March 3, 2015
By Mallory Chatelain, Senior Associate
Although the legalization of same-sex marriage has been the subject of widespread debate across the United States for decades,[1] several states’ positions on the issue have changed drastically in recent years. For example, by June of 2013, only 13 states had legalized same-sex marriage over a nine-year span and were clearly within the minority compared to the rest of the nation that maintained express constitutional or state-law bans on same-sex marriage.[2]
Later that month, the Supreme Court of the United States issued its landmark decision in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act (DOMA), which defined marriage as “between one man and one woman” for federal law purposes, was unconstitutional.[3] However, the Supreme Court’s holding in Windsor did not require states to either legalize same-sex marriage or recognize same-sex marriages that were legally contracted in other states.[4]
Nevertheless, in the year-and-a-half since Windsor, the legal status of same-sex marriage in the United States has remained in flux. An additional 24 states have legalized same-sex marriage, comprising a total of 37 states and a majority of the nation, and courts in five more states have declared same-sex marriage bans unconstitutional, though these decisions have been stayed pending higher court approval.[5] In light of the Supreme Court’s recent announcement that it will hear oral arguments on the same-sex marriage issue in the 2015 term, states that remain unresolved on the constitutionality of same-sex marriage, including Louisiana, will finally receive an answer to this decades-old debate.[6]
However, even if the Supreme Court holds in favor of marriage equality, a number of questions remain: Will states with same-sex marriage bans be forced to legalize same-sex marriage, or will they be allowed to continue to prohibit same-sex marriages within their borders as long as they recognize same-sex marriages that were legally performed in other states? How quickly will those states be required to repeal any constitutional or statutory refusal to recognize same-sex marriages and instead provide all of the benefits of marriage to same-sex couples? And, in light of these concerns, should states that have continued to uphold express constitutional and state law bans on same-sex marriage, such as Louisiana, be proactive in amending or repealing these laws entirely?
In Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana, I discussed the implications of shifts in federal agency policy on same-sex marriage after the Supreme Court’s decision in Windsor, as well as the resulting conflicts created between federal and state law in those states that do not recognize same-sex marriage, including Louisiana.[7] In my Comment, I outlined several conflicts between federal agency policy and Louisiana law in areas involving tax, Social Security, and military benefits, all of which created significant problems for legally married same-sex couples living in Louisiana.[8]
For example, after the Windsor decision, the Internal Revenue Service issued guidance requiring married same-sex couples to file as married for purposes of their federal tax returns,[9] and the Louisiana Department of Revenue responded by reaffirming its position that married same-sex couples cannot file as married for purposes of their state tax returns because Louisiana does not recognize same-sex marriage.[10] However, Louisiana also has a requirement that its taxpayers use the same filing status on their state and federal tax returns, thus creating a significant conflict for its same-sex couples.[11] To remedy this problem, the Louisiana Department of Revenue instructed its same-sex couples to first file as married on their federal tax return and then to file as single on a second “dummy” federal tax return in order to get the necessary information for their state tax return.[12] However, this proposed solution undermines the very policy considerations that prompted Louisiana to link the federal and state tax return systems to begin with: the convenience of the state’s taxpayers.[13]
A similar example of the post-Windsor conflicts between federal agency policy and Louisiana law can be seen in the context of military benefits. After the Supreme Court’s decision, the Department of Defense directed that all military departments provide married military benefits to married same-sex couples.[14] However, because the Louisiana National Guard is prohibited from recognizing same-sex marriages within the state, it initially refused to process same-sex couples’ requests for married military benefits before subsequently developing a technical employment status workaround.[15] Rather than simply allowing all of its employees to comply with the federal directive, Louisiana National Guard personnel are required to be temporarily federalized.[16] This way, when Louisiana National Guard employees violate Louisiana law by recognizing same-sex marriage through the processing of married military benefit requests, they will be doing so as federal, rather than state, employees. However, this temporary federalization requirement creates a number of extra hoops for these same-sex couples to jump through, making access to married military benefits more difficult and inconvenient.[17]
