UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.,

Plaintiffs
v.

JAMES D. CALDWELL, et al.,

Defendants


CIVIL ACTION

NO. 13-5090
SECTION F(5)

JUDGE MARTIN L.C. FELDMAN
MAGISTRATE MICHAEL NORTH

REF: ALL CASES


DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION
Plaintiffs say the United States Constitution requires Louisiana to recognize
same-sex marriage. But, just last year, the Supreme Court said each state’s citizens
may decide that matter for themselves. United States v. Windsor, 133 S. Ct. 2675
(2013). Louisiana’s citizens did so in 2004. The idea that the Constitution overrides
their decision “is demeaning to the democratic process,” Schuette v. BAMN, 134 S.
Ct. 1623, 1637 (2014) (op. of Kennedy, J.), and should be rejected.
Based on the parties’ submissions, there are no genuine disputes as to any
material facts.
1
The parties agree that Louisiana law prevents defendants from
recognizing plaintiffs’ same-sex marriages. LA. CONST. art. XII, § 15; LA. CIV. CODE

1
Defendants do not contest plaintiffs’ standing. See Windsor, 133 S. Ct. at 2685 (plaintiff
“suffered a redressable injury” when made to pay taxes under allegedly invalid law); Adar
v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (Appellees had standing when “denied
a revised birth certificate containing [their] names … as parents”). Plaintiffs’ full faith and
credit claim, however, should be dismissed for failure to state a claim. Def. MSJ 10-11.
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2
art. 3520(B).
2
The Court can decide the constitutional recognition issues as a matter
of law. Therefore, defendants ask the Court to: (1) deny plaintiffs’ partial motion for
summary judgment (Doc. 86), and (2) grant defendants’ partial motion for summary
judgment and motion to dismiss (Doc. 84).
ARGUMENT
I. PLAINTIFFS WOULD NULLIFY LOUISIANA’S AUTHORITY TO DEFINE MARRIAGE.
Plaintiffs’ equal protection and due process claims fail on their own terms. See II,
III, infra. They also fail because they would nullify Louisiana’s “historic and
essential authority to define the marital relation.” Windsor, 133 S. Ct. at 2692. That
authority was of “central relevance,” id., to the Supreme Court’s decision last year
invalidating the federal marriage definition in DOMA section 3. The Court found
section 3 violated the Fifth Amendment rights of same-sex couples lawfully married
under New York law because of section 3’s “unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage.” Id. at 2693.
New York’s decision to “recognize and then to allow same-sex marriages” was,
Windsor underscored, “without doubt a proper exercise of its sovereign authority
within our federal system.” Id. at 2692. Windsor thus affirms that states act within

2
See Pl. MSJ (Doc. 86-1) 4; Pl. Stmt. (Doc. 86-4) 2; Def. MSJ (Doc. 84-1) 1-2; Def. Stmt.
(Doc. 84-3) 1-3. Defendants disagree, however, with some of plaintiffs’ characterizations of
Louisiana law. For instance, it is incorrect to say that Louisiana Revenue Information
Bulletin No. 13-024 “will not follow” IRS Revenue Ruling 2013-17, Doc. 86-4 ¶9, since the
IRS ruling applies only to the federal government. Doc. 84-4 (Barfield aff.) ¶¶10, 12. It is
also incorrect to say that the Louisiana bulletin and tax forms are “contrary to La. R.S.
47:294,” Doc. 86-4 ¶12, since the statute must be construed in light of the Louisiana
Constitution. Doc. 84-4 (Barfield aff.) ¶¶7-12. But these are legal, not factual
disagreements, and they do not prevent the Court from deciding the constitutional issues as
a matter of law.
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3
their authority when they democratically decide whether to recognize same-sex
marriage. See, e.g., id. at 2692-93 (observing “[t]he dynamics of state government in
the federal system are to allow the formation of consensus” respecting a “far-
reaching” matter like same-sex marriage). In contravention of Windsor, plaintiffs
would constitutionalize the issue and nullify Louisiana’s authority to decide it.
Plaintiffs’ claims should fail for that reason alone. See Def. MSJ (Doc. 84-1) 3-7.
3

Last month, the Supreme Court reinforced Windsor’s respect for state authority
in Schuette, which rejected an equal protection challenge to a Michigan
constitutional amendment forbidding affirmative action in public universities. The
Court found that “Michigan voters [had] exercised their privilege to enact [the
amendment] as a basic exercise of their democratic power.” 134 S. Ct. at 1636 (op. of
Kennedy, J.). Recognizing the amendment reflected “the national dialogue
regarding the wisdom and practicality of [affirmative action],” Schuette held that
“courts may not disempower the voters from choosing which path to follow.” Id. at
1631, 1635. To deem affirmative action too “sensitive,” “complex,” or “delicate” for
voters would be “an unprecedented restriction on the exercise of a fundamental
right held not just by one person but by all in common.” Id. at 1637. “It is
demeaning to the democratic process,” the Court said, “to presume that the voters
are not capable of deciding an issue of this sensitivity on decent and rational

