This document is a supplemental brief submitted by defendants in a federal civil action regarding same-sex marriage in Louisiana. In the brief, defendants argue that: (1) Louisiana has sovereign authority over its domestic relations law and is not compelled by the Fourteenth Amendment to allow same-sex marriage; and (2) Louisiana does not violate the First Amendment by requiring same-sex married couples to file state tax returns as single individuals. Defendants ask the court to grant their pending motion for partial summary judgment.
This document is a supplemental brief submitted by defendants in a federal civil action regarding same-sex marriage in Louisiana. In the brief, defendants argue that: (1) Louisiana has sovereign authority over its domestic relations law and is not compelled by the Fourteenth Amendment to allow same-sex marriage; and (2) Louisiana does not violate the First Amendment by requiring same-sex married couples to file state tax returns as single individuals. Defendants ask the court to grant their pending motion for partial summary judgment.
This document is a supplemental brief submitted by defendants in a federal civil action regarding same-sex marriage in Louisiana. In the brief, defendants argue that: (1) Louisiana has sovereign authority over its domestic relations law and is not compelled by the Fourteenth Amendment to allow same-sex marriage; and (2) Louisiana does not violate the First Amendment by requiring same-sex married couples to file state tax returns as single individuals. Defendants ask the court to grant their pending motion for partial summary judgment.
JAMES D. CALDWELL, et al., Defendants CIVIL ACTION
NO. 13-5090 C/W NOS. 14-97 & 14-327
SECTION F(5)
DEFENDANTS SUPPLEMENTAL BRIEF
Pursuant to the Courts June 26 order (Doc. 114), defendants submit this brief addressing (1) whether the Fourteenth Amendment gives same-sex couples the right to marry in Louisiana, and (2) whether Louisiana violates the First Amendment by requiring persons in a same-sex marriage contracted elsewhere to file Louisiana tax returns as single persons. 1 The answer to both questions is no. All pending claims are now ripe for decision. Defendants ask the Court to grant their pending motion for partial summary judgment and reject plaintiffs claims that the Constitution compels Louisiana to recognize out-of-state same-sex marriages. Doc. 84. Defendants also ask the Court to enter summary judgment against plaintiffs on their remaining claims. See FED. R. CIV. PROC. 56(f) (allowing court to grant summary judgment independent of pending motions, provided parties are afforded notice and a reasonable time to respond). 2
1 The Court also requested briefing on whether the Full Faith and Credit Clause requires Louisiana officials to recognize out-of-state same-sex marriages, but the parties have moved to voluntarily dismiss that claim. Doc. 119. 2 Defendants believe further briefing is unnecessary, but they reserve the right to file a reply brief if plaintiffs file one. Defendants oppose the request for oral argument by plaintiffs Welles and Beauregard on their summary judgment motion filed today. Doc. 118. Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 1 of 24 2 I. THE CONSTITUTION DOES NOT COMPEL LOUISIANA TO ADOPT SAME-SEX MARRIAGE. A. Louisiana has sovereign authority over its domestic relations law. Whether the Constitution compels Louisiana to alter its marriage definition and allow same-sex couples to marry is closely related to the question whether Louisiana must recognize same-sex marriages contracted elsewhere. See Docs. 84-1, 102, 108. The two issues should be resolved on the same grounds. 3 Defendants therefore submit they are not compelled to allow same-sex marriage in Louisiana for the same reasons they are not compelled to recognize same-sex marriages from other states. In brief, those reasons are: (1). Federalism. Whether to enlarge the definition of marriage to include same-sex couples lies within Louisianas historical and essential authority to define the marital relation. United States v. Windsor, 133 S. Ct. 2675, 2689, 2692 (2013). That authority was of central relevance to the Supreme Courts decision last year in Windsor to overturn the federal marriage definition in DOMA. Id. at 2692. Plaintiffs claim that Louisiana must adopt same-sex marriage would effectively overrule Windsor. See Doc. 84-1 at 4-7; Doc. 102 at 2-5; Doc. 108 at 1-2. (2). Equal Protection. Louisianas marriage laws should be examined only under rational basis review. Doc. 84-1 at 11-13; Doc. 102 at 6-9; Doc. 108 at 4; Doc. 112. Defining civil marriage as a man-woman relationship is rational because: (a) a
