart from the decisions descriptively spawned by Windsor and the contests that followed throughout the nation. Plaintiffs say little, if anything, about Sevcik . See also Merritt v. Attorney Gen., No. 13-215, 2013 WL 6044329 (M.D. La. Nov. 14, 2013).

18 The Tenth Circuit, in a

split decision, has recently

spoken. Kitchen v. Herbert , No. 13-4178, 2014 U.S. App. LEXIS

11935 (10th Cir. June 25, 2014). As has the Fourth Circuit. Bostic

v. Schaefer, Nos. 14-1167, 14-1169 & 14-1173, 2014 U.S. App. LEXIS

14298 (4th Cir. July 28, 2014).

27

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 28 of 32
the hopeful chorus that the tide is turning seems ardent and is an arguably popular, indeed, poignant, outcome (whether or not credibly constitutionally driven). Perhaps, in the wake of today's blurry notion of evolving understanding, the result is ordained. Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient 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? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.19
19 In the words of the Fourth Circuit: "Civil marriage is one of the cornerstones of our way of life. It allows individuals to
28

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 29 of 32

Plaintiffs' counsel was unable to answer such kinds of
questions; the only hesitant response given was that such unions
would result in "significant societal harms" that the states could
indeed regulate. But not same-gender unions. This Court is
powerless to be indifferent to the unknown and possibly imprudent
consequences of such a decision. A decision for which there
remains the arena of democratic debate. Free and open and probing
debate. Indeed, fractious debate. The Court remains drawn to the
forceful and prophetic circumspection expressed by Justice Powell,
and turns the spotlight again not only on his dissent in Furman v.
Georgia, 408 U.S. 238, 414 (1972), but also to Judge Kelly in his
dissent in the recent Tenth Circuit decision in Kitchen v. Herber,t
No. 13-4178, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014).
Their words lead this Court today and ought not be slighted:
[W]here, as here, the language of the applicable provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great....But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic.
Furman, 408 U.S. at 431, 433.

celebrate and publicly declare their intentions to form lifelong

partnerships, which provide unparalleled intimacy, companionship,

emotional support, and s ecurity." Bostic , 2014 U.S. App. LEXIS

14298, at *67. But

see id. at *86-*87 (Niemeyer, J.,

dissenting)("To now define the previously recognized fundamental

right to 'marriage' as a concept t hat includes the new notion of

'same-sex marriage' amounts to a dictionary jurisprudence, which

defines terms as convenient to attain an end.").

29

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[O]n this issue we should defer. To be sure, the constant refrain in these cases has been that the States' justifications are not advanced by excluding same-gender couples from marriage. But that is a matter of opinion; any "improvement" on the classification should be left to the state political process.
Kitchen, 2014 U.S. App. LEXIS 11935, at *146. And, of we judges as
philosopher-kings:
Though the Plaintiffs would weigh the interests of the State differently and discount the procreation, childrearing, and caution rationales, that prerogative belongs to the electorate and their representatives....We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.
Id. at *149-*150. Heeding those cautions, it is not for this Court
to resolve the wisdom of same-sex marriage2.0 The nation is witness
20 Windsor offers no obstacle to this point, which the Supreme Court even more recently reaffirmed in Schuette v. Coalition to Defend Affirmative Action , 134 S. Ct. 1623 (2014). In Schuette , the Court held that a Michigan constitutional amendment preventing the use of race-based preferences as part of the admissions process for state universities did not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Kennedy, the author of Windsor, writing for the Court, emphasized that the question before the Court was "not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit consideration of racial preferences in governmental decisions." Id. at 1630. In other words, the question was whether "the courts [may or] may not disempower the voters from choosing which path to follow." Id.at 1635. The Supreme Court held not. It reasoned: "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters." Id. at 1638. This case shares striking similarities with Schuette. Just as in Schuette, this case involves "[d]eliberative debate on sensitive issues [that] all too often may shade into rancor." Id. And so just like the Supreme Court very recently held, this Court agrees "that does not justify removing certain court-determined issues from the voters' reach.
30

