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La. Trial Court Strikes State's Same-Sex Marriage Ban

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By Mark Wilson, Esq. on September 29, 2014 2:33 PM

Just when you thought same-sex marriage in the United States couldn't get any more complicated, a state judge in Louisiana has ruled that the state's ban on same-sex marriage is unconstitutional.

No biggie -- that's happening all over the place -- but the ruling comes less than a month after a federal district court judge upheld the ban as constitutional. The newest ruling comes from Louisiana's 15th Judicial District Court; Judicial District Courts are the state's trial courts.

Full Faith and Credit

At the outset, the case dealt with whether Louisiana -- which prohibits same-sex marriage both by constitutional amendment and by three separate statutes (just to be safe, I suppose) -- was obligated to recognize a same-sex marriage performed in California. The purpose of recognizing the marriage was to allow the non-biological parent of a child to adopt the child, which Louisiana didn't permit because the couple wasn't, and couldn't be, married in Louisiana.

Primarily citing Windsor, the court found that the Full Faith and Credit Clause compelled Louisiana to recognize valid out-of-state marriages. In much the same way that the Seventh Circuit did in its own same-sex marriage case, the court here brushed aside the troublesome Baker v. Nelson, noting that in the years since Baker was decided in 1972, "doctrinal developments" -- meaning Lawrence v. Texas -- rendered Baker irrelevant.

And, like most other courts, this one didn't buy the state's argument that only opposite-sex marriage fostered the state's interest in child-rearing (which, after dozens of lawsuits, is about the only argument states have left).

Just the Usual Arguments

Nor was the court persuaded by Louisiana's insistence that prohibition of same-sex marriage constituted a "widespread social consensus" that should be changed by statute and not by court decree: "The State has given no legitimate state interest in waiting to ensure that fundamental social change occurs through widespread social consensus." This "let's wait and see" argument -- also known as "kicking the can down the road" -- is the one that Justice Alito adopted in his Windsor dissent. It's one that opponents of same-sex marriage have tried, but failed, because they can show no rational reason why waiting is a legitimate government interest, or even when a "social consensus" is reached.

The court here, though, went even further still, invoking Plessy v. Ferguson and Brown v. Board of Education for the proposition that gays and lesbians can no longer "be treated differently ... yet be considered to be equal to the rest of Americans." Tough stuff. The court was also aware that gay and lesbian civil rights battles are still fresh in history: "Lest we forget, there was a time in America's history when gays and lesbians were not even permitted to associate in public. ... We are past that now, but when it comes to marriage between persons of the same sex, this nation is moving towards acceptance that years ago would never have been contemplated."

The state has announced that it will appeal the decision to the Louisiana Supreme Court. The Fifth Circuit Court of Appeals announced last week that the same panel of judges would hear separately same-sex marriage challenges from federal courts in Texas and Louisiana, making it the sixth federal circuit court -- following the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits -- to hear state same-sex marriage challenges.

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