In response to these conflicts between federal agency policy and Louisiana law, I suggested that the most comprehensive solution was for the Louisiana Legislature to legalize, or at least recognize, same-sex marriages within the state.[18] However, I also provided some alternative solutions[19] in light of the state’s longstanding prohibition of same-sex marriage in Article XII, Section 15, of the Louisiana Constitution, which states that “[m]arriage in the state of Louisiana shall consist only of the union of one man and one woman,”[20] as well as in Louisiana Civil Code article 3520, which states that “[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.”[21]
Since publication of that Comment, an additional 18 states have legalized same-sex marriage,[22] and the Supreme Court announced that it will rule on questions of whether states are constitutionally required to either legalize same-sex marriage entirely or at least recognize same-sex marriages validly performed in other states.[23] Additionally, the Louisiana Supreme Court has been urged to issue its own decision concerning whether the state’s current constitutional and statutory bans on same-sex marriage are unconstitutional, notwithstanding the United States Supreme Court’s impending decision on the subject.[24] In light of these recent developments, as well as the continued post-Windsor problems plaguing the state’s same-sex couples, Louisiana should consider circumventing the possibility that its constitutional and statutory bans on same-sex marriage could be declared unconstitutional by taking preventative action to either amend, if not repeal entirely, Article XII, Section 15, of its Constitution and article 3520 of its Civil Code.
The Supreme Court could hold that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex,[25] under either due process or equal protection theories that would require same-sex couples to be afforded the same rights and benefits of marriage as their opposite-sex counterparts. Should this occur, Louisiana will likely be forced to repeal both its Constitution and Civil Code provisions as violations of the United States Constitution, since these laws explicitly prohibit both the performance and recognition of same-sex marriage within the state.[26]
However, the Supreme Court could also hold that the Fourteenth Amendment only requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.[27] Should this occur, Louisiana will likely still be forced to repeal Civil Code article 3520, which clearly states that a same-sex marriage “contracted in another state shall not be recognized in this state for any purpose.”[28] Notwithstanding, Louisiana may be able to retain its constitutional ban on same-sex marriage within the state by simply amending the provision to comply with the Supreme Court’s holding. Whereas Article XII, Section 15, of the Louisiana Constitution currently provides that “[m]arriage in the state of Louisiana shall consist only of the union of one man and one woman,”[29] the state could amend the provision to say that “[m]arriage performed in the state of Louisiana shall consist only of the union of one man and one woman” or “[m]arriage entered into in the state of Louisiana shall consist only of the union of one man and one woman.” In this way, and in conjunction with the repeal of Civil Code article 3520, Louisiana would still be able to prohibit same-sex marriage within the state while simultaneously complying with the constitutional requirements of the Fourteenth Amendment by no longer refusing to recognize same-sex marriages legally performed in other states.
Of course, the Supreme Court could potentially answer both the performance and the recognition questions set for hearing this term in the negative, allowing constitutional and state law bans on same-sex marriage in the remaining 14 states to remain untouched,[30] in which case Louisiana would not be forced to amend its Constitution or its Civil Code.
Nevertheless, given the recent, drastic change in the trend toward the legalization of same-sex marriage over the past year-and-a-half post-Windsor,[31] through the decisions of both state and federal court judges in declaring state law bans on same-sex marriage unconstitutional, it is unlikely that these bans will remain intact for long. Additionally, as a result of the conflicts created between post-Windsor changes in federal policy and Louisiana law, the state’s same-sex couples are being hassled and inconvenienced by being afforded marriage rights under federal law on the one hand and having to comply with state law prohibiting those rights on the other. In this way, perhaps Louisiana should consider taking preventative action by repealing Civil Code article 3520 to allow for the recognition of legally performed same-sex marriages within the State of Louisiana, and by amending Article XII, Section 15, of its Constitution to provide only that marriages performed or entered into within the state shall be between one man and one woman.
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[1] William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 Va. L. Rev. 1419, 1423 (1993).