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 31 of 32
to a strong conversation about what is marriage. The central question that must first be asked, is what is the fairest forum for the answer? A new right may or may not be affirmed by the democratic process. "Perhaps someday same-gender marriage will become part of this country's history and tradition, but that is not a choice this court should make." Id. at *133. As Judge Niemeyer bluntly wrote in his insightful dissent in Bostic:
Because there is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it, just as there are rational reasons for recognizing it, I conclude that we, the Third Branch, must allow the States to enact legislation on the subject in accordance with their political processes. The U.S. Constitution does not, in my judgment, restrict the States' policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism. 2014 U.S. App. LEXIS 1 4298, at *109. Federalism is not extinct. Federalism remains a vibrant and essential component of our nation's constitutional structure. See Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting)("[B]ut a State's definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities." (internal quotation marks and citations omitted)). For all of these reasons, the Court finds that Louisiana's
Democracy does not presume that some subjects are either too divisive or too profound for public debate." Id.
31

Case 2:13-cv-05090-MLCF-ALC Document 131 Filed 09/03/14 Page 32 of 32
definition of marriage as between one man and one woman and the limitation on recognition of same-sex marriages permitted by law in other states found in Article XII, Section 15 of the Louisiana Constitution and article 3520(B) of the Louisiana Civil Code do not infringe the guarantees of the Equal Protection and Due Process Clauses of the United States Constitution. The record reveals no material dispute: the defendants have shown that Louisiana's decision to neither permit nor recognize same-sex marriage, formed in the arena of the democratic process, is supported by a rational basis.21 The Court further finds that plaintiffs have failed to establish a genuine dispute regarding a First Amendment violation on this record. Accordingly, plaintiffs' motion for summary judgment is DENIED and defendants' motion for summary judgment is GRANTED.
New Orleans, Louisiana, September 3, 2014.
______________________________ MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
21 The public contradictions and heated disputes among the community of social scientists, clergy, politicians, and thinkers about what is marriage confirms and clearly sends the message that the state has a legitimate interest, a rational basis, in addressing the meaning of marriage.
32

 
 Case 2:14-cv-00327-MLCF-MBN Document 16 Filed 03/18/14 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

FORUM FOR EQUALITY LOUISIANA, INC. ET AL.
VERSUS
TIM BARFIELD ET AL.

*

CIVIL ACTION

*

NO. 14-0327

*

SECTION F (4)

It having come to the Court's attention that Civil Action No. 13-5090, Section F(5) is related to the above case,
IT IS ORDERED that the above matters are consolidated. Pursuant to the Court's directive, all pleadings hereafter filed in this consolidated proceeding shall bear the caption of the lead consolidated case together with the docket number of all cases within the consolidation to which the document applies or the notation "ALL CASES" if it applies to all cases. The clerk of court is directed to establish a master file and a master docket sheet for the consolidated group of cases. All entries shall be made on the master docket sheet only, with a notation listing the cases to which the document applies, except that orders and documents terminating a party or disposing of a case will also be entered on the individual docket sheet. All documents shall be filed in the master file only, except that orders and documents terminating a party or disposing of a case will also be filed in the record of the individual case.

Case 2:14-cv-00327-MLCF-MBN Document 16 Filed 03/18/14 Page 2 of 2
In the event that a case is separated from the consolidated group it shall be the responsibility of counsel to jointly designate the documents necessary to the continued litigation of the case to file such designation and copies of the documents.
IT IS FURTHER ORDERED that the above captioned cause be transferred to Division (5) of this Court.
New Orleans, Louisiana, this 18th day of March, 2014. JUDGE
fI MAR 18 2014
V TRANSfERRfD TO
MAG.S 2

 
 Case 2:14-cv-00327-MLCF-MBN Document 17 Filed 09/03/14 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

FORUM FOR EQUALITY LOUISIANA, INC, ET AL.
VERSUS
TIM BARFIELD, ET AL.

CIVIL ACTION
NO. 14-0327 c/w 13-5090 14-0097
SECTION “F”(5)

J U D G M E N T For the written reasons of the Court on file herein, accordingly; IT IS ORDERED, ADJUDGED AND DECREED that the plaintiffs' motion for summary judgment is DENIED and defendants' motion for summary judgment is GRANTED.
New Orleans, Louisiana, this 3rd day of September, 2014.