3 While mistakenly creating a due process right to same-sex marriage, many courts have properly treated the right-to-marry and marriage-recognition issues as interrelated. See Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 at *16 (10th Cir. June 25, 2014) (In light of Windsor, we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married.) (collecting cases). Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 2 of 24 3 principal legal purpose of marriage is to link children with an intact family formed by their biological parents, and (b) the vast majority of children are born from the sexual union of a man and a woman. Doc. 84-1 at 12-17; Doc. 102 at 15-17. Louisianas decision in 2004 to retain its definitionand not to adopt same-sex marriagewas also rational. Adopting same-sex marriage involves a far-reaching legal acknowledgment demanding the formation of consensus among a states citizens. Windsor, 133 S. Ct. at 2692. Whether a state adopts same-sex marriage (like 16 states) or retains the man-woman definition (like 34 states), that choice is rational. Indeed, as Windsor said, it is without doubt a proper exercise of sovereign authority within our federal system, all in the way that the Framers of the Constitution intended. Id; see Doc. 84-1 at 17-20; Doc. 102 at 17-18. (3). Due Process. Louisianas marriage laws do not violate due process because the right to marry someone of the same sex is not deeply rooted in this Nations history and tradition. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotes omitted). Until 2003, no state had adopted same-sex marriage; two-thirds still have not. As Windsor taught, the man-woman aspect of marriage no doubt had been thought of by most people as essential to the very definition of that term. 133 S. Ct. at 2689 (emphasis added). Whether to alter that longstanding definition and adopt same-sex marriage is not a decision that courts, wielding the due process clause, should place outside the arena of public debate and legislative action. Glucksberg, 521 U.S. at 720; see Doc. 84-1 at 20-24; Doc. 102 at 18-23. Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 3 of 24 4 B. The Tenth Circuit mistakenly created a due process right to marry someone of the same sex. On the same day the Court heard argument in this case, a divided panel of the Tenth Circuit held that same-sex couples have a fundamental right to marry under the Due Process Clause. Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 (10th Cir. June 25, 2014). The majority decision is wrong for three main reasons: (1) it ignores the crucial federalism dimension of Windsor; (2) it misapplies the Supreme Courts right-to-marry cases; and (3) it misapplies the Supreme Courts right-to-privacy cases. As Judge Kellys dissent explained, the majority decisionwhose reasoning would requir[e] every state to recognize same-gender unions[,] contrary to the view of its electorate and representativeswould turn[ ] the notion of a limited national government on its head. Kitchen at *33 (Kelly, J., dissenting). The Court should reject the reasoning of the Kitchen majority. 4
1. Kitchen dismisses federalism as a prudential concern. Windsor invalidated the federal marriage definition because of the states historic and essential authority to define the marital relation. 133 S. Ct. at 2692. That authority was of central relevance to its holding. Id.; see also id. at 2691 (In order to assess [DOMAs] validity it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition.) (emphasis added). That is why Windsor (1) spent seven pages tracing the origins of state responsibilities for the definition and regulation of marriage to the Nations
4 The Kitchen majority did not reach equal protection. Defendants therefore do not address equal protection in detail in this brief, but rely on their previous briefing on that issue. See Doc. 84-1 at 12-20; Doc. 102 at 15-18; Doc. 108 at 4-8. Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 4 of 24 5 beginning (133 S. Ct. at 2691, 2689-96); (2) praised New Yorks statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage (id. at 2689); (3) emphasized that DOMA was unusual because it depart[ed] from [the federal governments] history and tradition of reliance on state law to define marriage (id. at 2692), and (4) limited its opinion and holding to those persons who are joined in same-sex marriages made lawful by the State (id. at 2695-96). In short, Windsor struck down DOMAnot because it classified by sexual orientation or burdened the right to marrybut because DOMAs purpose [was] to influence or interfere with state sovereign choices about who may be married. Id. at 2693 (emphasis added). The Kitchen majority missed all of this. It reduced Windsors reliance on state sovereignty to a prudential concern[ ]. Kitchen at *31. It dismissed arguments appealing to the value of democratic decision-making and the benefits of federalism as a mere preference that [plaintiffs] arguments be settled elsewhere. Id. Andremarkablyit said the choice between resolving this issue by federal decree or by the democratic process was merely a matter of timing. Id. Judge Kellys dissent rightly rejected this reasoning as a basic misreading of Windsor. As Judge Kelly explained, Windsor did not create a fundamental right to same-gender marriage. To the