1158700v1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
JONATHAN P. ROBICHEAUX, et al.,
Plaintiffs
v.
JAMES D. CALDWELL, et al.,
Defendants
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CIVIL ACTION
NO. 13-5090 C/W 14-97 &14-327
SECTION F(5)
JUDGE MARTIN L.C. FELDMAN
MAGISTRATE MICHAEL NORTH
REF: ALL CASES
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PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT AND DISMISSAL
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Plaintiffs oppose Defendants' Motion for Partial Summary Judgment and Dismissal (Rec.
Doc. 84).
I. SUMMARY OF ARGUMENT
In these consolidated marriage-equality cases, the Court permitted the parties to submit
cross-motions on whether the Fourteenth Amendment requires Louisiana to recognize same-sex
marriages validly celebrated in other jurisdictions. Rec. Doc. 75. Plaintiffs submitted a motion
for partial summary judgment, Rec. Doc. 86, and Defendants submitted a cross-motion for
partial summary judgment and dismissal. Rec. Doc. 84. The parties' cross-motions present two
primary issues: (1) the level of constitutional scrutiny that the Court should apply to Louisiana's
Anti-Recognition Laws
1
and (2) whether Defendants have provided a sufficient rationale.
To support their motion, each Defendant submitted an affidavit attesting that he or she
must refuse to recognize the marriages of same-sex couples because of current Louisiana law and
only for that reason. Barfield Aff., Rec. Doc. 84-4 at 8; Kliebert Aff., Rec. Doc. 84-5 at 8-
10; George Aff., Rec. Doc. 84-6 at 6-9. Defendants offer no evidence to support the laws
beyond those three affidavits, but they argue that they are entitled to summary judgment as a
matter of law. Specifically, Defendants offer two arguments in support of the Anti-Recognition
Laws: that the laws promote heterosexual marriage, which "links children with their biological
parents", and that recognition of same-sex marriage should only occur through "social
consensus." Both arguments are specious and belied by the undisputed facts of this case.
2


1
As defined in Plaintiffs' original brief, Louisiana's Anti-Recognition Laws are Article XII, Section 15 of the
Louisiana Constitution, Louisiana Civil Code article 3520(B), and any other Louisiana laws denying
recognition to valid same-sex marriages celebrated in other jurisdictions.
2
In opposition to Defendants' motion, Plaintiffs incorporate the argument and evidence they submitted to
support their motion for partial summary judgment.
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The Anti-Recognition Laws do not promote heterosexual marriage at all. Instead, they
harm same-sex couples and their families. It is an undisputed fact that three of the Plaintiff
couples are raising children. One couple, Courtney and Nadine Blanchard, used assisted
reproductive technology to conceive their child. Ex. 3 to Pls.' Mot, Rec. Doc. 86-7 at 13; Ex. 4
to Pls.' Mot, Rec. Doc. 86-8 at 13. The couple used Courtney's egg, but Nadine carried the
child.
3
Id. Because Nadine gave birth to the child, Louisiana only recognizes her as the child's
mother though the child is biologically Courtney's. Id. The Blanchards exemplify the deficiency
of Defendants' contention that the Anti-Recognition Laws have the purpose of "linking children
with biological parents." Rec. Doc. 84-1 at 16. Instead, these laws have the opposite effect. The
sole purpose and effect of the Anti-Recognition Laws is to demean and deny recognition to
validly married same-sex couples. In the process, the laws harm children by denying a link
between a parent and her childeven when they share a biological link.
Defendants' argument that Louisiana law should only change through social consensus
lacks fundamental understanding of (or simply ignores) the history of Louisiana and current
events. In the late 1950's and 1960's, despite a lack of social consensus on the issue, this Court
was required to intervene when Louisiana resisted racial integration. And just last month, the
Louisiana Legislature refused to prohibit housing discrimination on the basis of sexual
orientation and maintained an anti-sodomy law that blatantly violates the United States
Constitution. Clearly, discrimination against Plaintiffs and other same-sex couples will not end
through social consensus. Like racial segregation, a change in the unconstitutional Anti-
Recognition Lawswhich serve only to institutionalize and sanction discrimination against gay,
lesbian, and bisexual Louisianansrequires intervention by this Court.

3
Many couples are using this method of conception, known as reciprocal in vitro fertilization.
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II. LAW AND ARGUMENT
A. The Court Should Apply Heightened Scrutiny to Defendants' Equal
Protection Violation.
Plaintiffs discussed the reasons for heightened scrutiny in their opening memorandum.
Rec. Doc. 86-1 at 9-16. In United States v. Windsor, the Court expressly applied "careful
consideration" to consider the constitutionality of DOMA because the law's purpose and effect
was to disapprove and stigmatize same-sex couples. 133 S. Ct. 2675, 2693 (2013). The Court's
"careful consideration" review was later held by the Ninth Circuit to be equivalent to heightened
scrutiny. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014)
4
; see
also Latta v. Otter, No. 1:13-00482, 2014 U.S. Dist. LEXIS 66417 at *52 (D. Idaho May 13,
2014) ("If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have
applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court
applied heightened scrutiny.").
Louisiana's Anti-Recognition Laws reflect the same disapproval and stigmatization of
same-sex couples as DOMA, and they warrant the same treatment. Defendants boldly state that
Plaintiffs' suggestion that the Anti-Recognition Laws reflect discrimination and animus (by
comparison to race cases, such as Loving v. Virginia) "demeans and humiliates the citizens of
those 34 states, Louisiana among them, who have elected to define marriage as the union of a
man and a woman." Rec. Doc. 84-1 at 24. It takes real cheek for Defendants to assert that it is
Plaintiffs who demean others, especially considering the hardships that Plaintiffs and other same-
sex couples encounter daily due to the laws that Defendants enforce. Amici J. Randall Trahan

4
Defendants seek to limit SmithKline by noting that a call has been made in the Ninth Circuit for briefing on
whether SmithKline should be reviewed en banc. But the SmithKline appellant has not argued that the
original Ninth Circuit panel erred in its interpretation of Windsor, but rather that the panel's application of
Batson was flawed because a comparative juror analysis was required. See Rec. Doc. 92 in No. 11-17357
(9th Cir.). In any event, the case's reasoning is persuasive authority.
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and Katherine Shaw Spaht speculate extensively in their brief about the legislature's intent in
enacting Louisiana Civil Code Article 3520(B) in 1999. Rec. Doc. 97 at 5-12. But amici do not
cite to any legislative history and simply opine as to what the legislature must have intended.
5
In
any event, their discussion is irrelevant. "When a distinction between groups of persons appears
on the face of a state law or action, an intent to discriminate is presumed and no further
examination of legislative purpose is required." Secsys, LLC v. Vigil, 666 F.3d 678, 685 (10th
Cir. 2012); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1281-82 (N.D. Okla.
2014), appeal docketed 14-5003 (10th Cir.).
Like DOMA, the Anti-Recognition laws "creat[e] two contradictory marriage regimes
within the same State" and "place[] same-sex couples in an unstable position of being in a
second-tier marriage." Windsor, 133 S. Ct. at 2694. "The differentiation demeans the couple,
whose moral and sexual choices the Constitution protects." Id. The Anti-Recognition Laws also
"divest[] married same-sex couples of the duties and responsibilities that are an essential part of
married life and that they in most cases would be honored to accept were [the Anti-Recognition
Laws] not in force." Id. at 2695. And thus, like DOMA, the Anti-Recognition Laws are a
"deprivation of the liberty of the person" that is protected by the Constitution. Id.