MARTIN L.C. FELDMAN UNITED STATES DISTRICT JUDGE

 
 Case: 14-31037 Document: 00513102306 Page: 1 Date Filed: 07/01/2015 Case 2:14-cv-00327-MLCF-MBN Document 20-1 Filed 07/02/15 Page 1 of 5

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14-31037
JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD; COURTNEY BLANCHARD,

United States Court of Appeals Fifth Circuit
FILED
July 1, 2015
Lyle W. Cayce Clerk

Plaintiffs–Appellants,

versus

JAMES D. CALDWELL, in His Official Capacity as the Louisiana Attorney General, Also Known as Buddy Caldwell,

Defendant–Appellee.

* * * * *

JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD; COURTNEY BLANCHARD; ROBERT WELLES; GARTH BEAUREGARD,

Plaintiffs–Appellants,

versus

DEVIN GEORGE, in His Official Capacity as the State Registrar and Center Director at Louisiana Department of Health and Hospitals;
TIM BARFIELD, in His Official Capacity as the Louisiana Secretary of Revenue;
KATHY KLIEBERT, in Her Official Capacity as the Louisiana Secretary of Health and Hospitals,

Defendants–Appellees.

* * * * *

Case: 14-31037 Document: 00513102306 Page: 2 Date Filed: 07/01/2015 Case 2:14-cv-00327-MLCF-MBN Document 20-1 Filed 07/02/15 Page 2 of 5
No. 14-31037
FORUM FOR EQUALITY LOUISIANA, INCORPORATED; JACQUELINE M. BRETTNER; M. LAUREN BRETTNER; NICHOLAS J. VAN SICKELS; ANDREW S. BOND; HENRY LAMBERT; R. CAREY BOND; L. HAVARD SCOTT, III; SERGIO MARCH PRIETO,
Plaintiffs–Appellants, versus TIM BARFIELD, in His Official Capacity as
Secretary of the Louisiana Department of Revenue; DEVIN GEORGE, in His Official Capacity as Louisiana State Registrar,
Defendants-Appellees.
Appeals from the United States District Court for the Eastern District of Louisiana
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges. JERRY E. SMITH, Circuit Judge:
The plaintiffs are seven same-sex couples and an organization whose membership includes same-sex couples and their families. The couples seek to marry in Louisiana or to have their marriage in another state recognized in Louisiana. They sued the state defendants for declaratory and injunctive relief, asking the district court to declare unconstitutional article XII, § 15 of the Louisiana Constitution, article 3520(B) of the Louisiana Civil Code, and any other Louisiana law that prohibits same-sex couples from marrying in Louisiana or having their marriages recognized. The various plaintiffs claimed
2

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No. 14-31037
violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Full Faith and Credit Clause, and 42 U.S.C. § 1983. The actions were consolidated.
On September 3, 2014, the district court, without the benefit of subsequent controlling Supreme Court precedent, granted defendants’ motion for summary judgment and denied plaintiffs’ motion for summary judgment. The plaintiffs appealed. After full briefing, including participation by numerous amici curiae, this court heard expanded oral argument on January 9, 2015.
While this appeal was under submission, the Supreme Court decided Obergefell v. Hodges, No. 14-556, 2015 U.S. LEXIS 4250 (U.S. June 26, 2015). In summary, the Court declared that
the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and now is overruled, and the State laws challenged by petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. at *41–42. “It follows that the Court must also hold—and it now does hold— that there is no lawful basis for a State to refuse to recognize a lawful samesex marriage performed in another State on the ground of its same-sex character.” Id. at *50.
Having addressed fundamental rights under the Fourteenth Amendment, the Court, importantly, invoked the First Amendment, as well:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations
3