3
Their claims also fail in light of the Faith and Credit Clause, which does not require a
state to recognize out-of-state marriages. Def. MSJ 7-10; Baker v. Gen. Motors Corp., 522
U.S. 222, 232-33 (1998) (full faith and credit “does not compel a state to substitute the
statutes of other states for its own statutes dealing with a subject matter concerning which
it is competent to legislate”) (citation omitted). Congress confirmed that principle by
enacting DOMA section 2. Def. MSJ 9-10 (discussing 28 U.S.C. § 1738C).
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grounds,” and even if debates like these “may shade into rancor … that does not
justify removing [them] from the voters’ reach.” Id. at 1637, 1638.
Schuette speaks directly to the issue of state authority here. As with affirmative
action, there is an ongoing “national dialogue regarding … [same-sex marriage],”
and “courts may not disempower the voters from choosing which path to follow.” Id.
at 1631, 1635. As with affirmative action, it would be “demeaning to the democratic
process to presume … voters are not capable of deciding an issue of this sensitivity
on decent and rational grounds.” Id. at 1637. Indeed, it is the responsibility of
voters—not the courts—to decide the issue, because “[f]reedom embraces the right,
indeed the duty, to engage in a rational, civic discourse in order to determine how
best to form a consensus to shape the destiny of the Nation and its people.” Id; cf.
Windsor, 133 S. Ct. at 2692 (“In acting first to recognize and then to allow same sex
marriages, New York was responding ‘to the initiative of those who [sought] a voice
in shaping the destiny of their own times.’”) (quoting Bond v. United States, 131 S.
Ct. 2355, 2359 (2011)). Schuette thus reinforces Windsor’s point that a state’s
decision to recognize same-sex marriage, or not to, is “without doubt a proper
exercise of its sovereign authority within our federal system.” 133 S. Ct. at 2692.
Louisiana’s voters spoke to the issue in 2004, as New York’s voters did in 2011.
With respect to the validity of that sovereign decision, Windsor and Schuette speak
in unison: “There is no authority in the Constitution of the United States or in [the
Supreme] Court’s precedents for the Judiciary to set aside [the] laws that commit
this policy determination to the voters.” Schuette, 134 S. Ct. at 1638.
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While noting Windsor’s “concern” for “the traditional State prerogative to define
marriage within its borders,” plaintiffs assert that, at bottom, “Windsor was an
equal-protection and due-process case, not a federalism case.” Pl. MSJ 24. This
radically oversimplifies Windsor, in which federalism and individual rights worked
hand-in-glove. Windsor ruled DOMA section 3 was a “discrimination[ ] of an
unusual character” precisely because it was an “unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage.” 133 S. Ct. at
2693. To be sure, the Court did not ground its decision solely in federalism, because
it recognized a “limited” federal authority over marriage. See id. at 2690 (noting
“discrete” legislative examples that “establish the constitutionality of limited federal
laws that regulate the meaning of marriage” for federal purposes). But that does not
change the fact that Windsor’s holding turned on section 3’s broad usurpation of
“the State’s power in defining the marital relation.” Id. at 2692. That power, which
the Court spent nine paragraphs discussing, was not “unnecessary” to the decision.
Pl MSJ 24. To the contrary, the Court said that, “[i]n order to assess the validity of
[section 3] … it is necessary to discuss the extent of the state power and authority
over marriage as a matter of history and tradition,” 133 S. Ct. at 2691, and
concluded that “[t]he State’s power in defining the marital relation is of central
relevance in this case,” id. at 2692 (emphases added).
Unable to erase Windsor’s obvious grounding in federalism, plaintiffs instead
raise Loving v. Virginia, 388 U.S. 1 (1967), arguing that Virginia “advanced a
federalism argument” in that case too. Pl. MSJ (Doc. 86-1) 24. That is a smoke-
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screen. In Loving, Virginia vainly attempted to use federalism to justify “invidious
racial discrimination” that violated the “clear and central purpose of the Fourteenth
Amendment” and triggered strict scrutiny. Loving, 388 U.S. at 11, 10. This case, by
contrast, involves a novel right which no state had even recognized ten years ago
and which 34 states do not recognize today, and a classification which triggers only
rational basis review. See II.A, infra. The fact that the Loving defendants invoked
federalism to justify white supremacy laws has nothing to do with Louisiana’s
federalism argument in this case. One might as well say that the fact that the
plaintiffs in Dred Scott v. Sandford invoked due process to justify slavery should
count against plaintiffs’ due process arguments here.
4
That argument would be just
as baseless as plaintiffs’ Loving argument.
II. LOUISIANA’S MARRIAGE LAWS SATISFY THE EQUAL PROTECTION CLAUSE.
A. Sexual orientation does not trigger heightened scrutiny.
Plaintiffs spend much of their argument urging the Court to apply heightened
scrutiny. Pl. MSJ 10-16. They rely on Windsor and, alternatively, on the traditional
suspect-class factors. But binding precedent subjects Louisiana’s marriage laws
only to rational basis review, which they satisfy. See Def. MSJ 12-20.
1. Windsor reaffirms binding precedent that applies rational
basis review to sexual-orientation classifications.
As plaintiffs concede, “[t]he Fifth Circuit has applied the lowest level of equal

4
See Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) (reasoning that “an act of Congress
which deprives a citizen of the United States of his liberty or property, merely because he
came himself or brought his property into a particular Territory of the United States, …
could hardly be dignified with the name of due process of law”); cf. id. at 626 (Curtis, J.,
dissenting) (“Nor, in my judgment, will the position, that a prohibition to bring slaves into a
Territory deprives any one of his property without due process of law, bear examination.”).
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protection scrutiny, rational basis, to sexual-orientation discrimination.” Pl. MSJ 11
(citing Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)); see also Def. MSJ 11
n.7 (“[n]ine other circuits agree”). Johnson remains good law: it followed the
Supreme Court’s decision in Romer v. Evans, which applied rational basis review to
a sexual-orientation classification in the Colorado Constitution. See Romer, 517 U.S.
620, 633 (1996) (asking whether Amendment 2 “bear[s] a rational relationship to an
independent and legitimate legislative end”). Windsor expressly reaffirmed Romer.
See Windsor, 133 S. Ct. at 2692 (relying on and quoting Romer, 517 U.S. at 633).
Unless and until the Supreme Court demands heightened scrutiny for sexual
orientation, lower courts must apply rational basis under Romer. See, e.g.,
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“the
Court of Appeals should follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own decisions”).
Contrary to plaintiffs’ argument, Pl. MSJ 11, Windsor did not mandate
heightened scrutiny when it said that “‘[d]iscriminations of an unusual character
especially suggest careful consideration to determine whether they are obnoxious to
the constitutional provision.’” 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633).
That language from Windsor could not possibly require heightened scrutiny: it is a
quotation from Romer, which applied rational basis.
5
Moreover, plaintiffs
misunderstand Windsor’s point. Section 3 of DOMA was “unusual,” not because it