Currently, the Ninth Circuit, the Second Circuit, several district and state supreme courts,
and the Executive Branch have all determined that heightened scrutiny applies to sexual

5
Trahan and Spaht also rely on "ancient Louisiana civil law sources" to support their argument for the
current definition of marriage, including Spanish civil law from the 1820's and, Louisiana's Civil Code
from 1825 and 1827 (originating from the Napoleonic Code). These same "ancient sources" served as a
source for Louisiana's Code Noir, which sanctioned slavery, prohibited African Americans from voting or
holding office, and imposed a three-tiered racial caste system. See, e.g., United States v. Louisiana, 225 F.
Supp. 353, 363 (E.D. La. 1963) ("Thus, from the Code Noir of 1724 until 1864, the organic law of the state
ordained that only free white males could vote or hold office. This was in a state where there were
thousands of free men of color."). Just because a law derives from an "ancient source" does not render it
unassailable. See Heller v. Doe, 509 U.S. 312, 326 (1993) (the "[a]ncient lineage of a legal concept does
not give it immunity from attack for lacking a rational basis.").
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orientation classifications.
6
The Fifth Circuit has had no reason to address the issue since
Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).
7
Even then, the Fifth Circuit did not
need to examine the appropriate level of scrutiny because the alleged treatment of the plaintiff
would have been unconstitutional under rational basis scrutiny. Id. at 532-33 ("Defendants have
not attempted to argue that according homosexuals less protection than other inmates would
advance any legitimate aim."). And cases decided before Lawrence v. Texas, 539 U.S. 558
(2003), date from the period before the Supreme Court recognized the unconstitutionality of
criminalizing consensual intimacy between same-sex couples. Bowers v. Hardwick, 478 U.S.
186 (1986), overruled by Lawrence. Because of the significant doctrinal evolution regarding gay
rights in recent years (as reflected by Romer,
8
Lawrence, and Windsor), the historical and
ongoing discrimination experienced by gay and lesbian citizens, and their political powerlessness
to remedy that discrimination, this Court should agree with the Second and Ninth Circuits and
hold that sexual orientation is a quasi-suspect classification that warrants heightened equal
protection scrutiny. SmithKline, 740 F.3d at 484; Windsor, 699 F.3d at 185.

6
SmithKline, 740 F.3d at 484; Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), aff'd 133 S. Ct.
2675 (2013); Pederson v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 333 (D. Conn. 2012); Golinski v.
U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 989 (N.D. Cal. 2012); Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 997 (N.D. Cal. 2010), aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated
and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); In re Balas, 449 B.R. 567, 576
(Bankr. C.D. Cal. 2011); Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013); Kerrigan v. Comm'r of Pub.
Health, 957 A.2d 407, 473 (Conn. 2008); In re Marriage Cases, 183 P.3d 384, 444 (Cal. 2008); Letter from
Eric Holder, Att'y Gen., to Congress Regarding Litigation Involving the Defense of Marriage Act (Feb. 23,
2011), http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.
7
In James v. Hertzog, 415 F. App'x 530, 532 (5th Cir. 2011), the court cited Johnson for the proposition that
rational basis applies to sexual orientation classifications; however, the sentence is dicta because the court
determined that the plaintiff was not discriminated against on the basis of sexual orientation.
8
Romer v. Evans, 517 U.S. 620 (1996).
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B. The Court Should Hold that Plaintiffs' Right to Marry Is a Fundamental
Right Subject to Strict Scrutiny.
Contrary to Defendant's argument, Plaintiffs do not ask this Court to "break new ground"
by recognizing that their right to marry is a fundamental liberty interest. Rec. Doc. 84-1. The
right to marry has long been recognized as a fundamental right.
9
All individuals share in
fundamental rights. U.S. Const. amend. XIV, 1 ("nor shall any State deprive any person
oflibertywithout due process of law") (emphasis added); see also Kitchen v. Herbert, 961 F.
Supp. 2d 1181, 1204 (D. Utah 2013), appeal docketed, No. 13-4178 (10th Cir.). Amici curiae
Lambda Legal et al. ably explained that the recognition of Plaintiffs' marriages is not the creation
of a new "right to same-sex marriage," just as the right to marry that was protected by Loving
was not a "right to inter-racial marriage." Rec. Doc. 92 at 9-10. Characterizing the right as a
"right to same-sex marriage" repeats the mistake of Bowers, which refused to recognize a right to
"homosexual sodomy", by limiting the right too narrowly. Latta, 2014 U.S. Dist. LEXIS at *40
("Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights
to make intimate personal decisions as heterosexual individuals enjoy, but that judicial attempts
to parse those rights out of existence will be met with a harsh rebuke.").
Defendants criticize other district courts that have extended the right to marry to same-
sex couples, arguing that because those courts do not limit the right to heterosexual marriage,
they fail to carefully describe the asserted fundamental liberty interest. Rec. Doc. 84-1 at 22.
But in the past, the fact that a particular right was not enjoyed by all did not mean that the right
was not fundamental. For instance, the right to vote is a fundamental right. Angel v. Fairfield,

9
Loving v Virginia, 388 U.S. 1, 12 (1967) (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."); see also Meyer v.
Nebraska, 262 U.S. 390, 399 (1923); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); M.L.B. v. S.L.J.,
519 U.S. 102, 116 (1996).
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793 F.2d 737, 739 (5th Cir. 1986). Nevertheless, women were prohibited from voting until a
1920 constitutional amendment was passed after gradual challenge and repeal of local and state
laws that denied women this fundamental right. Lawrence recognized a right to sexual intimacy
between unmarried consenting adults, even though it was historically forbidden. 539 U.S. at 569
(2003) (Scalia, J., dissenting) (discussing the history of anti-sodomy laws).
Although there is no tradition of legal same-sex marriage in Louisiana, marital
recognition would vindicate Plaintiffs' exercise of their fundamental right to marry that the
Fourteenth Amendment extends to all persons. Same-sex couples are, like all others, "entitled to
recognition and protection to enhance their own liberty." Windsor, 133 S. Ct. at 2695.
Louisiana's Anti-Recognition Laws share with DOMA the "purpose and effect to disparage and
injure" (id. at 2710) same-sex couples in violation of their fundamental right to marry, and the
result of "treating those persons as living in marriages less respected than others" (id. at 2696).
Thus, the laws are subject to strict scrutiny.
C. Defendants Have Not Offered a Rational Justification for the Anti-
Recognition Laws.
The Court should employ heightened or strict scrutiny to assess the constitutionality of
the Anti-Recognition Laws. But even the lowest tier of scrutiny requires Defendants to
demonstrate that the challenged laws are rationally related to a legitimate state interest. Doe v.
Jindal, 851 F. Supp. 2d 995, 1006 (E.D. La. 2012). The state "may not rely on a classification
whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985). In
instances where the Court has reason for concern about possible discrimination against a
minority group, rational basis review becomes "a more careful assessment" that is subject to
"greater rigor" than traditional rational basis review. Massachusetts v. U.S. Dep't of Health and
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Human Serv., 682 F.3d 1, 11 (1st Cir. 2012); United States v. Then, 56 F.3d 464, 468 (2d Cir.