Case: 14-31037 Document: 00513102306 Page: 4 Date Filed: 07/01/2015 Case 2:14-cv-00327-MLCF-MBN Document 20-1 Filed 07/02/15 Page 4 of 5
No. 14-31037
and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. Id. at *48–49.
Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit1 and should not be taken lightly by actors within the jurisdiction of this court. We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.
This court sought and promptly received letter advisories from plaintiffs and the state, asking their respective positions on the proper disposition in light of Obergefell. They are agreed that the judgment should be reversed and remanded for entry of judgment in favor of plaintiffs.
Because this court agrees that that is the required result, the judgment appealed from is REVERSED, and this matter is REMANDED for entry of judgment in favor of the plaintiffs. The district court must act expeditiously on remand, especially in view of the declining health of plaintiff Robert Welles.
1 If it were suggested that any part of the quoted passages is obiter dictum, we need only recall that although “[w]e are not bound by dicta, even of our own court [,] [d]icta of the Supreme Court are, of course, another matter.” United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980). “[W]e give serious consideration to this recent and detailed discussion of the law by a majority of the Supreme Court.” Geralds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013) (Reavley, J.).
4

Case: 14-31037 Document: 00513102306 Page: 5 Date Filed: 07/01/2015 Case 2:14-cv-00327-MLCF-MBN Document 20-1 Filed 07/02/15 Page 5 of 5
No. 14-31037 The court should enter final judgment on the merits (exclusive of any collateral matters such as costs and attorney fees) by July 17, 2015, and earlier if reasonably possible.2
The mandate shall issue forthwith.
2 Any pending motions are denied as moot.
5

 
 Case: 2:14-cv-327 As of: 01/09/2019 10:51 AM CST 1 of 7
CLOSED,CONSOL
U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:14−cv−00327−MLCF−MBN

Forum for Equality Louisiana, Inc. et al v. Barfield et al Assigned to: Judge Martin L.C. Feldman Referred to: Magistrate Judge Michael North Lead case: 2:13−cv−05090−MLCF−MBN Member case: (View Member Case) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/12/2014 Date Terminated: 09/03/2014 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Forum for Equality Louisiana, Inc.

represented by James Dalton Courson Stone, Pigman, Walther, Wittmann, LLC (New Orleans) 909 Poydras Street Suite 3150 New Orleans, LA 70112−4042 (504) 593−0812 Email: dcourson@stonepigman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar Stone, Pigman, Walther, Wittmann, LLC (New Orleans) 546 Carondelet St. New Orleans, LA 70130−3588 504−593−0862 Email: btigchelaar@stonepigman.com ATTORNEY TO BE NOTICED

John M. Landis Stone, Pigman, Walther, Wittmann, LLC (New Orleans) 546 Carondelet St. New Orleans, LA 70130−3588 (504) 581−3200 Email: jlandis@stonepigman.com ATTORNEY TO BE NOTICED

Lesli D. Harris Kelly Hart & Pitre LLP 400 Poydras Street Suite 1812 New Orleans, LA 70130 504−522−1812 Email: lesli.harris@kellyhart.com ATTORNEY TO BE NOTICED

Maurine Wall Laborde Wall, Bullington & Cook, LLC 540 Elmwood Park Blvd. Harahan, LA 70123 504−736−0347 Fax: 504−596−0982 Email: mlaborde@wallbulling.com ATTORNEY TO BE NOTICED

Plaintiff Jacqueline M. Brettner

represented by James Dalton Courson (See above for address)

Case: 2:14-cv-327 As of: 01/09/2019 10:51 AM CST 2 of 7

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff M. Lauren Brettner

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nicholas J. Van Sickels

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

Case: 2:14-cv-327 As of: 01/09/2019 10:51 AM CST 3 of 7

Plaintiff Andrew S. Bond

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Henry Lambert

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff R. Carey Bond

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde

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(See above for address) ATTORNEY TO BE NOTICED

Plaintiff L Havard Scott, III

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sergio March Prieto

represented by James Dalton Courson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brooke C. Tigchelaar (See above for address) ATTORNEY TO BE NOTICED