5
Furthermore, Romer drew this “careful consideration” language from a case invalidating
a state tax under rational basis. See Louisville Gas & Elec. v. Coleman, 277 U.S. 32, 37-38
(1928) (tax must “bear[ ] a reasonable and just relation to the act in respect to which the
classification is proposed”) (quotes omitted).
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8
classified by sexual orientation, but because it “depart[ed] from [the] history and
tradition of [federal] reliance on state law to define marriage.” Windsor, 133 S. Ct.
at 2692. Louisiana’s marriage laws are the opposite of section 3: far from a novel
intrusion into domestic relations law, they instead fall squarely within Louisiana’s
“historic and essential authority to define the marital relation.” Id.
The Court should not follow the Ninth Circuit’s SmithKline decision, which
misinterpreted Windsor. See Pl. MSJ 11-13 (relying on SmithKline Beecham Corp.
v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013)). Windsor found DOMA section 3 was
actually motivated by an “illegitimate purpose,” see 133 S. Ct. at 2696, contravening
a basic requirement of rational basis review. See, e.g., Mahone v. Addicks Utility
Dist., 836 F.2d 921, 933 (5th Cir. 1988) (classification passes rational basis “if …
rationally related to a legitimate state interest”) (citing City of Cleburne v. Cleburne
Living Ctr., Inc., 472 U.S. 432, 439-40 (1985)). This is the same rational basis
review applied in Romer. See 517 U.S. at 632 (explaining, “[i]n the ordinary case, a
law will be sustained if it can be said to advance a legitimate government interest”).
Nowhere does Windsor say it overruled Romer and established a new heightened
scrutiny standard for sexual-orientation, and the Ninth Circuit was mistaken to
read such an intent into Windsor. (Moreover, the Ninth Circuit’s decision is
currently subject to a sua sponte en banc call, see Def. MSJ 11 n.7).
Finally, common-sense says Windsor did not adopt heightened scrutiny.
Heightened scrutiny involves a distinct formula. See, e.g., United States v. Virginia,
518 U.S. 515, 532-33 (1996) (under heightened scrutiny, state bears “demanding”
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burden of showing an “exceedingly persuasive” justification, namely that the
“classification serves ‘important governmental objectives and that the
discriminatory means employed’ are ‘substantially related to the achievement of
those objectives’”) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982)). The Windsor opinion contains no hint of that formula.
2. Louisiana’s marriage laws are not “unusual” but instead follow
longstanding conflicts-of-law rules.
Plaintiffs’ alternative argument for heightened scrutiny under Windsor contends
that Louisiana’s non-recognition of same-sex marriage is an unusual deviation from
its historic practice. They claim that, “[j]ust as” section 3 of DOMA departed from
federal reliance on state marriage law, “so too” do Louisiana’s marriage laws
“depart[ ] from Louisiana history and tradition of upholding the validity of out-of-
state marriages.” Pl. MSJ 11. Plaintiffs misunderstand Louisiana law.
The rule in Louisiana has always been that it will recognize out-of-state
marriages “as a matter of comity,” but this “spirit of comity … does not require
[Louisiana] to recognize a marriage which is contrary to its own public policy.”
Brinson v. Brinson, 96 So.2d 653, 659 (La. 1957) (refusing to recognize fraudulent
common-law marriage from Mississippi); see also, e.g., Bloom v. Willis, 60 So.2d 415,
417 (La. 1952) (recognizing another state’s non-ceremonial marriage “out of comity”)
(citing Succession of Marinoni, 148 So. 888 (La. 1933)). Plaintiffs’ own cases
recognize this long-standing rule,
6
which was codified in Civil Code article 3520.

6
See Pl. MSJ 4-5; see, e.g., Ghassemi v. Ghassemi, 2007-1927, p. 11 n.15 (La. App. 1 Cir.
10/15/08), 998 So.2d 731, 739 n.15 (traditional rule required court to determine “whether
recognizing [the foreign marriage] would violate the public policy of [Louisiana]”); United
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10
See, e.g., Ghassemi, 998 So.2d at 739 n.15 (article 3520 “essentially codified the
previous comity analysis”); cf. Restatement (2d) Conflicts of Laws § 284 cmt. c
(noting rule that “[a] state will not give a particular incident to a foreign marriage
when to do so would be contrary to its strong local policy”).
Consequently, there is nothing “unusual” about Louisiana’s decision to deny
recognition to same-sex marriages on strong public policy grounds. That decision
falls squarely within Louisiana’s longstanding conflicts-of-law approach. Nor is it
unusual that Louisiana addressed the issue recently, and not before: the issue arose
only in the last two decades. See, e.g., Baker v. State, 744 A.2d 864, 868 (Vt. 1999)
(Vermont Constitution requires state “to extend to same-sex couples the common
benefits and protections that flow from marriage under Vermont law”).
7

3. Binding precedent forecloses plaintiffs’ suspect-class argument.
Alternatively, plaintiffs claim that sexual orientation qualifies as a “suspect” or