1995) (Calabresi, J., concurring).
Defendants offer two rationales for the Anti-Recognition Laws: (1) "linking children
with an intact family formed by their biological parents," Rec. Doc. 84-1 at 16, and (2) "to ensure
that a change as profound as altering the basic definition of marriage would occur only through
wide social consensus," id. at 18. Neither purported rationale satisfies rational basis scrutiny.
1. "Natural Procreation" Is Not a Sufficient Basis for the Anti-
Recognition Laws.
The Court should reject Plaintiffs' "natural procreation" rationale for several reasons.
a. The Anti-Recognition Laws Do Not Affect Heterosexual
Persons or Their Marriages.
First, the Defendants cannot rationally link the Anti-Recognition Laws to their goal of
promoting "natural procreation" because the laws do not affect heterosexuals at all. The Anti-
Recognition Laws only affect same-sex couples. Defendants do not explain how denying
recognition to same-sex marriages has any effect on heterosexuals whatsoever.
10
See Perry v.
Schwarzenegger, 704 F. Supp. 2d at 972 ("permitting same sex couples to marry will not affect
the number of opposite sex couples who marry, divorce, cohabit, have children outside of the
marriage or otherwise affect the stability of opposite sex marriages.").
Nor do the Defendants explain how the Anti-Recognition Laws work to link children
with biological parents. If a heterosexual woman becomes pregnant, the incentives for her and

10
Amici Alan J. Hawkins and Jason S. Carroll make the incredible and, frankly, bizarre conclusory argument
that recognition of same sex marriage will somehow impact the "way that heterosexual men create their
masculine identities." They posit that defining marriage in "genderless terms" will cause heterosexual men
to "view marriages as unrelated to their sense of maleness" and "diminish the likelihood of men being
responsible fathers." Rec. Doc. 94 at 19-21. These amici present no facts demonstrating that heterosexual
men are impacted at all by how a state defines marriage. The argument also begs the question whether all
laws are meant only to serve the interests of protecting heterosexual men and to prevent them from
devolving into a state of "immature, self-centered masculinity." Id. at 17.
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her partner to marry are exactly the same, whether or not Louisiana recognizes same-sex couples
who wed elsewhere. Thus, the State's purported justification fails to provide the necessary
rational link between the classification and the professed governmental end. For this reason,
many other courts presented with this rationale for same-sex marriage have found it
unpersuasive. See, e.g., Bishop, 962 F. Supp. 2d at 1291 ("Marriage is incentivized for naturally
procreative couples to precisely the same extent regardless of whether same-sex couples (or
other non-procreative couples) are included."); Bostic v. Rainey, 970 F. Supp. 2d 456, 478 (E.D.
Va. 2014) appeal docketed sub nom. Bostic v. Schaefer, No. 14-1167 (4th Cir.) ("[T]he purported
'for-the-children' rationale fails to justify Virginia's ban on same-sex marriage because
recognizing a gay individual's fundamental right to marry can in no way influence whether other
individuals will marry, or how other individuals will raise families."); De Leon v. Perry, No. 13-
00982, 2014 U.S. Dist. LEXIS 26236, at *42-43, appeal docketed (W.D. Tex. 2014)
("Defendants' proffered reason fails rational basis because Defendants have failed to establish
how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will
marry, or how other individuals will raise their families."); Goodridge v. Dep't of Pub. Health,
798 N.E.2d 941, 963 (Mass. 2003) ("The department has offered no evidence that forbidding
marriage to people of the same sex will increase the number of couples choosing to enter into
opposite-sex marriages in order to have and raise children.").
b. Procreation Is Not a Prerequisite for Different-Sex
Marriage and Should Not Be Prerequisite for Same-Sex
Marriage.
Louisiana has never limited recognition of marriage to only the marriages of couples who
intend to have children. Indeed, recognition of a heterosexual couple's marriage never hinges on
whether they can or plan to have children. Under the "natural procreation" rationale, however,
the State could constitutionally deny or withdraw the right to marry or marital benefits from
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infertile citizens or couples who do not intend to have children. See Kitchen, 961 F. Supp. 2d at
1201 ("Under the State's reasoning, a post-menopausal woman or infertile man does not have a
fundamental right to marry because she or he does not have the capacity to procreate."). But
Defendants admit that such an inquiry into its citizens' procreative intentions or capacity would
be an unconstitutional governmental invasion of privacy. Rec. Doc. 84-1 at 17 ("Louisiana need
not violate its citizens' privacy to prove it is rational to link marriage to procreation."). Indeed,
Defendants undercut the logic of their own argument: "The simple answer: of course marriage
laws have never imposed anything so bizarre as 'procreative prerequisites.'" Id. at 16. How then,
is it appropriate for the State to justify its ban on marriage recognition by arguing that same-sex
couples are unable to "naturally" procreate? Id. at 15. Defendants cannot constitutionally
impose a "procreative prerequisite" on only same-sex couples by using sexual orientation as a
proxy for fertility, assuming that gays and lesbians are infertile, denying them marriage rights,
and (as in the case of the Blanchards) denying them a legally-recognized link to their own
biological children.
The reality is that both heterosexual and same-sex couples in committed relationships use
alternative means such as adoption or assistive reproductive technology to have children.
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Use
of such means does not make those couples or their children less worthy of state recognition.
Here, three of the Plaintiff couples demonstrate that same-sex couples are having and raising
children in Louisiana. "The reality is that same-sex couples, while not able to 'naturally

11
Louisiana recognizes that persons, other than biological parents, are fully capable of caring for and raising
children. La. Child. Code art. 1221 ("a single person, eighteen years or older, or a married couple jointly
may petition to privately adopt a child."). Indeed, Louisiana law permitted Plaintiff Nick Van Sickels to
adopt his daughter as a "single person." But because his marriage to Andrew Bond is not recognized in
Louisiana, Andrew cannot adopt their daughter. If Defendants' purpose of the Anti-Recognition Laws is
"linking children with their biological parents", then the adoption laws run counter to that purpose. If the
Defendants' purpose is "preservation of the family unit [and] avoidance of the stigma of illegitimacy," then
Nick, Andrew, and their daughter demonstrate why the Anti-Recognition Laws are not related to that stated
purpose.
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procreate', can and do have children by other means." Bishop, 962 F. Supp. 2d at 1292. As one
federal district court noted recently,
Prohibiting gays and lesbians from marrying does not stop them from forming
families and raising children. Nor does prohibiting same-sex marriage increase
the number of heterosexual marriages or the number of children raised by
heterosexual parents. There is, in short, no logical connection between banning
same-sex marriage and providing children with an 'optimal environment' or
achieving 'optimal outcomes.'
Deboer v. Snyder, No. 12-10285, 2014 U.S. Dist. LEXIS 37274, at *40 (E.D. Mich. March 21,
2014).
Defendants and amici in support of Defendants seem to be arguing for a "most favored"
class of children"children with an intact family formed by their biological parents." Rec. 83-1
at 15. Defendants and their supporters argue that Louisiana marriage laws are meant to protect
"not just any children, but children whom the parents produce together through sexual
intercourse with one another." Rec. Doc. 97, Br. of J. Randall Trahan and Katherine Shaw Spaht,
at 13. Demeaning the worth of same-sex families (as well as different-sex adoptive families,
single-parent adoptive families, and blended families) is the type of prejudice that Windsor
criticized and rejected. 133 S. Ct. at 2694.
