Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana

Louisiana Law Review Volume 75 | Number 1 Fall 2014 Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana Mallory Chatelain Repository Citation Mallory Chatelain, Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana , 75 La. L. Rev. (2014) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol75/iss1/13 This Comment is brought to you for free and open access by the Law Reviews and Journals at DigitalCommons @ LSU Law Center. It has been accepted for inclusion in Louisiana Law Review by an authorized administrator of DigitalCommons @ LSU Law Center. For more information, please contact sarah.buras@law.lsu.edu . Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana a1 INTRODUCTION Meet Jonathan. Jonathan tells you that he has been in a relationship with his significant other for seven years, and you cannot resist asking why they have not already gotten married. Jonathan could give you a number of predictable reasons for this postponement: age, school, and finances are just a few. But when Jonathan tells you that he is unsure, his answer surprises you, not because Jonathan is unsure of the reason he is not married, but because he is unsure of whether he is already married. You do not understand. How can Jonathan not know whether he is married? The answer is simple: after their wedding in Iowa—a state that permits same-sex marriage—Jonathan and his significant other, Derek, returned home to Louisiana to find that, although they were considered married under many provisions of federal law, they were not considered married at all under Louisiana law. In fact, Jonathan Robicheaux and Derek Penton are a same-sex couple who live in New Orleans, and Robicheaux has filed suit against the state of Louisiana for failing to recognize his same-sex marriage. 1 Copyright 2014, by MALLORY CHATELAIN. a1. The author recognizes that the state of same-sex marriage in the United States and Louisiana, specifically, is subject to constant change. For example, in September 2014, days before the publication of this Comment, a Louisiana state court judge ruled the state’s ban on same-sex marriage unconstitutional in the context of juvenile adoption. See Richard Burgess, Judge Rules State’s Ban on Same-Sex Marriage Unconstitutional , THE ADVOCATE (Sept. 23, 2014), http://theadvocate.com/home/10341269-125/judge-rules-states-ban-on, archived at http://perma.cc/KL3P-FGRT. The state appealed the trial court’s ruling, and the trial court stayed the enforcement of the controversial decision. Id. Thus, the decision had “no immediate impact on the status of same-sex marriages in Louisiana.” Id. As of the publication date of this Comment, Louisiana still maintained express constitutional and legislative bans on same-sex marriage, evidencing the state’s historically strong public policy against such marriages. It should be noted that this Comment’s argument is premised on the fact that same-sex marriage is unconstitutional in Louisiana. 1. See Amended Complaint at 1–2, Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014) (No. 13-CV-05090), available at http://spiveyesq.com /uploads/Amended_Complaint_2_clean.pdf, archived at http://perma.cc/P5FXRVD4. See also Tania Dall, Local Same-Sex Couple Sues State To Have Their Marriage Recognized , WWLTV (Sept. 20, 2013, 10:07 PM), http://www .wwltv.com/news/Local-Same-Sex-Couple-Sues-Attorney-General-Caldwell-For-Equal-Rights-224662651.html, archived at http://perma.cc/UE4S-88X5; Scott Satchfield, Same-Sex N.O. Couple Challenging State’s Gay Marriage Laws with 304 LOUISIANA LAW REVIEW [Vol. 75 In his complaint, Robicheaux alleges the unconstitutionality of provisions of Louisiana law that both prohibit same-sex marriages in the state and refuse to recognize same-sex marriages validly performed in other states. 2 These provisions include Louisiana Constitution Article XII, Section 15, defining marriage in Louisiana as between one man and one woman, and Louisiana Civil Code article 3520, designating same-sex marriage as a violation of strong public policy in Louisiana. 3 Robicheaux argues that as long as Louisiana refuses to recognize existing same-sex marriages, same-sex couples living in the state will not be afforded numerous federal protections to which they are now entitled as a result of the United States Supreme Court’s decision in United States v. Windsor , such as the tax and social security benefits that are typically available to spouses. 4 In its landmark decision, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for federal law purposes as “between one man and one woman,” was unconstitutional. 5 As a result, federal agencies are no longer Federal Suit , FOX (Aug. 5, 2013, 9:45 PM), http://www.fox8live.com/story /22961782/same-sex-no-couple-challenging-states-gay-marriage-laws-with-feder al-suit, archived at http://perma.cc/75VZ-Q7PJ. 2. Amended Complaint, Robicheaux , supra note 1. 