contrary, Windsor recognized the authority of the States to redefine marriage and stressed the need for popular consensus in making such change. Id. at *38 (Kelly, J., dissenting) (citing 133 S. Ct. at 2692). Ignoring that the States are laboratories of democracy with respect to this basic issue Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 5 of 24 6 would turn[ ] the notion of a limited national government on its head. Id. at *33 (Kelly, J., dissenting) (citing Bond v. United States, 131 S. Ct. 2355, 2364 (2011)). The Kitchen majority thus repeated the error of several district courts, who have also watered down Windsors explicit grounding in state authority. See, e.g., Kitchen v. Herbert, 961 F.Supp.2d 1181, 1193-94 (D. Utah 2013) (Windsors important federalism concerns are insufficient to overcome plaintiffs rights); Bostic v. Rainey, 970 F.Supp.2d 456, 476 (E.D. Va. 2014) (finding federal right to same-sex marriage despite Windsors teaching that deference [to state domestic relations authority] is appropriate, and even essential); Wolf v. Walker, __ F.Supp.2d __, 2014 WL 244844, at *11 (W.D. Wis. June 6, 2014) (striking down Wisconsin marriage law, despite admitting that Windsor noted multiple times that the regulation of marriage is a traditional concern of the states). In these courts view, Windsor says nothing about whether states may retain the man-woman definition of marriage. See, e.g., Wolf at *11 (noting that Windsors observations [about state authority] were not new; the Court has recognized for many years that the regulation of marriage is primarily a concern for the states). That ignores what Windsor actually said. DOMA was invalid, Windsor explained, because of the congressional purpose to influence or interfere with state sovereign choices about who may be married. 133 S. Ct. at 2693 (emphasis added). Windsor was not agnostic about a states authority to define marriage; its holding depended on that authority. Finally, Kitchen tries to minimize Windsors federalism rationale by invoking its Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 6 of 24 7 statement that state marriage laws must respect the constitutional rights of persons. Kitchen at *31 (quoting Windsor, 133 S. Ct. at 2691); see also, e.g., Wolf at *12; Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999, at *26 (D. Idaho 2014) (same). This again misreads Windsor. The case Windsor cited to illustrate that statement was Loving v. Virginia, 388 U.S. 1 (1967). Far from a disclaimer of enormous proportions, Bishop v. United States, 962 F.Supp.2d 1252, 1279 (N.D. Okla. 2014), the Courts citation of Loving indicates no plans to override a states choice regarding same-sex marriage. Loving involved anti-miscegenation laws racist relics of slavery that violated the clear and central purpose of the Fourteenth Amendment and triggered strict scrutiny. 388 U.S. at 6, 10. While the Fourteenth Amendment outlaws such invidious racial discrimination, Windsor recognized that the Constitution leaves citizens free to discuss and weigh arguments for and against same-sex marriage because [t]he dynamics of state government in our federal system are to allow the formation of consensus on this foundational issue. Windsor, 133 S. Ct. at 2689, 2692. Loving has nothing to do with this case. 2. Kitchen misapplies the Supreme Courts right-to-marry cases. Drawing on the Supreme Courts right-to-marry cases, Kitchen concluded that a states man-woman definition denies same-sex couples the fundamental right to marry. Kitchen at *1, *11-20 (relying on Loving, supra; Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safely, 482 U.S. 78 (1987)). But, as Judge Kelly pointed out, that conclusion violates the rule that recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue. Kitchen at *36 (Kelly, J., dissenting) Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 7 of 24 8 (citing Glucksberg, 520 U.S. at 720-21). The right to marry someone of the same sexwhich is the right asserted here, properly described, Doc. 102 at 18-22is not deeply rooted in our national history and therefore does not qualify as a fundamental right protected by due process. Windsor itself showed why. The man- woman aspect of marriage, Windsor explained, has been thought essential to the very definition of [marriage] and to its role and function through the history of civilization, whereas same-sex marriage involves a new perspective, a new insight. 