Defendants' supporters also cite discredited social science studies to argue that a
"biological mother and father provide optimal child outcomes." Rec. 91, Br. of Social Science
Professors at 10, citing study by Mark Regnerus. In truth, there is no credible scientific support
that only opposite sex, married, biological parents are capable of successfully raising children.
See Deboer, 2014 U.S. Dist. LEXIS 37274 at *22-23, 30 (finding Regnerus's study and
testimony "represent a fringe viewpoint", "entirely unbelievable and not worthy of serious
consideration" and that the study was "hastily concocted at the behest of a third-party funder"
who "clearly wanted a certain result, and Regnerus obliged."). For a further discussion of
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accepted and modern research supporting adoption by different-sex and same-sex couples,
Plaintiffs respectfully refer the Court to the Brief of Amicus Curiae the Donaldson Adoption
Institute in Support of Plaintiffs. Rec. Doc. 99.
But the Court need not resolve any disputes among the social scientiststo the extent
there is a legitimate disputebecause there is no logical link between child welfare and the Anti-
Recognition Laws. See Latta, 2014 U.S. Dist. LEXIS at *66 ("The parties' debate over the
scientific literature distracts from the essential inquiry into the logical link between child welfare
and Idaho's wholesale prohibition of same-sex marriage. That link is faulty."). If the State's
goal is to prevent or discourage same-sex couples from having and raising children, the Anti-
Recognition Laws are an ineffective, illogical, bizarre, and irrational means to achieve it. See
Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 994 (S.D. Ohio 2013), appeal docketed ("there is
simply no rational connection between the Ohio recognition marriage bans and the asserted goal,
as Ohio's marriage recognition bans do not prevent gay couples from having children"). Nor
would a goal of preventing gay and lesbian citizens from having families be constitutional or
legitimate. Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (mandated
sterilization of habitual criminals unconstitutional). Like the other states before it, Louisiana
fails to "advance any reason why the government may use sexual orientation as a proxy for
fertility or why the government may need to take into account fertility when legislating." Perry
v. Schwarzenegger, 704 F. Supp. 2d at 997.
c. The State's Procreation Argument Disregards Supreme
Court Precedent.
Third, Defendants' argument ignores that other benefits and purposes of marriage cannot
be denied to same-sex couples without legitimate justification. In Turner v. Safley, 482 U.S. 78
(1987), the Court held that prisoners have a right to marry even though they cannot procreate.
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Writing for the Court, Justice O'Connor identified many aspects and benefits of marriage that
created a right to marry separate and apart from a person's reproductive ability or intent:
First, inmate marriages, like others, are expressions of emotional support and
public commitment. These elements are an important and significant aspect of the
marital relationship. In addition, many religions recognize marriage as having
spiritual significance; for some inmates and their spouses, therefore, the
commitment of marriage may be an exercise of religious faith as well as an
expression of personal dedication. Third, most inmates eventually will be released
by parole or commutation, and therefore most inmate marriages are formed in the
expectation that they ultimately will be fully consummated. Finally, marital status
often is a precondition to the receipt of government benefits (e. g., Social Security
benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and
other, less tangible benefits (e. g., legitimation of children born out of wedlock).
These incidents of marriage, like the religious and personal aspects of the
marriage commitment, are unaffected by the fact of confinement or the pursuit of
legitimate corrections goals.
Taken together, we conclude that these remaining elements are sufficient to form
a constitutionally protected marital relationship in the prison context.
482 U.S. at 95-96. All the reasons that Justice O'Connor identified for why inmates have a
fundamental right to marry apply equally to same-sex couples.
12
See Kitchen, 961 F. Supp. 2d at
1211. Turner did not tie marriage to procreation because, of course, the Missouri inmates could
not procreate because they were confined. Thus, a couple cannot be denied a right to marry
because they cannot or do not intend to "naturally procreate." Cf. Lawrence, 539 U.S. at 567 ("it
would demean a married couple were it to be said marriage is simply about the right to have
sexual intercourse").
13

12
This includes the legitimation of children born out of wedlock. Louisiana permits the husband of a single
mother to establish a presumption of filiation to her child without proof of a biological link. See La. Civ.
Code art. 195. Same-sex couples, just like different-sex couples, might marry to legitimize and establish
filiation between a child and stepparent.
13
Amici Trahan and Spaht discuss a "positive duty of 'fidelity'" that is owed by spouses under article 98 of
the Louisiana Civil Code. Rec. Doc. 97 at 7 n. 8. This "duty" reeks of outdated sexist attitudes that our
society long ago rejected and would present several insurmountable constitutional problems if the courts
attempted to enforce it today. In 1990, the Louisiana Legislature recognized the evolution in thinking on
this matter by eliminating the spousal rape exception from Louisiana law. See La. R.S. 14:41; 1990 La.
Act. 722.
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d. The True Purpose of the Anti-Recognition Laws Are
Not Procreation, But Rather Discrimination.
Finally, the "natural procreation" rationale fails because, clearly, the true purpose of these
laws is to express Louisiana's disapproval of gays and lesbians. The State's proposed
justification in promoting a "biological link" is belied by the facts. As explained, Plaintiff
Courtney Blanchard is denied filiation to her biological child because her wife carried the child
to term. Their child and hundreds of others are denied the protections that flow from having two
recognized parents, and they suffer the same humiliation that disturbed the Windsor court. See
133 S. Ct. at 2694. "The only effect the bans have on children's well-being is harming the
children of same-sex couples who are denied the protection and stability of having parents who
are legally married." Obergefell, 962 F. Supp. 2d at 994-995. The result is exceedingly harmful
to the couple and their children.
The illogic of Defendants' argument is highlighted by Trahan and Spaht. They argue that
the purpose of marriage is to allow "spouses [to] mutually assume the moral and material
direction of family," to ensure the "responsibility of parents to support their children," and that
such "obligation of support springs at least in part from the marriage itself." Rec. Doc. 97 at 18.
The Anti-Recognition Laws, however, effectively annul Plaintiffs' marriages, prevent
legitimization of their children, and strip them of the responsibilities of marriage, including the
support and guidance of their children. For instance, if the legally recognized parent of a child
dies or becomes incapacitated, the surviving "non-legal" parent has no automatic authority under
the law to make decisions for the child or even to retain custody of the child. This example also
demonstrates why the Court should reject Defendants' suggestion that same-sex couples can
"arrang[e] their affairs by contract" in lieu of Louisiana's recognition of their marriages. Rec.
Doc. 84-3 at 8. Louisiana law provides no mechanism to "contract" for custody of a child. The
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only means for obtaining custody of a non-biological child is through adoption, but the Anti-
Recognition Laws preclude Plaintiffs from adopting their children jointly. Far from promoting
stable, intact families that are beneficial to childrearing, the Anti-Recognition Laws are
detrimental to stable families.
Windsor makes clear that same-sex couples and children raised by same-sex couples are
as deserving as other families and children. 133 S. Ct. at 2694. Louisiana has not demonstrated
any legitimate reason for its refusal to recognize marriages same-sex couples or extend the
benefits and protections of the law to their children.
2. Plaintiffs Need Not Wait for Social Consensus to Vindicate
Their Constitutional Rights.
