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Lawsuit Could Lead to Gay Marriage in Louisiana

The Washington Blade is reporting that a New Orleans same-sex couple, Kristoffer Bonilla and John Thomas Wray, are asking a federal judge to strike down the constitutional amendment which bans same-sex marriage in their state.

The couple is suing over being denied a marriage license in Louisiana, claiming their First Amendment rights are being violated by the state’s constitutional ban. The ban on same-sex marriage in their state was approved by voters in 2004.

Alliance Defense Fund attorney Mike Johnson, who argued for the amendment when the Supreme Court heard the case, said the new lawsuit is “frivolous”.

Advocates on both sides of the issue have said they weren’t aware of another case like it in the state, and this case has the potential to legalize gay marriage in the state of Louisiana if the couple wins.

Legal analysts are already prepping for this one, and commentary is expected across all forms of media when this case has it’s day in court.

The men filed the lawsuit against several state and local officials on April 2, the same day they were said to have been denied the license.

Like Louisiana voters, on November 3, 1992, Colorado voters, with a vote of 53.4 percent, enacted “Amendment 2″, which read:

Neither the state of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

The amendment was drafted and promoted by the organization Colorado for Family Values, and it would have effectively prevented any laws banning discrimination against gays, and thereby nullified gay rights laws that already existed in Aspen, Denver, and Boulder.

An immediate legal challenge was launched by gay rights groups. On January 15, 1993 the groups were granted a temporary injunction from 2nd District Court Judge Jeffrey Bayless preventing Amendment 2 becoming part of the state constitution, on the grounds of its possible unconstitutionality and possible irreparable harm that would be caused by its implementation. The court scheduled a trial to decide the case.

Before the trial could begin, the state appealed to the Colorado Supreme Court. On July 19, 1993, that court upheld the original injunction, on the grounds that Amendment 2 violated the equal protection clause of the Fourteenth Amendment to the United States Constitution, insofar as Amendment 2 denied gays equal rights to normal political processes. Chief Justice Luis Rovera wrote:

Were Amendment 2 in force [...] the sole political avenue by which this class could seek such protection [against discrimination] would be through the constitutional amendment process.

The state Supreme Court demanded that the legislation face “strict scrutiny” and prove that it advanced a “compelling state interest”, and returned the case to the District Court for trial. Judge Bayless found that the amendment failed the test, and ruled it unconstitutional on December 14, 1993.

Colorado appealed to the State Supreme Court, which affirmed the District Court’s decision on October 11, 1994, and appealed to the U.S. Supreme Court.

The case was argued on October 10, 1995. On May 20, 1996, the court ruled 6-3 that Colorado’s Amendment 2 was unconstitutional, though on different reasoning than the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Rejecting the state’s argument that Amendment 2 merely blocked gay people from receiving “special rights”, Kennedy wrote:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

Kennedy argued that protection offered by antidiscrimination laws was not a “special right” because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws “enumerated” certain groups which they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory).

Instead of applying “strict scrutiny” to Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

And:

[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Kennedy did not go into depth in rejecting the claims put forward in support of the law (protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive, etc.) because he held that the law was so unique as to “confound this normal process of judicial review” and “defies…conventional inquiry.” This conclusion was supported by his assertion that “It is not within our constitutional tradition to enact laws of this sort.” Finding that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” the Court implied that the passage of Amendment 2 was born of a “bare…desire to harm” homosexuals.