3. Id. See also LA. CONST. art. XII, § 15; LA. CIV. CODE art. 3520 (2012). 4. See Amended Complaint, Robicheaux , supra note 1, at 4–5; United States v. Windsor, 133 S. Ct. 2675 (2013); see also Dall, supra note 1. In September 2014, a federal district judge held, in Robicheaux v. Caldwell , that the provisions of Louisiana law that define marriage as between one man and one woman and prohibit the recognition of same-sex marriage as a violation of the state’s strong public policy “do not infringe the guarantees of the Equal Protection and Due Process Clauses of the United States Constitution.” Order and Reasons at 32, Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014) (No. 13-CV-05090), available at https://sblog.s3.amazonaws.com/wpcontent/uploads/2014/09/Louisiana-marriage-ruling-9-3-14.pdf, archived at http://perma.cc/VTV5-A7BY. The plaintiffs appealed that decision to the United States Court of Appeals for the Fifth Circuit. See James Queally & Michael Muskal, Bucking Trend, Federal Judge Upholds Gay Marriage Ban in Louisiana , L.A. TIMES (Sept. 3, 2014, 5:13 PM), http://www.latimes.com/na tion/nationnow/la-na-nn-louisiana-marriage-ban-201 40903-story.html, archived at http://perma.cc/8FTD-RN4R; Richard Wolf, String of Gay Marriage Victories Broken in Louisiana , USA TODAY (Sept. 3, 2014, 6:16 PM), http://www .usatoday.com/story/news/nation/2014/09/03/gay-marriage-louisiana/15021785, archived at http://perma.cc/3MQ4-Y7X4. 5. Windsor , 133 S. Ct. 2675. See also 1 U.S.C. § 7 (2012); Pete Williams & Erin McClam, Supreme Court Strikes Down Defense of Marriage Act , NBC POLITICS (June 26, 2013, 7:04 AM), http://nbcpolitics.nbcnews.com/_news /2013/06/26/19151971-supreme-court-strikes-down-defense-of-marriage-act- 2014] COMMENT 305 prohibited from recognizing same-sex marriage. 6 However, the post- Windsor guidance that these agencies have issued is anything but clear and consistent, particularly pertaining to tax, Social Security, and military benefits. 7 Additionally, the fundamental shifts and differences in federal agencies’ policies toward same-sex marriage create significant conflicts for states that do not recognize same-sex marriage, such as Louisiana. 8 The first of these conflicts between post- Windsor federal agency policy and Louisiana law stems from Louisiana’s requirement that its taxpayers use the same filing status on their state and federal tax returns. 9 Under the Internal Revenue Service’s post- Windsor guidance, married same-sex couples are required to file as married under federal law. 10 However, in accordance with the Louisiana paves-way-for-gay-marriage-to-resume-in-california?lite, archived at http://perma .cc/FJ3E-X48T; SSA’s Post-Windsor Guidance May Provide Clues About IRS’s Position , TAX WARRIOR CHRONICLES (Aug. 21, 2013), http://www.taxwar riors.com/blog/bid/185502/SSA-s-Post-Windsor-Guidance-May-Provide-Clues-About-IRS-s-Position, archived at http://perma.cc/VUR6-UJBC. 6. See TAX WARRIOR CHRONICLES, supra note 5; Carol V. Calhoun, Who is a Spouse? Different Federal Agencies Take Differing Approaches After Windsor, EMP. BENEFITS LEGAL RES. SITE (Aug. 13, 2013), http://benefits attorney.com/who-is-a-spouse-different-federal-agencies-take-differing-approach es-after-windsor/, archived at http://perma.cc/MN89-FHHQ. 7. See Program Operations Manual System GN 00210.001: Windsor Same-Sex Marriage Claims – Introduction, SOCIAL SEC. ADMIN. (Sept. 6, 2013), available at http://policy.ssa.gov/poms.nsf/lnx/0200210001, archived at http: //perma.cc/Q33X-P4RN. See also TAX WARRIOR CHRONICLES, supra note 5; Calhoun, supra note 6. 8. See Annie Lowrey, Gay Marriages Get Recognition From the I.R.S. , N.Y. TIMES (Aug. 29, 2013), http://www.nytimes.com/2013/08/30/us/politics /irs-to-recognize-all-gay-marriages-regardless-of-state.html, archived at http: //perma.cc/M63J-9JYJ; Mark Ballard, Same-Sex Tax Rules Create Trouble for La. , THE ADVOCATE (Sept. 5, 2013), http://theadvocate.com/home/6964271-125/new-same-sex-marriage-tax-rules, archived at http://perma.cc/67KE-Q9YZ [hereinafter Ballard, Same-Sex Tax Rules Create Trouble ]; Julia O’Donoghue, Commission to Study Federal Influence on Louisiana’s Definition of Marriage , THE TIMES-PICAYUNE (Sept. 10, 2013), http://www.nola.com/politics/index.ssf /2013/09/commission_to_study_federal_in.html, archived at http://perma.cc/CC 4X-E8SV. 9. See Louisiana Resident Income Tax Return Form (IT-540) (2012), available at http://www.revenue.louisiana.gov/forms/taxforms/IT540i(2012)F .pdf, archived at http://perma.cc/W7C8-T66C; see also O’Donoghue, supra note 8. 10. Rev. Rul. 2013-17, 2013-38 I.R.B. 201 (Sept. 16, 2013), available at http://www.irs.gov/pub/irs-irbs/irb13-38.pdf, archived at http://perma.cc/4MLBMMH4; LA. CONST. art. XII, § 15. See also TIM BARFIELD, LA. DEP’T OF REVENUE, REVENUE INFORMATION BULLETIN NO. 13-024 (Sept. 13, 2013), available at...