Because Defendants assume that Louisiana may permissibly deny recognition to same
sex marriage, they argue that Plaintiffs must wait for the formation of a social consensus in favor
of same-sex marriage before realizing the constitutional guarantee of due process and equal
protection of the law. But where individual rights are violated, the courts have never required
nor waited for social consensus before vindicating these rights. By definition, there is no "social
consensus" when minority rights have been violated by the government. Indeed, the past sixty
years of constitutional jurisprudence have been marked by important decisions when the court
vindicated minority rights ahead of social consensus.
Well before social consensus existed on the issue, Brown v. Board of Education held that
segregation in public schools violated the equal protection rights of plaintiff students. 347 U.S.
483, 495 (1954). The utter lack of social consensus surrounding school desegregation at the time
was most dramatically displayed in the battle over integration of Little Rock's Central High
School. See Cooper v. Aaron, 358 U.S. 1, 8-9 (1958). But in Brown v. Board of Education
(Brown II), the Court ordered that desegregation occur "with all deliberate speed," despite the
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difficulties presented by integration.
14
349 U.S. 294, 301 (1955). The Court emphasized that "it
should go without saying that the vitality of these constitutional principles cannot be allowed to
yield simply because of disagreement with them." Id. at 300.
As Judge Wisdom wrote in Hall v. St. Helena Parish School Board, "[o]ne of the
purposes of the Constitution of the United States was to protect minorities from the occasional
tyranny of majorities. No plebiscite can legalize an unjust discrimination." 197 F. Supp. 649,
659 (E.D. La. 1961). In Hall and numerous other cases, the Fifth Circuit repeatedly enforced the
rule of Brown against state legislative and executive action designed to maintain school
segregation. Id.; see, e.g., Lee v. Macon Cnty. Bd. of Ed., 448 F.2d 746, 753-54 (5th Cir. 1971);
Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 852 (5th Cir. 1967); United States v. Jefferson
Cnty. Bd. of Ed., 372 F.2d 836, 878 (5th Cir. 1966); Singleton v. Jackson Mun. Separate Sch.
Dist., 355 F.2d 865, 869-70 (5th Cir. 1966); Singleton v. Jackson Mun. Separate Sch. Dist., 348
F.2d 729, 731 (5th Cir. 1965); Bush v. Orleans Parish Sch. Bd., 308 F.2d 491, 499 (5th Cir.
1962); Poindexter v. La. Fin. Assistance Comm'n, 275 F. Supp 833, 856-57 (E.D. La. 1967). The
Louisiana Legislature and Governor met Brown's desegregation decree with multiple, varied
attempts to circumvent the law, even passing a constitutional amendment aimed at protecting
segregation. Poindexter, 275 F. Supp. at 835; see also Bush, 308 F.2d at 493-94; Hall, 197 F.
Supp at 659. The electorate of Louisiana approved the constitutional amendment, but the Fifth
Circuit declared it unconstitutional and invalidated it. See Poindexter, 275 F. Supp. at 840-41.

14
Because school desegregation vindicated constitutional guarantees, the courts repeatedly reiterated its
necessity despite the violence it provoked and the serious difficulties imposed by its implementation. See,
e.g., Cooper, 358 U.S. at 8-9. Although it does not affect the Court's analysis, Plaintiffs note that
recognition of the marriages of Plaintiffs and other same-sex couples merely integrates them in a system of
regulations already in place.
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The citizens of Louisiana responded to integration with "demonstrations, picketing,
stone-throwing, and turmoil that continued for months; all white parents withdrew their children
from one of the schools." Bush, 308 F.2d at 494. Despite this opposition and without social
consensus, the Fifth Circuit consistently required Louisiana and the other states within its
jurisdiction "to give effect to [constitutional] rights . . . by providing equal educational
opportunities." Jefferson Cnty., 372 F.2d at 873. Judge Wisdom's words regarding education are
relevant to marriage today: "When the state provides a benefit, it must do so evenhandedly.
'Such an opportunity, where the state has undertaken to provide it, is a right which must be made
available to all on equal terms.'" Hall, 197 F. Supp. at 659 (quoting Brown, 347 U.S. at 493).
The school desegregation struggle demonstrates that social consensus is unfortunately
often on the wrong side of minority constitutional rights. On a micro-level, the restrictive
covenants at issue in Shelley v. Kraemer reflected the consensus among thirty property owners to
allow only white homeowners into their neighborhood. 334 U.S. 1, 4 (1948). The Supreme
Court held that, though the covenants were adopted by private actors, judicial enforcement
violated the equal protection clause. Id. at 21. The Court's decision recognized the need for
minorities to be protected from housing discrimination at the hands of private actors because "the
enjoyment of property rights [is] . . . an essential pre-condition to the realization of other basic
civil rights and liberties." Id. at 10. But this pre-condition is not guaranteed to Plaintiffs. On
April 28, 2014, the Civil Law and Procedure Committee of the Louisiana House of
Representatives voted to shelve a bill that would guarantee protection from housing
discrimination for gay, lesbian, bisexual, and transgender individuals.
15


15
See Emily Lane, Louisiana House Kills Bill Adding LGBT People to Housing Non-discrimination Law,
NOLA.com, April 28, 2014, available at
http://www.nola.com/politics/index.ssf/2014/04/lbgt_fair_housing_louisiana_ho.html. Attached hereto as
Exhibit 1.
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In the First Amendment context, the Fifth Circuit held in Gay Student Services v. Texas
A&M University that Texas A&M could not abridge the freedom of association of certain gay
students by denying recognition to their student group. 737 F.2d 1317, 1330 (5th Cir. 1984).
Citing Texas' criminal prohibition against "homosexual conduct," the university refused to
recognize the student group because it was "likely to 'incite, promote and result' in homosexual
activity." Id. at 1321. Obviously, given the criminal sodomy law, no consensus supporting gays'
right of association existed in Texas at that time. But, although public opinion was against the
students, the court ensured their freedom of association. Id. at 1324; see also Church of Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520, 538 (1993) (holding that a town ordinance
preventing animal sacrifice "singled out for discriminatory treatment" the religious practices of a
Santeria church that tried to open in the town).
Of course, the Texas criminal sodomy statute has now been overturned by Lawrence as a
violation of a fundamental due process right. 539 U.S. 558. Even after this clear constitutional
ruling, on April 22, 2014, the Louisiana Legislature has refused to repeal provisions of
Louisiana's crimes against nature statute directed to consensual intimacy between adults.
16
This
shocking statement from the Louisiana Legislature demonstrates its utter refusal to acknowledge
Plaintiffs' constitutional rights, despite a Supreme Court mandate on the subject. As it did during
desegregation, the State has determined to actively work against Plaintiffs in their struggle for
equality, enacting constitutional amendments targeted at limiting their participation in society
and ignoring controlling precedent from the Supreme Court. See Poindexter, 275 F. Supp. at

16
Michelle Millhollon, Louisiana House Rejects Repeal of Unenforceable Law, The Advocate, April 22,
2014, available at http://theadvocate.com/news/8916428-123/louisiana-house-rejects-repeal-of. Attached
hereto as Exhibit 2.
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840-41. Plaintiffs must look to the federal courts for recognition of their rights rather than wait
for "social consensus."
The developments in constitutional jurisprudence of the past sixty years expose the error
in Defendants' argument that social consensus must precede the recognition of Plaintiffs'
marriages. Like the noble jurists that have come before, this Court must fulfill its responsibility
"to protect nationally created constitutional rights." Jefferson Cnty., 372 F.2d at 873.