States ex rel. Modianos v. Tuttle, 12 F.2d 927, 928 (E.D. La. 1925) (noting “well-recognized
exception” to validity of foreign marriages where “the law-making authority has declared
[the marriage] shall not be allowed any validity as a matter of general policy”); Succession
of Caballero v. Executor, 24 La. Ann. 573, 575 (1872) (noting “well settled” rule denying
foreign marriages recognition for “reasons of public policy”). A few Louisiana appellate
courts misstate the rule as one of “full faith and credit,” see, e.g., Fritsche v. Vermilion
Parish Hosp. Serv. Dist. No. 2, 2004-1192, p. 3 (La. App. 3 Cir. 2/2/05), 893 So.2d 935, 937-
38), but the vast weight of authority correctly identifies the rule purely as one of comity.
See, e.g., Chivers v. Couch Motor Lines, Inc., 159 So.2d 544, 549 (La. App. 3 Cir. 1964) (Tate,
J.) (relying on traditional rule in Brinson and Marinoni, supra). In any event, article 3520
plainly codifies the rule as one of comity. See LA. CIV. CODE art. 3520 cmt. b (presumptive
validity of foreign marriage may be defeated by showing applicable law “would invalidate
the marriage for reasons of ‘a strong public policy’”).
7
See also, e.g., In re Opinions of the Justices, 802 N.E.2d 565, 569-72 (Mass. 2004)
(allowing civil unions but not marriage for same-sex couples “violates the equal protection
and due process requirements” of Massachusetts Constitution); and see generally Forum for
Equality PAC v. McKeithen, 2004-2477, pp. 26-28 (La. 1/19/05); 893 So.2d 715, 733-34
(discussing motivation for enacting Louisiana Constitution article XII, § 15).
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“quasi-suspect” class under traditional suspect-class factors. Pl. MSJ 13-15. This
argument, however, is foreclosed by binding precedent—Johnson and Romer—that
sexual-orientation classifications merit rational basis review only. As explained
above, Windsor reaffirmed this precedent. See II.A.1, supra.
Indeed, in Windsor the Supreme Court had ample opportunity to adopt this
suspect-class rationale, and yet did not. For instance, the Second Circuit opinion
under review elaborately analyzed the suspect-class factors and applied heightened
scrutiny. Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012). In the
Supreme Court, the Solicitor General spent nineteen pages making the same
argument. Merits Br. for United States at 16-36, United States v. Windsor, 133 S.
Ct. 2675 (2013) (No. 12-307). Finally, while the case was in the lower courts, the
Attorney General had announced the President’s view that “‘classifications based on
sexual orientation should be subject to a heightened standard of scrutiny,’” leading
the Justice Department to stop defending DOMA. Windsor, 133 S. Ct. at 2683
(quoting Attorney General letter). Despite all this, the Supreme Court did not
analyze the suspect-class factors and adopt heightened scrutiny. Surely, if the Court
had intended to do so—and in the process overrule Romer and reject nine contrary
circuit decisions applying rational basis review—it would have said so.
B. Louisiana’s marriage laws do not discriminate based on sex.
Alternatively, plaintiffs claim Louisiana’s marriage laws trigger heightened
scrutiny because they discriminate based on sex. They argue Louisiana does not
recognize their marriages solely “[b]ecause each [p]laintiff is married to a person of
the same sex, rather than a person of the opposite sex,” Pl. MSJ 15, constituting
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12
sex-based discrimination under equal protection. Plaintiffs are mistaken.
Louisiana’s marriage laws do not engage in sex discrimination because they do
not advantage one sex over the other. See, e.g., Personnel Admin. of Mass. v. Feeney,
442 U.S. 226, 273 (1979) (sex discrimination occurs when laws are “overtly or
covertly designed to prefer males over females”); United States v. Virginia, 518 U.S.
at 532 (the Court has “carefully inspected official action that closes a door or denies
opportunity to women (or to men)”). With respect to marriage, Louisiana treats men
and women exactly the same: it “does not draw any distinctions between same-sex
male couples and same-sex female couples, does not place any disproportionate
burdens on men and women, and does not draw upon stereotypes applicable only to
male or female couples.” Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252,
1286 (N.D. Okla. 2014). It would be a different matter if Louisiana recognized out-
of-state marriages between two men but not two women, or allowed married lesbian
couples to adopt but not married gay couples. See, e.g., Hernandez v. Robles, 855
N.E.2d 1, 10 (N.Y. 2006) (New York’s man-woman definition “does not put men and
women in different classes, and give one class a benefit not given to the other”).
That would be sex discrimination, but that is not what we have here.
Case law shows what actual sex discrimination looks like. Laws discriminate by
sex when they (1) require that “males must be preferred to females” as estate
administrators (Reed v. Reed, 404 U.S. 71, 73 (1971)); (2) make the husband “head
and master” of property owned in community with his wife (Kirchberg v. Feenstra,
450 U.S. 455, 462 (1981)); (3) require parents to support boys until 21, but girls only
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13
until 18 (Stanton v. Stanton, 421 U.S. 7, 9-10 (1975)); (5) bar sale of 3.2% beer to
males under 21, but to females only under 18 (Craig v. Boren, 429 U.S. 190, 191-92
(1976)); (6) allow male service-members to claim wives as “dependents” without
showing actual financial dependence, but require female service-members to
provide proof to claim husbands as “dependents” (Frontiero v. Richardson, 411 U.S.
677, 678 (1973)); (7) exclude males from the sole state-supported nursing school
(Miss. Univ. for Women v. Hogan, 458 U.S. at 719); (8) exclude women from an elite
military training academy (and provided women with an inferior academy) (United
States v. Virginia, 518 U.S. at 547). In light of these instances of real sex
discrimination, “[c]ommon sense dictates” that Louisiana’s man-woman definition of
marriage “has nothing to do with gender-based prejudice or stereotypes, and …
cannot be subject to heightened scrutiny on that basis.” Bishop, 962 F.Supp.2d at
1286; see also, e.g., Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D. Nev. 2012)
(man-woman marriage laws “are not directed toward persons of any particular
gender, nor do they affect people of any particular gender disproportionately such
that a gender-based animus can reasonably be perceived”).
Plaintiffs’ theory is not helped by the argument that the laws in Loving v.
Virginia, 388 U.S. 1, discriminated “equally” against blacks and whites and yet
were treated as race discrimination. See, e.g., Sevcik, 911 F.Supp.2d at 1004-05
(considering and rejecting this argument). There was nothing “equal” about the
anti-miscegenation laws Loving struck down. Those laws, which “arose as an
incident to slavery,” 388 U.S. at 6, imposed a “sham equality that … was in
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14
substance anti-black legislation.” Hernandez, 855 N.E.2d at 11. They were
“measures designed to maintain White Supremacy.” Loving, 388 U.S. at 11; see also
Sevcik, 911 F.Supp.2d at 1005 (“In Loving, the elements of the disability were
different as between Caucasians and non-Caucasians, whereas here, the burden on
men and women is the same.”). Loving thus treated anti-miscegenation laws as
what they were: “invidious racial discrimination.” 388 U.S. at 11; see also Vill. of
Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 265 (1977)
(“Proof of racially discriminatory intent or purpose is required to show a violation of
the Equal Protection Clause.”). But Louisiana’s marriage laws are wholly different.
There is no indication that they have the purpose or effect of disadvantaging males
or females, and therefore under settled law they cannot be considered sex
discrimination under equal protection.
If Louisiana’s marriage laws must be characterized as “classifying” for purposes
of this case, then they classify by sexual preference. See, e.g., Bishop, 962 F.Supp.2d
at 1287 (“[i]nstead of gender-based discrimination … sexual orientation provides the
best descriptor for the class-based distinction being drawn” by a man-woman
definition of marriage); Sevick, 911 F.Supp.2d at 1005 (concluding that “the level of
scrutiny applicable to sexual-orientation-based distinctions applies”).
8
This means
that Louisiana’s laws do not trigger the heightened scrutiny reserved for sex-based
classifications but are instead subject to rational basis review. See II.A.1, supra.

8
The most recent district court decision—while mistaken on many counts, see infra—
correctly concludes that the man-woman marriage definition “does not prefer one gender
over the other” and therefore does not engage in sex discrimination. See Latta v. Otter, __
F.Supp.2d __, 2014 WL 1909999, at *15 (D. Idaho May 13, 2014).
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15
C. Louisiana’s marriage laws satisfy rational basis review.
To prevail under rational basis, plaintiffs must show that Louisiana’s decision to
retain the man-woman definition of marriage in its Constitution is “so unrelated to
the achievement of any combination of legitimate purposes that [the Court] can only
conclude that [Louisiana’s] actions were irrational.” Doe v. Jindal, 851 F.Supp.2d
995, 1005-06 (E.D. La. 2012) (quotes omitted) (first brackets added); see also Def.
MSJ 11-12 (discussing rational basis review). Plaintiffs cannot do so.
First, Louisiana rationally defines civil marriage as a man-woman union
because one of its principal purposes is to link children to an intact family formed
by their biological parents. See Def. MSJ 12-17; see also, e.g., Hernandez, 855
N.E.2d at 21 (Graffeo, J., concurring) (“[A]n orderly society requires some
mechanism for coping with the fact that sexual intercourse … commonly results in
pregnancy and childbirth. The institution of marriage is that mechanism.”). That
purpose is amply displayed in Louisiana family law by a web of legal presumptions
linking marriage, biological parentage, and child protection. See Def. MSJ 13-14;
Wilkinson v. Wilkinson, 323 So.2d 120, 124 (La. 1975) (the “public policy of
Louisiana that every effort must be made to uphold the validity of marriages … is
closely intertwined with the presumption of legitimacy”). Louisiana’s marriage laws
are structured around the biological reality that only opposite-sex couples naturally
procreate and that most children are born from the union of opposite-sex couples.
See, e.g., Hernandez, 855 N.E.2d at 7 (because “it remains true that the vast
majority of children are born as a result of a sexual relationship between a man and
a woman,” a legislature “could find that an important function of marriage is to
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16
create stability and permanence in the relationships that cause children to be
born”). This is not remotely “irrational,” as if Louisiana had limited marriage to
right-handed people or barred it to red-heads. It is a sensible and unsurprising
recognition of biological reality. See, e.g. Nguyen v. I.N.S., 533 U.S. 53, 73 (2001)
(“To fail to acknowledge even our most basic biological differences … risks making
the guarantee of equal protection superficial, and so disserving it.”).
9