133 S. Ct. at 2689. Thus, while states may democratically decide to adopt same-sex marriage, Windsor confirmed that the right to marry someone of the same sex is not deeply rooted in our national history. Glucksberg, 520 U.S. at 720; see also, e.g., Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1096 (D. Hawaii 2012) (concluding that the right at issue here is an asserted new right to same-sex marriage and is therefore not the existing fundamental right to marry). The Kitchen majority side-stepped all this by reasoning that the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it. Kitchen at *18 (emphasis added). That is incorrect. The cases the majority cited held that states cannot bar marriage based on a persons failure to pay child support (Zablocki, 434 U.S. at 385-87), incarceration (Turner, 482 U.S. at 95-98), and race (Loving, 388 U.S. at 11). But none of them established anything as open-ended as a right to marry independent of the persons exercising it. Kitchen at *18. That would be absurd: a right so broad would give someone the fundamental right to marry a 13-year-old or a first cousin. See Doc. 102 at 20-21. Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 8 of 24 9 Windsor itself confirmed that state marriage laws may, and do, vary on such matters. See 133 S. Ct. at 2691-92 (noting that the required minimum age is 16 in Vermont, but only 13 in New Hampshire, and that most States permit first cousins to marry, but a handful prohibit the practice). And long before Windsor, Zablocki made the same point, cautioning that reaffirming the fundamental character of the right to marry does not call into question all state incidents of or prerequisites for marriage. 434 U.S. at 386. The Kitchen majority simply read the right-to-marry cases far too broadly, a cardinal violation of the rule that an asserted due process right must be carefully describ[ed]. Glucksberg, 520 U.S. at 720; see also, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (Substantive due process analysis must begin with a careful description of the asserted right, for [t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field) (quoting Collins v. Harker Heights, 503 U.S. 115, 123 (1992)). None of the Courts cases even hint that the right to marry is broad enough to encompass marrying someone of the same sex. As Judge Kelly explained, it is a stretch to cast those cases in support of a fundamental right to same-gender marriage, because nothing suggests that the term marriage as used in those cases had any meaning other than what was commonly understood for centuries. Kitchen at *36 (Kelly, J., dissenting); see also, e.g., Jackson, 884 F.Supp.2d at 1095 (observing that the Supreme Court, in discussing the fundamental right to marry, has had no reason to consider anything other than the traditional and ordinary understanding of Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 9 of 24 10 marriage as a union between a man and a woman). Kitchen relied heavily on Turners discussion of personal aspects of marriage such as emotional support, spiritual significance, and a pre-condition to the receipt of government benefits. See Kitchen at *14-15 (quoting Turner, 482 U.S. at 95-96). From that, the majority concluded that the right to marry cannot be limited to naturally procreative couples but must include same-sex couples. Id. at *18. That misses the point entirely. The question is not whether civil marriage serves purposes for the spouses themselves, in addition to linking children with parents. It does, as defendants have pointed out. See Doc. 84-1 at 16. The question, rather, is whether a right to marry someone of the same sex is an objective feature of our legal traditions. Nothing in Turner or any of the right-to-marry cases remotely addresses that question. Thus, using those cases to construct a right to same-sex marriage would, as Judge Kelly cautioned, announce a fundamental right by implication. Kitchen at *37 (Kelly, J., dissenting). It should be clear that substantive due process analysis does not work by implication. To the contrary, the Supreme Court demands that the outlines of the liberty protected by the Fourteenth Amendment [be] carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. Glucksberg, 521 U.S. at 722; see also, e.g., Jackson, 884 F.Supp.2d at 1096 (In describing the asserted fundamental right, the Supreme Court has eschewed breadth and generality in favor of narrowness, delicacy, and precision.) (quoting Log Cabin Republicans v. United States, 658 F.3d 1162, 1169 (9th Cir. 2011)). Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 10 of 24 11 Ultimately, the Kitchen majority made the same mistake as the court of appeals that was reversed in Glucksberg. In that assisted-suicide case, the Ninth Circuit broadly defined the relevant liberty interest as determining the time and manner of ones death, or, in other words, [i]s there a right to die? Glucksberg, 520 U.S. at 722 (quoting Compassion in Dying v. Washington, 79 F.3d 790, 801, 799 (9th Cir. 1996)). The Supreme Court rejected that overbroad framing, explaining that we have a tradition of carefully formulating the interest at stake in substantive-due- process cases. Id. The Court had never recognized anything as broad as an unembellished right to die. At most, it had recognized a right to refuse lifesaving hydration and nutrition, which did not include the asserted right to assisted suicide. Id. (quoting Cruzan v. Director, 497 U.S. 261, 279 (1990)). The same analysis applies here. The Kitchen majority imagined