Constitutional rights may not be denied while the nation debates their validity. "If the rule were
otherwise, the great guarantee of the equal protection clause would be meaningless." Hall, 197
F. Supp. at 658.
D. The Fourteenth Amendment Does Not Contain a Domestic Relations
Exception.
Defendants cite Windsor for the proposition that Plaintiffs' claims must fail because the
States have "virtually exclusive authority" to regulate domestic relations law. Rec. Doc. 84-1 at
4-7. Defendants argue that Windsor's affirmation of state authority to regulate domestic relations
necessarily defeats Plaintiffs' due process and equal protection claims. Rec. Doc. 84-1 at 6.
Defendants' federalism argument conflates different issues. Plaintiffs do not dispute that
Louisiana has authority to regulate marriage; the issue is the manner in which that authority is
exercised. Louisiana is constrained to exercise its domestic-relations power in a manner that is
consistent with the equal protection and due process guarantees of the Fourteenth Amendment.
1. The State Must Exercise Its Domestic Relations Power In
Accordance with Equal Protection and Due Process.
Defendants assert that Windsor affirmed the states' authority over domestic relations law
and claim that Windsor "teaches that states are authorized to determine the shape of marriage"
within their borders. Rec. Doc. 84-1 at 19-20. The Constitution, however, as the "supreme law
of the land," limits all state authority. U.S. Const. Art. VI. Even in areas of nearly exclusive
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state control, "[a] primary responsibility of federal courts is to protect nationally created
constitutional rights." Jefferson Cnty., 372 F.2d at 873. In short, "[i]t is . . . not the business of
federal courts how a state [regulates domestic relations]: as long as the state and its agents do not
violate the Constitution." Bush, 308 F.2d at 500.
Thus, although federalism favors protecting state's rights to select policies suited to
citizens within its borders, "[s]tates are not the sole intended beneficiaries of federalism." Bond
v. United States, 131 S.Ct. 2355, 2364 (2011). Federalism "also protects the liberty of all
persons within a State by ensuring that laws enacted in excess of delegated governmental power
cannot direct or control their actions. By denying any one government complete jurisdiction
over all the concerns of public life, federalism protects the liberty of the individual from arbitrary
power." Id. at 2364. Accordingly, "federalism" does not save Louisiana's Anti-Recognition
Laws because those laws violate the Constitution. Each day that the laws remain in effect, these
validly married Plaintiffs are deprived of their Fourteenth Amendment rights.
2. Windsor Did Not Authorize States to Violate the Fourteenth
Amendment.
Defendants reason that because Windsor upheld New York's "proper exercise of its
sovereign authority," 133 S. Ct. at 2692, in deciding to validate same-sex marriage, Louisiana's
decision to forbid and nullify same-sex marriages must also be proper. Rec. Doc. 84-1 at 18-19.
This argument ignores the constitutional questions of equal protection and due process presented
in this case. It is the Constitution, not Windsor, that "establish[es] a one-way ratchet" allowing
states to legislate above the constitutional minimum, but not below. Id. New York lawfully
recognized and then permitted same-sex marriage; as Defendants note, this was constitutionally
authorized. Id. Louisiana banned same-sex marriage and effectively annulled the marriages of
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Plaintiffs and similarly situated same-sex couples celebrated in other states, violating their
constitutional rights.
Windsor did not create a family law exception compliance with the Fourteenth
Amendment. Indeed, the Court explained that "[s]tate laws defining and regulating marriage, of
course, must respect the constitutional rights of persons." Windsor, 133 S. Ct. at 2691. Nothing
in Windsor overruled the well-settled precedent that States must comply with equal protection
and due process when exercising their power to regulate marriage. E.g., Turner v. Safley, 482
U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving, 388 U.S. 1. Rather, in
Windsor the Court found that Congress, by enacting DOMA, had departed from its traditional
reliance on State definitions of marriage, and this departure resulted in "interference with the
equal dignity of same-sex marriages, a dignity conferred by the States in their sovereign power."
133 S. Ct. at 2693. DOMA's interference in state-sanctioned marriages deprived married same-
sex couples of their individual liberty in violation of the Fifth Amendment. See 133 S. Ct. at
2695. Nothing in Windsor suggests that States that do not permit same-sex marriage are
therefore excused from complying with the Equal Protection and Due Process Clauses.
As Plaintiffs explained in their opening memorandum, Louisiana has already decided that
it will recognize heterosexual marriages that would not be permitted if they were celebrated on
Louisiana soil. Rec. Doc. 86-1 at 4-5. If Louisiana is going to extend recognition to foreign
marriages, it must apply the same rules to all marriages, or, if Louisiana wishes to apply different
rules to different marriages, it must offer a reason for the differential treatment that satisfies
equal protection and due process scrutiny. Through the Anti-Recognition Laws, Louisiana has
chosen the latter path. The Fourteenth Amendment demands, and nothing in Windsor excuses,
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that Louisiana supply a constitutional justification for its discriminatory treatment of married
same-sex couples.
E. The Full Faith and Credit Clause Does Not Authorize the Anti-Recognition
Laws.
Defendants' argument that the Full Faith and Credit Clause, U.S. Const. Art. IV, 1,
authorizes the Anti-Recognition Laws is also unpersuasive. Defendants argue that "[b]asic FFC
principlesauthorize a state not to recognize marriages that violate its public policy." Rec. Doc.
84-1 at 8. That much is not disputed, but the public policy must pass constitutional muster. A
State's public policy cannot arbitrarily target a group for discrimination without a legitimate
reason. The issue in this case is whether Louisiana has a constitutional justification for its public
policy to recognize practically all heterosexual marriages, even if they would be invalid if
celebrated in Louisiana, but deny recognition to similar same-sex marriages. Louisiana has
come forward with no legitimate reason for its public policy.
Louisiana's exercise of any power under the Full Faith and Credit Clause is constrained
by the Fourteenth Amendment. If there were any conflict between the powers authorized by the
Full Faith and Credit Clause and the Fourteenth Amendment, the amendment controls. See
Schick v. United States, 195 U.S. 65, 68-69 (1904).
Defendants also argue that Plaintiffs' causes of action are foreclosed by Section 2 of the
Defense of Marriage Act, 28 U.S.C. 1738C. Rec. Doc. 84-1 at 10. But Defendants' reliance on
DOMA Section 2 is misplaced. Congress cannot authorize a State to violate the Fourteenth
Amendment. Saenz v. Roe, 526 U.S. 489, 507 (1999); Townsend v. Swank, 404 U.S. 282, 291
(1971); Graham v. Richardson, 403 U.S. 365, 382 (1971); Shapiro v. Thompson, 394 U.S. 618,
641 (1969). Secondarily, Defendants waived reliance on Section 2 as an affirmative defense
Case 2:13-cv-05090-MLCF-ALC Document 100 Filed 05/19/14 Page 23 of 25
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because they did not plead it in their answer, as required by Rule 8(c). Ingraham v. United
States, 808 F.2d 1075, 1078 (5th Cir. 1987).