Louisiana’s purpose in retaining the man-woman definition of marriage does not
depend on speculation that “heterosexual couples make decisions regarding
marriage and procreation based on the status or recognition of same-sex
marriages.” Pl. MSJ 22-23. Its policy depends on a far simpler rationale. Only man-
woman couples naturally procreate and the overwhelming majority of children are
born from man-woman unions; therefore, Louisiana “could choose to offer an
inducement—in the form of marriage and its attendant benefits—to [man-woman]
couples who make a solemn, long-term commitment to each other.” Hernandez, 855
N.E.2d at 7.
10
To be sure, Louisiana could also choose to extend those benefits to

9
Louisiana’s marriage laws cannot be reduced to “[m]oral condemnation of same-sex
couples and relationships.” Pl. MSJ 22; see, e.g., Lawrence v. Texas, 539 U.S. 558, 585 (2003)
(O’Connor, J., concurring) (“Unlike the moral disapproval of same-sex relations … other
reasons exist to promote the institution of marriage beyond mere moral disapproval of the
excluded group.”). Nor can the intentions of more than 600,000 voters who approved the
2004 amendment be reduced to the bizarre comments of one legislator. Pl. MSJ 22 n.16; see
Forum for Equality PAC, 893 So.2d at 718, 733-37 (noting there were 619,908 votes for the
amendment, and discussing house and senate committee hearings).
10
Louisiana need not justify its policy by evidence that intact biological families
“promot[e] an optimal environment for child-raising.” Pl. MSJ 23. Louisiana’s citizens can
seek to promote the stability of intact biological families without being second-guessed by
“courtroom factfinding.” Heller v. Doe, 509 U.S. 312, 320 (1993) (quotes omitted). Nor must
Louisiana’s citizens provide an evidentiary basis for their reservations about altering the
definition of marriage. Cf. Schuette, 134 S. Ct. at 138 (voters may forbid affirmative action
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17
same-sex couples, as New York and 15 other states have done, if its citizens at some
point reach consensus about an “evolving understanding of the meaning of
equality.” Windsor, 133 S. Ct. at 2693. But merely because Louisiana—and 33 other
states—take a different view at present does not make them irrational. Such a
drastic conclusion would be “inconsistent with the underlying premises of a
responsible, functioning democracy.” Schuette, 134 S. Ct. at 1637.
Second, Louisiana placed its marriage definition in the state constitution to
ensure that a change as profound as altering the definition of marriage would occur
only through wide social consensus. Def. MSJ 17-20. Windsor itself recognized that
states act rationally—indeed, wisely—in doing so. With respect to a “far-reaching
matter” like same-sex marriage, Windsor emphasized that “[t]he dynamics of state
government in the federal system are to allow the formation of consensus.” 133 S.
Ct. at 2692-93; see also id. at 2689 (noting that New York adopted same-sex
marriage only “[a]fter a statewide deliberative process that enable its citizens to
discuss and weigh arguments for and against same-sex marriage”). Windsor did not
establish a one-way ratchet that allows New York citizens to reach one consensus
on same-sex marriage, but denies Louisiana citizens the right to reach another.
Both states’ decisions were grounded on the “community’s considered perspective on
the historical roots of the institution of marriage,” and both were “without doubt a
proper exercise of … sovereign authority within our federal system.” Id. To
invalidate the decision of Louisiana’s citizens on such a profound matter would be

based on fear that it would “become itself a source of … resentments and hostilities,” and
“[w]hether those adverse results would follow is, and should be, the subject of debate”).
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18
“demeaning to the democratic process.” Schuette, 134 S. Ct. at 1637.
***
In sum, Louisiana’s marriage laws trigger rational basis review, not heightened
scrutiny, under binding precedent that Windsor reaffirmed. Because Louisiana’s
laws rationally further important state interests in (1) linking children with intact
families formed by their biological parents, and (2) ensuring that a profound
alteration to the definition of marriage occurs only through wide social consensus,
the Court should reject plaintiffs’ equal protection claims.
III. LOUISIANA’S MARRIAGE LAWS SATISFY THE DUE PROCESS CLAUSE.
Plaintiffs also claim that Louisiana’s marriage laws burden their “fundamental
right to marry,” Pl. MSJ 17-19, and their “fundamental right to parental authority,”
id. at 20. These claims founder on the settled rule that “[t]o establish a substantive
due process violation, a plaintiff must first both carefully describe that right and
establish it as ‘deeply rooted in this Nation’s history and tradition.’” Malagon de
Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997)) (quotes omitted); see Def. MSJ 20-24.
11

First, a “careful description” of the asserted right must include the fact that,

11
Plaintiffs’ claimed “right to parental authority” is subject to the same Glucksberg
standard as the claimed “right to marry.” See Troxel v. Granville, 530 U.S. 57, 65 (2000)
(relying on Glucksberg). Plaintiffs also assert a “right to remain married,” Pl. MSJ 19, but
the only case they cite purporting to recognize such a right is the recent decision in
Obergefell v. Wymyslo, 962 F.Supp.2d 968, 979 (S.D. Ohio 2013). Obergefell incorrectly
created this right from Lawrence v. Texas, which expressly disclaimed it was saying
anything about “whether the government must give formal recognition to any relationship
that homosexual persons may enter.” 539 U.S. at 578. Furthermore, the “right to remain
married,” as asserted here, appears identical to a right to interstate recognition of
marriage, which finds no support in the Constitution. See Def. MSJ 7-11.
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19
here, it involves the right to marry someone of the same sex. See Glucksberg, 521
U.S. at 722 (noting the Court’s “tradition of carefully formulating the interest at
stake in substantive-due-process cases”).
12
Plaintiffs cannot simply invoke a
generalized “right to marry”; they must be “more precise.” See id. (rejecting “right to
die” as insufficiently “precise”, and instead describing asserted right as the “right to
commit suicide which itself includes assistance in doing so”).
13
Relying on a generic
“right to marry” proves too much: no one would say, for instance, that a state
burdens the “right to marry” by not allowing someone to wed her first cousin. In
that hypothetical case, a “careful description” of the asserted right would include
the consanguinity of the proposed spouse. Just so here: the right plaintiffs seek is
not simply to “marry” but to marry someone of the same sex. The right has not been
“carefully” described if the description omits that essential feature. Windsor
confirmed this: “marriage between a man and a woman no doubt had been thought
of by most people as essential to the very definition of that term and to its role and
function throughout the history of civilization.” 133 S. Ct. at 2689 (emphasis added).
Second, Windsor also forecloses the argument that a right to same-sex marriage
is “objectively, deeply rooted” in our traditions. Windsor observed that New York’s