[2] Same Sex Marriage Fast Facts, CNN (Jan. 30, 2015, 12:38 PM), http://www.cnn.com/2013/05/28/us/same-sex-marriage-fast-facts/index.html, archived at http://perma.cc/L44U-CMGL.
[3] United States v. Windsor, 133 S. Ct. 2675 (2013). See also 1 U.S.C. § 7 (2012); Pete Williams & Erin McClam, Supreme Court Strikes Down Defense of Marriage Act, NBC POLITICS (June 26, 2013, 7:04 AM), http://nbcpolitics.nbcnews.com/_news/2013/06/26/19151971-supreme-court-strikes-down-defense-of-marriage-act-paves-way-for-gay-marriage-to-resume-in-california, archived at http://perma.cc/HZQ3-VT72; SSA’s Post-Windsor Guidance May Provide Clues About IRS’s Position, TAX WARRIOR CHRONICLES (Aug. 21, 2013), http://www.taxwarriors.com/blog/bid/185502/SSA-s-Post-Windsor-Guidance-May-Provide-Clues-About-IRS-s-Position, archived at http://perma.cc/A74N-EGK3.
[4] Windsor, 133 S. Ct. at 2689–90.
[5] Same Sex Marriage Fast Facts, supra note 2. These states are Arkansas, in Wright v. State, No. 60CV-13-2662, 2014 WL 1908815 (Ark. Ct. App. May 9, 2014); Louisiana, in Costanza v. Caldwell, No. 2013-0052 D2 (La. 15th J.D.C. Sept. 22, 2014), available at http://www.scribd.com/doc/240611897/2013-0052D2-Louisiana-Ruling, archived at http://perma.cc/8ABF-7SVQ?type=live; Missouri, in Lawson v. Kelly, No. 14-0622-CV-W-ODS (W.D. Mo. Nov. 7. 2014), available at https://www.documentcloud.org/documents/1355036-mo-same-sex-marriage.html, archived at https://perma.cc/7YEH-RNTL; South Dakota, in Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES (D. S.D. Jan. 12, 2015), available at http://www.scribd.com/doc/252429277/4-14-cv-04081-50, archived at http://perma.cc/ZCF9-6M8Z; and Texas, in De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014).
[6] Order, Certiorari Granted at 1–2, 574 U.S. (Jan. 16, 2015), available at http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf, archived at http://perma.cc/TV5G-78HU?type=live. See also Tierney Sneed, Supreme Court to Take Up Same-Sex Marriage, U.S. News (Jan. 16, 2015, 4:59 PM), http://www.usnews.com/news/articles/2015/01/16/supreme-court-to-take-up-same-sex-marriage, archived at http://perma.cc/M9HC-NY6J; Mary Kay Mallonee, Supreme Court Agrees To Take On Same-Sex Marriage Issue, CNN (Jan. 16, 2015, 4:15 PM), http://www.cnn.com/2015/01/16/politics/court-gay-marriage/, archived at http://perma.cc/W7SK-PWHA.
[7] Mallory Chatelain, Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana, 75 La. L. Rev. 303 (2014).
[8] Id. at 319–27.
[9] Rev. Rul. 2013-17, 2013-38 I.R.B 201, available at http://www.irs.gov/pub/irs-irbs/irb13-38.pdf.
[10] Tim Barfield, La. Dep’t of Revenue, Revenue Information Bulletin No. 13-024 (Sept. 13, 2013), available at http://revenue.louisiana.gov/LawsPolicies/RIB%2013-024.pdf, archived at http://perma.cc/B2SZ-UNK7.
[11] See Louisiana Resident Income Tax Return Form (IT-540) (2012), available at http://www.revenue.louisiana.gov/forms/taxforms/IT540i(2012)F.pdf, archived at http://perma.cc/LN2S-LQCT; see also Julia O’Donoghue, Commission to Study Federal Influence on Louisiana’s Definition of Marriage, The Times-Picayune (Sept. 10, 2013), http://www.nola.com/politics/index.ssf/2013/09/commission_to_study_federal_in.html, archived at http://perma.cc/4FP3-NYC5.