If the Court were to disagree with these arguments, then Plaintiffs also challenge the
constitutionality of DOMA Section 2 and request an opportunity for separate briefing on that
issue, with an invitation extended to the United States to participate in accordance with Rule 5.1
and 28 U.S.C. 2403. DOMA Section 2 is unconstitutional for a number of reasons, including
but not limited to (1) that it infringes the liberty and due process interests of same-sex couples in
a similar manner to Section 3, and thus also violates the Fifth Amendment; (2) that it exceeds the
scope of congressional authority because Congress has no power to abrogate Full Faith and
Credit, no more than Congress can abrogate equal protection or due process; and (3) that
application of the Full Faith and Credit clause is limited to recognition and enforcement of sister-
state judgments,
17
and since marriages are not judgments Congress had no power to speak to
recognition of marriages.
In sum, Defendants cannot excuse their equal protection and due process violations by
citation to the Full Faith and Credit Clause.

17
See Adar v. Smith, 639 F. 3d 146, 152-53 (5th Cir. 2011) (en banc).
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1158700v1
III. CONCLUSION
For all these reasons, the Court should deny Defendants' motion for partial summary
judgment and dismissal, and grant Plaintiffs' cross-motion.
Respectfully submitted,
/s/ J. Dalton Courson
J. Dalton Courson, 28542, T.A.
dcourson@stonepigman.com
John M. Landis, 7958
jlandis@stonepigman.com
Lesli D. Harris, 28070
lharris@stonepigman.com
Brooke C. Tigchelaar, 32029
btigchelaar@stonepigman.com
Maurine M. Wall, 34139
mwall@stonepigman.com
STONE PIGMAN WALTHER
WITTMANN L.L.C.
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504) 581-3200
Attorneys for Forum for Equality Louisiana,
Inc., Jacqueline M. Brettner, M. Lauren
Brettner, Nicholas J. Van Sickels, Andrew S.
Bond, Henry Lambert, R. Carey Bond, L.
Havard Scott, III, and Sergio March Prieto
s/ Richard G. Perque
Richard G. Perque, 30669
richard@perquelaw.com
LESLIE A. BONIN, LLC &
RICHARD G. PERQUE, LLC
700 Camp Street
New Orleans, Louisiana 70130
Phone: 504-524-3306
Fax: 504-529-4179
Attorney for Jonathan P. Robicheaux, Derek
Penton, Nadine Blanchard, and Courtney
Blanchard
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of May, 2014, the foregoing Memorandum
in Opposition to Defendants' Motion for Partial Summary Judgment and Dismissal has been
served upon all counsel of record by the Court's CM/ECF system.
/s/ J. Dalton Courson
Case 2:13-cv-05090-MLCF-ALC Document 100 Filed 05/19/14 Page 25 of 25
TABLE OF CONTENTS
Page
1158700v1
I. SUMMARY OF ARGUMENT...........................................................................................1
II. LAW AND ARGUMENT...................................................................................................3
A. The Court Should Apply Heightened Scrutiny to Defendants' Equal
Protection Violation. ................................................................................................3
B. The Court Should Hold that Plaintiffs' Right to Marry Is a Fundamental
Right Subject to Strict Scrutiny. ..............................................................................6
C. Defendants Have Not Offered a Rational Justification for the Anti-
Recognition Laws. ...................................................................................................7
1. "Natural Procreation" Is Not a Sufficient Basis for the Anti-
Recognition Laws. .......................................................................................8
a. The Anti-Recognition Laws Do Not Affect Heterosexual
Persons or Their Marriages. .............................................................8
b. Procreation Is Not a Prerequisite for Different-Sex
Marriage and Should Not Be Prerequisite for Same-Sex
Marriage. ..........................................................................................9
c. The State's Procreation Argument Disregards Supreme
Court Precedent..............................................................................12
d. The True Purpose of the Anti-Recognition Laws Are Not
Procreation, But Rather Discrimination.........................................14
2. Plaintiffs Need Not Wait for Social Consensus to Vindicate Their
Constitutional Rights. ................................................................................15
D. The Fourteenth Amendment Does Not Contain a Domestic Relations
Exception. ..............................................................................................................19
1. The State Must Exercise Its Domestic Relations Power In
Accordance with Equal Protection and Due Process. ................................19
2. Windsor Did Not Authorize States to Violate the Fourteenth
Amendment................................................................................................20
E. The Full Faith and Credit Clause Does Not Authorize the Anti-
Recognition Laws. .................................................................................................22
III. CONCLUSION..................................................................................................................24
Case 2:13-cv-05090-MLCF-ALC Document 100-1 Filed 05/19/14 Page 1 of 1
1158888v1
TABLE OF AUTHORITIES
Page(s)
Cases
Adar v. Smith, 639 F. 3d 146 (5th Cir. 2011).................................................................................23
Angel v. Fairfield, 793 F.2d 737 (5th Cir. 1986) .........................................................................6, 7
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011).........................................................................5
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014),
appeal docketed 14-5003 (10th Cir.) ...................................................................4, 9, 10, 11
Bond v. United States, 131 S.Ct. 2355 (2011) ...............................................................................20
Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir. 1967) .........................................16
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)...................................................................9
Bowers v. Hardwick, 478 U.S. 186 (1986) ..................................................................................5, 6
Brown v. Board of Education, 347 U.S. 483 (1954)......................................................................15
Brown v. Board of Education (Brown II), 349 U.S. 294 (1955)..............................................15, 16
Bush v. Orleans Parish School Board, 308 F.2d 491 (5th Cir. 1962) ...............................16, 17, 20
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).......................................18
City of Cleburne, Texas v. Cleburne Living Center., 473 U.S. 432 (1985) .....................................7
Cooper v. Aaron, 358 U.S. 1 (1958) ........................................................................................15, 16
De Leon v. Perry, No. 13-00982, 2014 U.S. Dist. LEXIS 26236 (W.D. Tx. Feb.
26, 2014) ..............................................................................................................................9
Deboer v. Snyder, No. 12-10285, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich.
March 21, 2014).................................................................................................................11
Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) .......................................................................7
Gay Student Services v. Texas A&M University, 737 F.2d 1317 (5th Cir. 1984)..........................18
Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968
(N.D. Cal. 2012)...................................................................................................................5
Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ...................................9
Case 2:13-cv-05090-MLCF-ALC Document 100-2 Filed 05/19/14 Page 1 of 4
1158888v1
Graham v. Richardson, 403 U.S. 365 (1971) ................................................................................22
Griego v. Oliver, 316 P.3d 865 (N.M. 2013)...................................................................................5
Griswold v. Connecticut, 381 U.S. 479 (1965)................................................................................6
Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 1961).....................16, 17, 19
Heller v. Doe, 509 U.S. 312 (1993) .................................................................................................4
Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987) ...........................................................23
James v. Hertzog, 415 F. App'x 530 (5th Cir. 2011) .......................................................................5
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ..........................................................................5
Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) .....................................5
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)..................................................6, 10, 13
Latta v. Otter, No. 13-00482, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13,
2014) ..........................................................................................................................3, 6, 12
Lawrence v. Texas, 539 U.S. 558 (2003).....................................................................5, 6, 7, 13, 18
Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971).....................................16
Loving v Virginia, 388 U.S. 1 (1967).....................................................................................3, 6, 21
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..............................................................................................6
In re Marriage Cases, 183 P.3d 384 (Cal. 2008).............................................................................5
Massachusetts v. United States Department of Health and Human Services, 682
F.3d 1 (1st Cir. 2012).......................................................................................................7, 8
Meyer v. Nebraska, 262 U.S. 390 (1923) ........................................................................................6
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ..............................................12, 14
Pederson v. Office of Personnel Management, 881 F. Supp. 2d 294 (D. Conn.