12
See also, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (before
“break[ing] new ground” in substantive due process, Court must “focus on the allegations in
the complaint to determine how petitioner describes the constitutional right at stake”)
13
See also, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (rejecting “freedom from physical
restraint,” and describing right as “the alleged right of a child who has no available parent,
close relative, or legal guardian, and for whom the government is responsible, to be placed
in the custody of a willing-and-able private custodian rather than of a government-operated
or government-selected child-care institution”); Collins, 503 U.S. at 125 (rejecting due
process right to have employers provide employees with a “safe working environment” as
insufficiently similar to cases recognizing due process right to have state “take care of those
who have already been deprived of their liberty”).
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20
recognition and adoption of same-sex marriage involved “a new perspective, a new
insight,” remarking that:
… until recent years, many citizens had not even considered the possibility
that two persons of the same sex might aspire to occupy the same status and
dignity as that of a man and a woman in lawful marriage. For marriage
between a man and a woman no doubt had been thought of by most people as
essential to the very definition of that term and to its role and function
throughout the history of civilization.

133 S. Ct. at 2689. Given that fact, the right to enter into a same-sex marriage
cannot be one “deeply rooted in our Nation’s history and tradition.” Glucksberg, 521
U.S. at 720-21; see also Hernandez, 855 N.E.2d at 9 (“The right to marry someone of
the same sex … is not ‘deeply rooted’; it has not even been asserted until relatively
recent times.”). That does not disparage same-sex couples who wish to marry. It
merely says courts should not place this brand new development “outside the arena
of public debate and legislative action” by decreeing it a “fundamental” right. Id. at
720 (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).
Plaintiffs rely on “right to marry” cases such as Zablocki, Turner, and Loving, Pl.
MSJ 17-18, but those cases do not suggest anything like a right to marry someone of
the same sex. They stand for the proposition that states burden the right to marry
by, for instance: (1) barring marriage to people who shirk child support obligations
(Zablocki v. Redhail, 434 U.S. 374, 385-87 (1978)); (2) barring marriages by
prisoners not serving a life sentence (Turner v. Safely, 482 U.S. 78, 95-98 (1987));
and (3) barring marriage based on invidious racial classifications (Loving, 388 U.S.
at 11). Obviously, the “right to marry” recognized in these cases was shaped by their
context. See, e.g., Collins, 503 U.S. at 125 (in defining substantive due-process
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21
rights, courts must “focus on the allegations in the complaint to determine how
petitioner describes the constitutional right at stake”). But none of those cases
purport to constitutionalize state marriage regulation or disrupt the vast bulk of
domestic relations law. See, e.g., Zablocki, 434 U.S. at 386 (“By reaffirming the
fundamental character of the right to marry, we do not mean to suggest that every
state regulation which relates in any way to the incidents of or prerequisites for
marriage must be subjected to rigorous scrutiny.”).
14
No one argues, for instance,
that these decisions establish a “right to marry” without a ceremony or the “right to
marry” one’s first cousin. States may, and do, differ on these matters. See, e.g.,
Windsor, 133 S. Ct. at 2691-92 (noting that “most States permit first cousins to
marry, but a handful … prohibit the practice”) (citations omitted).
In the same way, none of these cases purport to establish a “right to marry”
someone of the same sex. Loving, in particular, could not have done so: a mere five
years after Loving, the Supreme Court summarily rejected “for want of a
substantial federal question” the claim that the Constitution requires a state to
recognize same-sex marriage. Baker v. Nelson, 409 U.S. 810 (1972). But if any of
these cases established a right to same-sex marriage, surely Windsor would have
said so. To the contrary, Windsor said that “marriage between a man and a woman
no doubt had been thought of by most people as essential to the very definition of

14
In light of that disclaimer, it is incorrect to say that cases like Zablocki “recognized an
unembellished right to marry.” Latta, 2014 WL 1909999, at *12. While the right recognized
by the Supreme Court’s cases “transcends one’s race, confinement to prison, or ability to
support children,” id. at *13, no case says the right “transcends” the sex of the proposed
spouse. Windsor confirmed the opposite by observing that the man-woman aspect of
marriage was historically considered “as essential to the very definition of … [marriage].”
133 S. Ct. at 2689.
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22
that term and to its role and function throughout the history of civilization.” 133 S.
Ct. at 2689. The “right to marry” cases plaintiffs cite have said similar things about
marriage. Zablocki, for example, said the right involves the “decision to marry and
raise a child in a traditional family setting” and “the right to procreate.” 434 U.S. at
386.
15
These statements in Windsor, Zablocki, and other cases do not mean that the
Constitution contains its own definition of marriage. But they foreclose the notion—
necessary to plaintiffs’ due process claims—that a right to same-sex marriage is
“deeply rooted in our Nation’s history and tradition.” Glucksberg, 521 U.S. at 720.
Finally, plaintiffs rely on right to privacy cases. Pl. MSJ 17-18 (citing Planned
Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992); Griswold v. Connecticut, 381
U.S. 479, 486 (1965); Lawrence v. Texas, 539 U.S. 558, 578 (2003)). Plaintiffs over-
read these decisions, which only protect certain private choices about sex and
procreation. See, e.g., Lawrence, 539 U.S. at 565 (describing Griswold as addressing
“the right to make certain decisions regarding sexual conduct”). But they do not
establish a right to compel official recognition of relationships formed as a result of
those private choices.
16
Lawrence—the case closest to plaintiffs’ claims—explicitly
noted this limitation. While recognizing that a state could not punish consensual

15
See also, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)
(“[m]arriage and procreation are fundamental to the very existence and survival of the
race”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (due process includes right “to marry,
establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888)
(marriage “is an institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without which there would
be neither civilization nor progress”).
16
See, e.g., Hernandez, 855 N.E.2d at 10 (“Plaintiffs here do not, as the petitioners in
Lawrence did, seek protection against state intrusion on intimate, private activity. They
seek from the courts access to a state-conferred benefit that the Legislature has rationally
limited to opposite-sex couples.”).
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23
same-sex relations, Lawrence underscored that it “d[id] not involve whether the
government must give formal recognition to any relationship that homosexual
persons may enter.” 539 U.S. at 578; see also id. at 567 (observing that the Texas
law at issue “seek[s] to control a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals) (emphasis added). Plaintiffs rely heavily on Lawrence,
Pl. MSJ 18, but Lawrence disclaims the reading plaintiffs would impose on it—
namely, that the sexual privacy it protects compels recognition of same-sex
marriage. Lawrence does no such thing.
17