the Supreme Court had established a right to marry in broad terms independent of the persons exercising it. Kitchen at *18. But a careful reading of the Courts cases shows it has never recognized a right to marry of such unqualified breadth. The Court has held that marriage may not be limited by a persons financial ability (Zablocki), incarceration (Turner), and race (Loving), but that it may be limited by age and consanguinity (Windsor). No decision has ever suggested the right to marry is broad enough to encompass the right to marry someone of the same sex. Indeed, the Court had every opportunity to announce such a right in Windsor, but conspicuously chose not to. Instead, Windsor acknowledged the opposite-sex aspect of marriage has been thought essential to the very definition of [marriage] and to its role and function Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 11 of 24 12 through the history of civilization, whereas marriage between same-sex partner involves a new perspective, a new insight. 133 S. Ct. at 2689. Those statements refute the idea that the right to marry someone of the same sex is deeply rooted in our national history. In sum, just as in Glucksberg the Ninth Circuit mistakenly extracted from Supreme Court cases an unqualified right to die broad enough to encompass assisted suicide, so too in Kitchen the Tenth Circuit mistakenly extracted an unqualified right to marry broad enough to encompass same-sex couples. That new right may, of course, be granted by the democratic process, as a minority of states have done. By virtue of that process, [p]erhaps someday same-gender marriage will become part of this countrys history and tradition, but that is not a choice this court should make. Kitchen at *37 (Kelly, J., dissenting). 3. Kitchen misapplies the Supreme Courts right-to-privacy cases. The Kitchen majority compounded its erroneous analysis of the right-to-marry cases by relying on the Supreme Courts right-to-privacy cases. Kitchen at *20-21 (relying on Lawrence v. Texas, 539 U.S. 558 (2003), and Planned Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992)). Those cases do not apply here. First, the right-to-privacy cases address private choices about sex and procreation, not official government recognition of relationships. See, e.g., Lawrence, 539 U.S. at 565 (explaining that privacy decisions like Griswold v. Connecticut, 381 U.S. 479, 486 (1965), protect the right to make certain decisions regarding sexual conduct). As Judge Kelly pointed out, those cases afford constitutional protection for certain moral and sexual choices of same-gender couples, [but] they simply have Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 12 of 24 13 not created a fundamental right to same-gender marriage. Kitchen at *37 (Kelly, J., dissenting) (quoting Windsor, 133 S. Ct. at 2694). Indeed, the Kitchen majoritys principal privacy caseLawrenceexpressly disclaimed entering the same-gender union fray. Kitchen at *37 (Kelly, J., dissenting); see Lawrence, 539 U.S. at 578 (emphasizing it d[id] not involve whether the government must give formal recognition to any relationship that homosexual persons may enter). Second, Kitchen mistakenly used Lawrence as a guide to framing the due process right in this case. But Lawrence was about sexual privacy, not government recognition. The privacy right asserted in Lawrence, the Court explained, should not be framed as a right to engage in homosexual sodomy because it concerned adults liberty to conduct their private lives in matters pertaining to sex. 539 U.S. at 572. This case involves the assertion of a different right. Here, plaintiffs do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity, but instead seek from the courts access to a state-conferred benefit that the Legislature has rationally limited to opposite-sex couples. Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006); see also, e.g., Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (holding that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right). And Lawrence itself settled any doubt over whether it applies to marriage recognition: Lawrence plainly said 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. The Kitchen majority ignored Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 13 of 24 14 that massive disclaimer. Finally, Kitchen mistakenly deduced a right to same-sex marriage from general statements in Lawrence and Casey protecting personal decisions relating to marriage and personal choices central to personal dignity and autonomy. Kitchen at *21 (quoting Lawrence, 539 U.S. at 574; Casey, 505 U.S. at 851). The majoritys impressionistic analysis, however, failed to heed the Supreme Courts more rigorous standards for finding a fundamental right. The Court requires that an asserted right be supported, not by abstractions, but by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. Glucksberg, 521 U.S. at 722. The Court has specifically rejected the notion that fundamental rights