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Robicheaux et al. – The Little Equality Case That Could

by Derek Penton on February 14, 2014

in Civil Rights,Derek Penton,Marriage

It seems that the fires of Equality are spreading, and like the new SHERMAN of the south, they are burning away the bigoted traditions of old, allowing, once again, FREEDOM to shine through.  It has been an exciting week for LGBT rights across the U.S. particularly in the two southern states of Virginia and Kentucky where in the last two days both states’ bans on marriage equality have been ruled unconstitutional. And if you turn your attention further south you will see more fires raging.

As you well know, we started the marriage equality fight seven months ago on July 16, 2013 filing in Federal Court a lawsuit Robicheaux et al. – challenging Louisiana’s constitutional ban on gay marriage. In my last piece I reported that On Jan. 27, Judge Feldman denied our motion for our two cases (one on appeal and one newly filed in federal court) to be unconsolidated with a notation at the bottom of the order reading, “Both cases are obviously related.”   To read more on the history of our case please refer to my last article.

After much consultation with our lawyer and other experts, we decided to drop the appeal (dealing with sovereign immunity, a lesser issue we can fight another time) in an effort to release the stay of the new case allowing it proceed forward.   On February 7th Judge Feldman granted our motion to add Robert Welles and his Partner Garth Beauregard, removing the brakes that he previously put on the case. Louisiana marriage equality was back in full force with just one case moving forward in federal court.

That was until February 12th.

Just this past Wednesday a local gay rights organization called the Forum for Equality, along with four couples, filed another federal lawsuit challenging Louisiana’s ban on same-sex marriage.  The local New Orleans based Forum and their plaintiffs are challenging the ban citing “equal protection and free speech in the U.S. Constitution”.

According to their website:

The lawsuit charges that Louisiana’s refusal to recognize same-sex marriages violates the US constitutional guarantees of equal protection and due process. The lawsuit also asserts that state officials infringe the couples’ First Amendment rights by requiring them to claim that they are unmarried on state tax returns.”

“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 disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages’ that were lawfully celebrated in other states,” according to the lawsuit, which frequently cites the US Supreme Court’s 2013 decision overturning a portion of the federal Defense of Marriage Act. (United States v. Windsor, 570 U.S. 12). You can read the complaint here.

Comparing and contrasting our own longstanding suit and what was filed by the forum,  they appear similar in that they both seek to have couples who wed out-of-state recognized here in Louisiana.  One difference that I have found, is that in our latest motion we have added Garth and Robert who were not wed out-of-state, but applied for an in-state marriage license, which was denied.  This addition takes our case one step further by asking not only, for out-of-state marriages to be recognized, but also to allow for same-sex couples to be legally wed here in Louisiana, mirroring most other cases that are currently filed across the United States.

What does this mean in the long run for the two cases? We are not entirely sure.  At my best guess, given Feldman’s history of consolidating our appeal with our current case because of the “obvious relation” of subject matter, I would guess he may very well do the same with the two current cases at hand.   As for us and “our little equality case that could”, we are back on track, adding much-needed wind to this equality fire that is sweeping through the south.  Just this week in our case, one of the defendants, Secretary of Revenue Tim Barfield, has already waived service and now has 60 days to answer, giving him until April 14 to do so.

This track has been a long one and we have been derailed at times, but we will keep pushing forward and fighting for what is TRUE and JUST!

We welcome the Forum and their plaintiffs to our ongoing battle for marriage equality here in Louisiana, as this matter is of the utmost importance to all LGBT families across the state.

As these matters develop you can count that I will keep you up to date on the progress of our case.   You can also follow our case by visiting our website or going to our Facebook page.  Our amended complaint can be found here.


derek penton Derek Penton, 35, is a native of Mississippi and a longtime resident of New Orleans.  He holds degrees in computer information systems and paramedicine.  After more than five years together, Penton and his husband, Jonathan Robicheaux, were legally married in Iowa on Sept. 23, 2012.



Photos used with permission

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