John M. Landis (See above for address) ATTORNEY TO BE NOTICED

Lesli D. Harris (See above for address) ATTORNEY TO BE NOTICED

Maurine Wall Laborde (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Tim Barfield in his official capacity as Secretary of the Louisiana Department of Revenue

represented by Stuart Kyle Duncan Louisiana Department of Justice (94005) P. O. Box 94005 Baton Rouge, LA 70804−9005 202−714−9492 Email: kduncan@schaerr−duncan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Glen Sanders Louisiana Department of Justice Litigation Division

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P.O. Box 94005 1885 North 3rd St. Baton Rouge, LA 70804−9005 225−326−6300 Fax: 225−326−6192 Email: sandersd@ag.louisiana.gov ATTORNEY TO BE NOTICED

J. Michael Johnson Law Offices of Mike Johnson, LLC 2250 Hospital Drive Suite 248 Bossier City, LA 71111 318−658−9456 Fax: 318−658−9605 Email: mjohnsonlegal@gmail.com ATTORNEY TO BE NOTICED

Phyllis Esther Glazer Meeks & Associates, LLC 3401 West Esplanade Ave. Suite 3 Metairie, LA 70002 504−355−0020 Fax: 504−355−0024 Email: pglazer@meekslawllc.com ATTORNEY TO BE NOTICED

Defendant
Devin George in his official capacity as Louisiana State Registrar

represented by Stuart Kyle Duncan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Glen Sanders (See above for address) ATTORNEY TO BE NOTICED

J. Michael Johnson (See above for address) ATTORNEY TO BE NOTICED

Phyllis Esther Glazer (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/12/2014
02/12/2014 02/12/2014 02/15/2014

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 053L−4341180) filed by Henry Lambert, M. Lauren Brettner, R. Carey Bond, Sergio March Prieto, Jacqueline M. Brettner, L Havard Scott, III, Nicholas J. Van Sickels, Forum for Equality Louisiana, Inc., Andrew S. Bond. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons) (Entered: 02/12/2014)
2 Initial Case Assignment to Judge Martin L.C. Feldman and Magistrate Judge Karen Wells Roby. (mmv, ) (Entered: 02/12/2014)
3 Summons Issued as to Tim Barfield, Devin George. (Attachments: # 1 Summons)(cml, ) (Entered: 02/12/2014)
4 SUMMONS Returned Executed; Tim Barfield served on 2/13/2014, answer due 3/6/2014. (Courson, James) (Entered: 02/15/2014)

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02/15/2014 02/17/2014 02/24/2014
02/26/2014
02/26/2014 02/27/2014 02/27/2014 03/02/2014 03/03/2014
03/05/2014 03/14/2014 03/18/2014 09/03/2014
09/04/2014 07/02/2015