CONCLUSION
The Court should (1) deny plaintiffs’ motion for partial summary judgment (Doc.
86), and (2) grant defendants’ motion for partial summary judgment and motion to
dismiss (Doc. 84).
Respectfully submitted,
s/ S. Kyle Duncan
S. Kyle Duncan, 25038, T.A.
Special Assistant Attorney General
Louisiana Department of Justice
P.O. Box 94005
Baton Rouge, LA 70804
Phone: (202) 714-9492
Fax: (225) 326-6098
kduncan@duncanpllc.com
Attorney for Defendants

17
A district court recently announced that “Lawrence unequivocally cements marriage as
among the constitutionally protected liberties shared by homosexual and heterosexual
persons alike.” Latta, 2014 WL 1909999, at *13. That is wrong. Lawrence “unequivocally”
disclaimed that it was saying anything about “whether the government must give formal
recognition to any relationship that homosexual persons may enter.” 539 U.S. at 578.
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24

CERTIFICATE OF SERVICE
I hereby certify that on May 20, 2014, I electronically filed the foregoing with the
Clerk of Court by using the CM/ECF system, which will be electronically served on
all counsel of record.

/s S. Kyle Duncan
S. Kyle Duncan
Attorney for Defendants
Case 2:13-cv-05090-MLCF-ALC Document 102 Filed 05/20/14 Page 24 of 24
TABLE OF CONTENTS

Introduction .................................................................................................................... 1

Argument ........................................................................................................................ 2

I. Plaintiffs would nullify Louisiana’s authority to define marriage. ................... 2
II. Louisiana’s marriage laws satisfy the Equal Protection Clause. ...................... 6

A. Sexual orientation does not trigger heightened scrutiny. ............................ 6

1. Windsor reaffirms binding precedent that applies rational basis
review to sexual-orientation classifications. ............................................ 6

2. Louisiana’s marriage laws are not “unusual” but instead follow
longstanding conflicts-of-law rules. .......................................................... 9

3. Binding precedent forecloses plaintiffs’ suspect-class argument. ........ 10

B. Louisiana’s marriage laws do not discriminate based on sex. ................... 11

C. Louisiana’s marriage laws satisfy rational basis review. ........................... 15

III. Louisiana’s marriage laws satisfy the Due Process Clause. ......................... 18

Conclusion ..................................................................................................................... 23

Certificate of Service ..................................................................................................... 24






Case 2:13-cv-05090-MLCF-ALC Document 102-1 Filed 05/20/14 Page 1 of 6
2
TABLE OF AUTHORITIES

Cases
Adar v. Smith,
639 F.3d 146 (5th Cir. 2011) ..................................................................................... 1

Baker v. Gen. Motors Corp.,
522 U.S. 222 (1998) ................................................................................................... 3

Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................................. 21

Baker v. State,
744 A.2d 864 (Vt. 1999) ........................................................................................... 10

Bishop v. United States ex rel. Holder,
962 F.Supp.2d 1252 (N.D. Okla. 2014) ............................................................. 12, 13

Bloom v. Willis,
60 So.2d 415 (La. 1952) ............................................................................................. 9

Bond v. United States,
131 S. Ct. 2355 (2011) ............................................................................................... 4

Brinson v. Brinson,
96 So.2d 653 (La. 1957) ............................................................................................. 9

Chivers v. Couch Motor Lines, Inc.,
159 So.2d 544 (La. App. 3 Cir. 1964) ...................................................................... 10

City of Cleburne v. Cleburne Living Ctr., Inc.,
472 U.S. 432 (1985) ................................................................................................... 8

Collins v. City of Harker Heights,
503 U.S. 115 (1992) ........................................................................................... 19, 20

Craig v. Boren,
429 U.S. 190 (1976) ................................................................................................. 13

Doe v. Jindal,
851 F.Supp.2d 995 (E.D. La. 2012) ......................................................................... 15

Dred Scott v. Sandford,
60 U.S. 393 (1856) ..................................................................................................... 6
Case 2:13-cv-05090-MLCF-ALC Document 102-1 Filed 05/20/14 Page 2 of 6
3

Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2,
2004-1192 (La. App. 3 Cir. 2/2/05); 893 So.2d 935 ................................................. 10

Frontiero v. Richardson,
411 U.S. 677 (1973) ................................................................................................. 13

Forum for Equality PAC v. McKeithen,
2004-2477 (La. 1/19/05); 893 So.2d 715 ............................................................ 10, 16

Ghassemi v. Ghassemi,
2007-1927 (La. App. 1 Cir. 10/15/08); 998 So.2d 731 ......................................... 9, 10

Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................................. 22

Heller v. Doe,
509 U.S. 312 (1993) ................................................................................................. 16

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ................................................................................ passim

In re Opinions of the Justices,
802 N.E.2d 565 (Mass. 2004) .................................................................................. 10

Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ............................................................................... 7, 11

Kirchberg v. Feenstra,
450 U.S. 455 (1981) ................................................................................................. 12

Latta v. Otter,
__ F.Supp.2d __, 2014 WL 1909999 (D. Idaho May 13, 2014) ................... 14, 21, 23

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................... 16, 18, 22, 23

Louisville Gas & Elec. v. Coleman,
277 U.S. 32 (1928) ..................................................................................................... 7

Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................ 5-6, 13, 14, 20, 21

Case 2:13-cv-05090-MLCF-ALC Document 102-1 Filed 05/20/14 Page 3 of 6
4
Mahone v. Addicks Utility Dist.,
836 F.2d 921 (5th Cir. 1988) ..................................................................................... 8

Maynard v. Hill,
125 U.S. 190 (1888) ................................................................................................. 22

Meyer v. Nebraska,
262 U.S. 390 (1923) ................................................................................................. 22

Malagon de Fuentes v. Gonzales,
462 F.3d 498 (5th Cir. 2006) ................................................................................... 18

Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................................................................. 9, 13

Moore v. East Cleveland,
431 U.S. 494 (1977) ................................................................................................. 20

Nguyen v. I.N.S.,
533 U.S. 53 (2001) ................................................................................................... 16

Obergefell v. Wymyslo,
962 F.Supp.2d 968 (S.D. Ohio 2013) ...................................................................... 18

Personnel Admin. of Mass. v. Feeney,
442 U.S. 226 (1979) ................................................................................................. 12

