Pressing On: The State of LGBT Marriage in Louisiana

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In July 2013, my husband Jonathan Robicheaux filed a complaint in federal court against the Louisiana Attorney General, James Caldwell, to recognize our marriage in Iowa in 2012.  In November 2013, I, along with Courtney and Nadine Blanchard, who were also legally married in another state, were added to the lawsuit.  In response, the Attorney General filed a motion to dismiss, invoking “sovereign immunity” under the 11th Amendment to the Constitution, which states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Moving forward, letting the process roll on as it must, we received a ruling; on Nov. 26, 2013, Judge Martin Feldman dismissed the AG as a defendant in our suit.  Shortly thereafter, we filed to amend the suit to name the “correct” defendants.  We also filed a motion to reconsider.  Judge Feldman denied both motions, forcing us to take other routes.

In January 2014, we appealed the dismissal on the basis that the concept of sovereign immunity applies only to monetary judgments – not to civil rights violations.  In addition, we filed a new lawsuit on Jan. 14 against the State Registrar of Vital Records, the Secretary of Health and Hospitals and the Secretary of Revenue (as individual actors rather than representatives of the State). This action cost another filing fee which would have not been necessary had we had the opportunity to amend our previous suit. On Jan. 17, the new lawsuit was transferred back to the original judge and on the 21, the lawsuits were consolidated.

On Jan. 22, 2014, Robert Welles and his partner, Garth Beauregard, applied for a marriage license from the Orleans Parish Marriage License office and was summarily refused.  That afternoon, Rob and Garth were added to the lawsuit as well, making this case mirror many other cases in the fight for equality.

With the addition of Robert and Garth, we will further our efforts in asking Louisiana to allow individuals to marry here in the state.  As of Jan. 23, Judge Feldman denied the motion to add the new plaintiffs, staying any forward movement in the most recent filed case.  His reasoning, from what we understand from his law clerk, is that he feels he no longer has authority to grant any motions because the lead case is on appeal. That being said, we are now moving to have the cases unconsolidated, letting them both travel in their respected directions: one case in appellate court and the other, adding the two new plaintiffs, in its original location.

The Ninth Circuit Court of Appeal very recently held the LGBT community to a heightened scrutiny status as a protected class and held that a potential juror could not be struck because of his or her status as a member of the constitutional scrutiny; rather, state must show that it has a compelling reason to discriminate.  Obviously, as it applies to marriage discrimination, Louisiana has neither a legitimate nor a compelling reason to survive such scrutiny.

As of the morning of Jan. 24, we received notice that the appeal was assigned No. 14-30058 Jonathan Robicheaux, et al v. James Caldwell, USDC No. 213-CV-5090, and the District Court has until Feb. 10 to provide the record to the Court of Appeal. Once the record is received, then we will be provided a briefing notice with our deadlines.

On Jan. 27, Judge Feldman denied our motion for the cases to be unconsolidated with a notation at the bottom of the order reading, “Both cases are obviously related.”  While we were somewhat disappointed with this judge’s denial, this is nothing but a stumbling block and we will continue our fight towards victory.

As Napoleon Hill once said, “Victory is always possible for the person who refuses to stop fighting.” We know this battle will be long and grueling, but we will fight on – not just for us, but for EVERY ONE OF US. We are rallying all the support we can around us and are continuing to push forward. We appreciate all that everyone has given us thus far and if you’d like to get involved, please do not hesitate to contact us. You can keep up with our case and contact us, by liking on facebook and checking out our website.

 

 

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.