[12] Mark Ballard, Same-Sex Tax Rules Create Trouble for La., The Advocate (Sept. 5, 2013), http://theadvocate.com/home/6964271-125/new-same-sex-marriage-tax-rules, archived at http://perma.cc/5TXR-4V38; Mark Ballard, La. Department of Revenue: Gay Couples Must File Separately, The Advocate (Sept. 16, 2013), http://theadvocate.com/home/7050818-125/revenue-gay-couples-file-married, archived at http://perma.cc/Y2MY-UFF8.
[13] Mark Ballard, La. Department of Revenue: Gay Couples Must File Separately, The Advocate (Sept. 16, 2013), http://theadvocate.com/home/7050818-125/revenue-gay-couples-file-married, archived at http://perma.cc/Y2MY-UFF8.
[14] See Memorandum from the Secretary of Defense to the Secretaries of the Military Departments Under Secretary of Defense for Personnel and Readiness (Aug. 13, 2013), available at http://www.defense.gov/home/features/2013/docs/Extending-Benefits-to-Same-Sex-Spouses-of-Military-Members.pdf, archived at http://perma.cc/2ULQ-ERAY.
[15] See Melinda Deslatte, National Guard Sites to Take Same-Sex Benefit Form, The Advocate (Dec. 6, 2013), http://theadvocate.com/news/7766686-123/national-guard-sites-to-take, archived at http://perma.cc/AKU4-NX5G.
[16] Hagel Says Louisiana National Guard Policy on Gay Couples ‘Wrong’, The Times-Picayune (Nov. 1, 2013, 2:31 PM), http://www.nola.com/politics/index.ssf/2013/11/chuck_hagel_louisiana_gay_righ.html, archived at http://perma.cc/PY97-FZSN; National Guard Changes Same-Sex Policy, The Advocate (Dec. 11, 2013), http://theadvocate.com/home/7767424-125/national-guard-changes-same-sex-policy, archived at http://perma.cc/4C5C-42VN.
[17] Emma Margolin, National Guard Ends Holdout on Same-Sex Marriage Benefits, MSNBC (Dec. 14, 2013, 11:20 AM), http://www.msnbc.com/news-nation/national-guard-ends-holdout-lgbt-benefits, archived at http://perma.cc/G28U-3PCG.
[18] Chatelain, supra note 7, at 328.
[19] Id. at 329–39.
[20] La. Const. art. XII, § 15.
[21] La. Civ. Code art. 3520(B) (2015).
[22] Same Sex Marriage Fast Facts, supra note 2. These states are Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Montana, Nevada, North Carolina, Oklahoma, South Carolina, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. Id.
[23] Order, Certiorari Granted at 1–2, 574 U.S. (Jan. 16, 2015), available at http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf, archived at http://perma.cc/GHP6-M6MW.
[24] See Kevin McGill, Louisiana Supreme Court Urged To Rule In Same-Sex Marriage, Associated Press (Jan. 29, 2015), http://www.sunherald.com/2015/01/29/6044473/louisiana-supreme-court-urged.html, archived at http://perma.cc/Q594-327A.
[25] See Order, Certiorari Granted at 1, 574 U.S. (Jan. 16, 2015), available at http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf, archived at http://perma.cc/MCH8-4N4C.
[26] See La. Const. art. XII, § 15; La. Civ. Code art. 3520(B) (2015).
[27] See Order, Certiorari Granted at 1, 574 U.S. (Jan. 16, 2015), available at http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf, archived at http://perma.cc/MCH8-4N4C.
[28] La. Civ. Code art. 3520(B) (2015).
[29] La. Const. art. XII, § 15.
[30] Same Sex Marriage Fast Facts, supra note 2.
[31] Id. As previously mentioned, 24 states have legalized same-sex marriage since the Supreme Court’s decision in Windsor, increasing the total number of states in which same-sex marriage is legal to 37, a comfortable majority of the nation as a whole.