Planned Parenthood of Pa. v. Casey,
505 U.S. 833 (1992) ................................................................................................. 22

Reed v. Reed,
404 U.S. 71 (1971) ................................................................................................... 12

Reno v. Flores,
507 U.S. 292 (1993) ................................................................................................. 19

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,
490 U.S. 477 (1989) ................................................................................................... 7

Romer v. Evans,
517 U.S. 620 (1996) ......................................................................................... 7, 8, 11

Schuette v. BAMN,
134 S. Ct. 1623 (2014) ...................................................................... 1, 3, 4, 16-17, 18
Case 2:13-cv-05090-MLCF-ALC Document 102-1 Filed 05/20/14 Page 4 of 6
5

Sevcik v. Sandoval,
911 F.Supp.2d 996 (D. Nev. 2012) .................................................................... 13, 14

Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ................................................................................................. 22

Stanton v. Stanton,
421 U.S. 7 (1975) .................................................................................................... 13

SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2013) ..................................................................................... 8

Succession of Caballero v. Executor,
24 La. Ann. 573 (1872) ............................................................................................ 10

Succession of Marinoni,
148 So. 888 (La. 1933) ............................................................................................... 9

Troxel v. Granville,
530 U.S. 57 (2000) ................................................................................................... 18

Turner v. Safely,
482 U.S. 78 (1987) ................................................................................................... 20

United States ex rel. Modianos v. Tuttle,
12 F.2d 927 (E.D. La. 1925) ................................................................................. 9-10

United States v. Virginia,
518 U.S. 515 (1996) ....................................................................................... 8, 12, 13

United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... passim

Vill. of Arlington Heights v. Metropolitan Housing Devel. Corp.,
429 U.S. 252 (1977) ................................................................................................. 14

Washington v. Glucksberg,
521 U.S. 702 (1997) ..................................................................................... 18, 19, 22

Wilkinson v. Wilkinson,
323 So.2d 120 (La. 1975) ......................................................................................... 15

Case 2:13-cv-05090-MLCF-ALC Document 102-1 Filed 05/20/14 Page 5 of 6
6
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ..................................................................................... 11

Zablocki v. Redhail,
434 U.S. 374 (1978) ..................................................................................... 20, 21, 22

Statutes
Defense of Marriage Act,
110 Stat. 2419 .................................................................................................. passim

28 U.S.C. §1738C ............................................................................................................ 3

LA. CIV. CODE art. 3520 ..................................................................................... 1-2, 9, 10

LA. R.S. 47:294 ................................................................................................................ 2

Constitutional Provisions
U.S. CONST. art. IV .......................................................................................................... 3

U.S. CONST. amend. V ..................................................................................................... 2

U.S. CONST. amend. XIV ....................................................................................... passim

LA. CONST. art. XII, § 15 ................................................................................................. 1

Other Authorities
IRS Revenue Ruling 2013-17 ......................................................................................... 2

Louisiana Revenue Information Bulletin No. 13-024 ................................................... 2

Merits Brief for United States in United States v. Windsor (No. 12-307) ................. 11

Restatement (2d) Conflicts of Laws § 284 ................................................................... 10



Case 2:13-cv-05090-MLCF-ALC Document 102-1 Filed 05/20/14 Page 6 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.,

Plaintiffs
v.

JAMES D. CALDWELL, et al.,

Defendants


CIVIL ACTION

NO. 13-5090
SECTION F(5)

JUDGE MARTIN L.C. FELDMAN
MAGISTRATE MICHAEL NORTH

REF: ALL CASES


DEFENDANTS’ RESPONSE TO PLAINTIFFS’ STATEMENT OF
UNDISPUTED MATERIAL FACTS

Defendants submit this response to plaintiffs’ statement of undisputed material
facts (Doc. 86-4):
1. Admitted.
2. Admitted as to all plaintiff couples (2a-2f).
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted to the extent that Louisiana Revenue Information Bulletin No.
13-024 states that, pursuant to Louisiana Constitution article XII, § 15,
the Louisiana Department of Revenue shall not recognize same-sex
Case 2:13-cv-05090-MLCF-ALC Document 102-2 Filed 05/20/14 Page 1 of 4

2
marriages when determining the filing status of Louisiana taxpayers,
regardless of the taxpayers’ federal filing status. However, it is inaccurate
to state that the Louisiana Department of Revenue “will not follow” IRS
Revenue Ruling 2013-17. The IRS ruling applies only to the federal
government and does not purport to govern Louisiana tax policy. See IRS
Rev. Rul. 2013-17, at 1 (asking “[w]hether, for Federal tax purposes, the
[IRS] recognizes a marriage of same-sex individuals validly entered into in
a state whose laws authorize the marriage of two individuals of the same
sex even if the spouses are domiciled does not recognize the validity of
same-sex marriages”) (emphasis added).
10. Admitted, with the exception of the statement that plaintiffs filed their
2012 Louisiana tax return “[i]n accordance with Louisiana Revised
Statute 47:294.” That statute must be interpreted in conformity with
Louisiana Constitution article XII, § 15. Consequently, it cannot validly
require the Louisiana Department of Revenue to recognize same-sex
marriages for purposes of Louisiana tax law.
11. Admitted.
12. Denied as written. Louisiana Revised Statute 47:294 must be interpreted
in conformity with Louisiana Constitution article XII, § 15. Consequently,
it cannot validly require the Louisiana Department of Revenue to
recognize same-sex marriages for purposes of Louisiana tax law.
13. Admitted.
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3
14. Defendants lack sufficient knowledge to admit or deny this statement.
15. Defendants lack sufficient knowledge to admit or deny this statement.
16. Defendants lack sufficient knowledge to admit or deny this statement.
17. Defendants lack sufficient knowledge to admit or deny this statement.
18. Defendants lack sufficient knowledge to admit or deny this statement.

Respectfully submitted,
s/ S. Kyle Duncan
S. Kyle Duncan, 25038, T.A.
Special Assistant Attorney General
Louisiana Department of Justice
P.O. Box 94005
Baton Rouge, LA 70804
Phone: (202) 714-9492
Fax: (225) 326-6098
kduncan@duncanpllc.com
Attorney for Defendants


Case 2:13-cv-05090-MLCF-ALC Document 102-2 Filed 05/20/14 Page 3 of 4

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CERTIFICATE OF SERVICE
I hereby certify that on May 20, 2014, I electronically filed the foregoing with the
Clerk of Court by using the CM/ECF system, which will be electronically served on
all counsel of record.

/s S. Kyle Duncan
S. Kyle Duncan
Attorney for Defendants

Case 2:13-cv-05090-MLCF-ALC Document 102-2 Filed 05/20/14 Page 4 of 4

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