2012) ....................................................................................................................................5
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).........................................5, 8, 12
Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp 833 (E.D.
La. 1967) ......................................................................................................................16, 18
Romer v. Evans, 517 U.S. 620 (1996)..............................................................................................5
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1158888v1
Saenz v. Roe, 526 U.S. 489 (1999) ................................................................................................22
Schick v. United States, 195 U.S. 65 (1904) ..................................................................................22
Secsys, LLC v. Vigil, 666 F.3d 678 (10th Cir. 2012) .......................................................................4
Shapiro v. Thompson, 394 U.S. 618 (1969)...................................................................................22
Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................................................................................17
Singleton v. Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir.
1965) ..................................................................................................................................16
Singleton v. Jackson Municipal Separate School District, 355 F.2d 865 (5th Cir.
1966) ..................................................................................................................................16
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).....................................................12
SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) ....................3, 5
Townsend v. Swank, 404 U.S. 282 (1971) .....................................................................................22
Turner v. Safley, 482 U.S. 78 (1987) .................................................................................12, 13, 21
United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir.
1966) ................................................................................................................16, 17, 19, 20
United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963)........................................................4
United States v. Then, 56 F.3d 464 (2d Cir. 1995) ..........................................................................8
Windsor v. United States, 133 S. Ct. 2675 (2013) ................................................................. passim
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff'd 133 S. Ct. 2675
(2013) ..................................................................................................................................5
Zablocki v. Redhail, 434 U.S. 374 (1978)......................................................................................21
Statutes
1 U.S.C. 7 (Defense of Marriage Act Section 3) ............................................................3, 4, 7, 21
28 U.S.C. 1738C (Defense of Marriage Act Section 2)........................................................22, 23
28 U.S.C. 2403............................................................................................................................23
Louisiana's Code Noir......................................................................................................................4
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Louisiana Children's Code article 1221.........................................................................................10
Louisiana Civil Code article 98 .....................................................................................................13
Louisiana Civil Code article 195 ...................................................................................................13
Louisiana Civil Code article 3520(B) .................................................................................... passim
Louisiana Revised Statutes 14:41...............................................................................................13
Constitutional Provisions
U.S. Const. Art. IV, 1............................................................................................................22, 23
U.S. Const. Art. VI.........................................................................................................................19
U.S. Const. amend. I ......................................................................................................................18
U.S. Const. amend. V...............................................................................................................21, 23
U.S. Const. amend. XIV, 1 ................................................................................................. passim
La. Const. Art XII, 15 ......................................................................................................... passim
Other Authorities
Emily Lane, Louisiana House Kills Bill Adding LGBT People to Housing Non-
discrimination Law, NOLA.com, April 28, 2014..............................................................17
Michelle Millhollon, Louisiana House Rejects Repeal of Unenforceable Law, The
Advocate, April 22, 2014...................................................................................................18
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Exhibit 1
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Exhibit 1
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Exhibit 1
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Exhibit 2
Case 2:13-cv-05090-MLCF-ALC Document 100-4 Filed 05/19/14 Page 1 of 2
Exhibit 2
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JONATHAN P. ROBICHEAUX, et al.,
Plaintiffs
v.
JAMES D. CALDWELL, et, al.,
Defendants
*
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*
*
*
*
*
*
*
*
*
*
CIVIL ACTION
NO. 13-5090 C/W 14-97 &14-327
SECTION F(5)
JUDGE MARTIN L.C. FELDMAN
MAGISTRATE MICHAEL NORTH
REF: ALL CASES
*************************************** *
PLAINTIFFS' RESPONSE TO DEFENDANTS' STATEMENT OF
UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs respectfully submit this response to the Statement of Undisputed
Material Facts filed by Defendants Thomas Barfield, Secretary of the Louisiana Department of
Revenue, Kathy Kliebert, Secretary of Louisiana Department of Health and Hospitals, and Devin
George, Louisiana State Registrar. Rec. Doc. 84-3.
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted. However, Plaintiffs note that while Defendants' use of the word
"purported" in an accurate recitation of the Louisiana Civil Code articles, there is nothing
"purported" about their marriages. Plaintiffs legally wed under the laws of the jurisdictions
where they obtained licenses and celebrated their nuptials. Louisiana's characterization of their
marriages as "purported" marriages exemplifies its efforts to demean and humiliate same-sex
couples.
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6. Admitted. Plaintiffs incorporate their response to Defendants' Statement of Fact
No. 5.
7. Denied as written. Louisiana also permits single persons, over the age of 18, to
adopt. La. Child. Code art. 1221 ("a single person, eighteen years or older, or a married couple
jointly may petition to privately adopt a child").
8. Denied.
9. Denied as written. Plaintiffs have no independent knowledge of Tim Barfield's
understanding of Louisiana law.
10. Denied as written. Plaintiffs have no independent knowledge of Kathy Kliebert's
understanding of Louisiana law.
11. Denied as written. Plaintiffs have no independent knowledge of Devin Georges's
understanding of Louisiana law.
12. Denied as written. California's ban on same-sex marriage was overturned by
federal judicial decision. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010),
aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom.
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Further, since April 17, 2014, a federal district
court in Idaho (Latta v. C.L. Butch Otter, No. 1:13-00482 (D. Idaho May 13, 2014)) and a state
circuit court in Arkansas (Wright v. Arkansas, No. 60CV-13-2662 (Pulaski Cnty. Cir. Ct., Ark.
May 9, 2014)) have overturned those states' bans on same-sex marriage. Both decisions are on
appeal. Today, May 19, 2014, the United States District Court for the District of Oregon struck
down that state's same-sex marriage ban. No. 6:13-cv-01834-MC (D. Or. May 19, 2014).
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13. Denied as written. See Response to 12.
Dated: May 19, 2014 Respectfully submitted,
/s/ J. Dalton Courson
J. Dalton Courson, 28542, T.A.
dcourson@stonepigman.com
John M. Landis, 7958
jlandis@stonepigman.com
Lesli D. Harris, 28070
lharris@stonepigman.com
Brooke C. Tigchelaar, 32029
btigchelaar@stonepigman.com
Maurine M. Wall, 34139
mwall@stonepigman.com
STONE PIGMAN WALTHER
WITTMANN L.L.C.
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504) 581-3200
Attorneys for Forum for Equality Louisiana,
Inc., Jacqueline M. Brettner, M. Lauren
Brettner, Nicholas J. Van Sickels, Andrew S.
Bond, Henry Lambert, R. Carey Bond, L.
Havard Scott, III, and Sergio March Prieto
s/ Richard G. Perque
Richard G. Perque, 30669
richard@perquelaw.com
LESLIE A. BONIN, LLC &
RICHARD G. PERQUE, LLC
700 Camp Street
New Orleans, Louisiana 70130
Phone: 504-524-3306
Fax: 504-529-4179
Attorney for Jonathan P. Robicheaux, Derek
Penton, Nadine Blanchard, and Courtney
Blanchard
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C E R T I F I C A T E
I hereby certify that a copy of the preceding Response to Defendants' Statement of
Uncontested Material Facts has been served upon all counsel of record by electronic notice via
the Courts CM/ECF system, this 19th day of May, 2014.
/s/ J. Dalton Courson
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