5 SUMMONS Returned Executed; Devin George served on 2/13/2014, answer due 3/6/2014. (Courson, James) (Entered: 02/15/2014)
6 Statement of Corporate Disclosure by Forum for Equality Louisiana, Inc. (Courson, James) (Entered: 02/17/2014)
7 EXPARTE/CONSENT MOTION to Appear as Counsel of Record by Tim Barfield, Devin George. (Attachments: # 1 Proposed Order Proposed order on motion to appear as counsel for Defendants)Attorney Stuart Kyle Duncan added to party Tim Barfield(pty:dft), Attorney Stuart Kyle Duncan added to party Devin George(pty:dft).(Duncan, Stuart) (Entered: 02/24/2014)
8 EXPARTE/CONSENT Joint MOTION for Entry of a Briefing Schedule for Cross−Motions for Summary Judgment, Joint MOTION for Leave to File Excess Pages for Memoranda in Support of Motions for Summary Judgment, Consent MOTION for Extension of Time to Answer re 1 Complaint, by Defendants and by Andrew S. Bond, R. Carey Bond, Jacqueline M. Brettner, M. Lauren Brettner, Forum for Equality Louisiana, Inc., Henry Lambert, Sergio March Prieto, L Havard Scott, III, Nicholas J. Van Sickels. (Attachments: # 1 Proposed Order)(Courson, James) (Entered: 02/26/2014)
9 ORDER granting 7 Motion to Appear. Signed by Judge Martin L.C. Feldman on 2/26/2014. (caa, ) (Entered: 02/26/2014)
10 ORDER: Status Conference set for 3/14/2014 10:30 AM before Judge Martin L.C. Feldman. Signed by Judge Martin L.C. Feldman.(caa, ) (Entered: 02/27/2014)
11 ORDER denying 8 Motion for Briefing Schedule, Motion for Leave to File Excess Pages & Motion for Extension of Time to Answer. Signed by Judge Martin L.C. Feldman on 2/27/2014. (caa, ) (Entered: 02/27/2014)
12 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 1 Complaint, by Tim Barfield, Devin George. (Attachments: # 1 Proposed Order)(Duncan, Stuart) Modified docket text on 3/3/2014 (jtd). (Entered: 03/02/2014)
13 Correction of Docket Entry by Clerk re 12 MOTION for Extension of Time to Answer re 1 Complaint. Attachment has duplicate description (i.e. Proposed Order Proposed Order on Motion for Extension of Time to Answer). For attachment, select either a category OR enter a description, but not both since this results in duplicate docket text. Clerk removed duplicate text. (jtd) (Entered: 03/03/2014)
14 ORDER granting 12 Motion for Extension of Time to Answer re 1 Complaint, as to Tim Barfield answer due 3/27/2014; Devin George answer due 3/27/2014. Signed by Judge Martin L.C. Feldman on 3/5/2014. (mmm) (Entered: 03/05/2014)
15 Minute Entry for proceedings held before Judge Martin L.C. Feldman: Status Conference held on 3/14/2014. (Court Reporter Toni Tusa.) (caa) (Entered: 03/14/2014)
16 ORDER that 14−0327 is consolidated with 13−5090. FURTHER ORDER that Case is transferred to Magistrate Judge Michael North for all further proceedings. Magistrate Judge Karen Wells Roby no longer assigned to case. Signed by Judge Martin L.C. Feldman on 3/18/2014.(caa) (Entered: 03/18/2014)
17 JUDGMENT entered in favor of Devin George & Tim Barfield against Forum for Equality Louisiana, Inc., Andrew S. Bond, Henry Lambert, Jacqueline M. Brettner, L Havard Scott, III, M. Lauren Brettner, Nicholas J. Van Sickels, R. Carey Bond & Sergio March Prieto. Signed by Judge Martin L.C. Feldman on 9/3/2014.(caa) (Entered: 09/03/2014)
18 NOTICE OF APPEAL by Andrew S. Bond, R. Carey Bond, Jacqueline M. Brettner, M. Lauren Brettner, Forum for Equality Louisiana, Inc., Henry Lambert, Sergio March Prieto, L Havard Scott, III, Nicholas J. Van Sickels as to 17 Judgment. (cml) (Entered: 09/05/2014)
19 JUDGMENT entered in favor of Forum for Equality Louisiana, Inc., Andrew S. Bond, Henry Lambert, Jacqueline M. Brettner, L Havard Scott, III, M. Lauren Brettner, Nicholas J. Van Sickels, R. Carey Bond and Sergio March Prieto and against Devin George and Tim Barfield, as stated herein. FURTHER ORDERED that this Court's

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07/02/2015

Order and Reasons and the accompanying Judgment dated 9/3/2014, are hereby recalled and rescinded. ORDERED that Plaintiffs in each of these consolidated cases are awarded their costs, expenses, and reasonable attorneys' fees according to 42 U.S.C. 1988 and any other applicable laws. The question of quantum is referred to the magistrate judge. Signed by Judge Martin L.C. Feldman on 7/2/2015.(Reference: ALL CASES) (NEF: MAG−5)(caa) (Entered: 07/02/2015)
20 USCA JUDGMENT issued as mandate on 7/1/2015. It is ORDERED and ADJUDGED that the judgment of the District Court is REVERESED, and the cause is REMANDED to the District Court for further proceedings in accordance with the opinion of this Court. FURTHER ORDERED that appellees pay to appellants the costs on appeal to be taxed by the Clerk of this Court. USCA judge name: HIGGINBOTHAM, SMITH, and GRAVES. (Attachments: # 1 Opinion, # 2 Transmittal Letter)(cml) (Entered: 07/02/2015)