may be simply deduced from abstract concepts of personal autonomy. Id. at 724. Indeed, with respect to Caseys autonomy language, the Court has issued this caution: That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected and Casey did not suggest otherwise. Id. at 727-28 (citation omitted). The Kitchen majority relied on Casey and Lawrences broad language to do precisely what Glucksberg cautioned courts not to do. As Judge Kelly explained, the majority mistakenly expound[ed] on how other substantive due process and privacy concepts, including personal autonomy, dignity, family relationships, reproductive rights, and the like, are the antecedents and complements of same-gender marriage. Kitchen at *37 (Kelly, J., dissenting); see also, e.g., Jackson, 884 Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 14 of 24 15 F.Supp.2d at 1096 (In describing the asserted fundamental right, the Supreme Court has eschewed breadth and generality in favor of narrowness, delicacy, and precision.) (quoting Log Cabin Republicans, 658 F.3d at 1169). 5 The Kitchen majoritys analysis is not the restrained methodology called for by the Supreme Courts due process cases. Glucksberg, 521 U.S. at 721. ***** In sum, the Court should reject the Kitchen majoritys erroneous and overbroad due process analysis. Instead, the Court should conclude that the Due Process Clause does not protect a fundamental right to marry someone of the same sex because that right is not deeply rooted in this Nations history and tradition. Id. II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS COMPELLED SPEECH CLAIM. Plaintiffs in No. 14-327 claim that having to file a Louisiana tax return designated as single violates the First Amendment by compelling them to deny their marital status. Doc. 1 (No. 14-327), at 123-131. This novel claim has no merit because this tax filing requirement regulates conduct, not speech, and therefore does not implicate the First Amendment compelled speech doctrine at all. Louisiana residents (and certain non-residents) who are required to file a federal individual tax return must file a state return in accordance with Louisiana law. LA.
5 The Kitchen majority suggested Lawrence is relevant to same-sex marriage because the opinion alluded to marriage. Kitchen at *21. That misreads the decision. Lawrence simply repeated Caseys list of protected personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. 539 U.S. at 574 (citing Casey, 505 U.S. at 851). Lawrence never suggested every decision related to these broad topics is ipso facto protected by due process. If there were any doubt, Lawrence expressly disclaimed any application to marriage recognition. Kitchen at *37 (Kelly, J., dissenting). Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 15 of 24 16 R.S. 47:101(A)(1),(3); 47:31. Louisiana allows a husband and wife the option of filing a single return jointly. Id. 47:101(B)(1); see also id. 47:293(6) (providing that, for any taxable year, a husband and wife may file a joint income tax return). After Windsor, the IRS announced it would treat married same-sex couples as married for federal tax purposes regardless of their state of domicile. IRS Revenue Ruling 2013-17. The Louisiana Department of Revenue then issued a bulletin stating that, [i]n compliance with the Louisiana Constitution, the Department shall not recognize same-sex marriages when determining filing status. Revenue Bulletin No. 13-024; Doc. 86-26. Accordingly, the Department issued these instructions for the individual income tax form (Form IT-540): Individuals who entered into a same-sex marriage in another state cannot file a Louisiana income tax return using a tax status of married filing jointly or married filing separately. In the case of same-sex individuals who are considered married for federal tax purposes: Each individual must file a separate single, qualified head of household or qualifying widow(er) Louisiana tax return. Taxpayers must take the income on the federal joint tax return and allocate it between the taxpayers for use on their single, head of household, or qualifying widow(er) state tax return. Items of income must be allocated to the taxpayer who actually earned the income. No amended returns for past years will be permitted to change filing status.
Doc. 86-27 at 2, 3. Plaintiffs argue that these instructions unconstitutionally compel them to affirm Louisianas favored viewpoint regarding same-sex marriage and to deny his or her marital status. Doc. 1 (No. 14-327), at 128. They are mistaken. The First Amendment prohibits the government from telling people what they must say. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 16 of 24 17 47, 61 (2006) (FAIR) (emphasis added). For instance, a state may not require schoolchildren to recite the Pledge of Allegiance or salute the flag, West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), nor may it force motorists to display the state motto on their license plates. Wooley v. Maynard, 430 U.S. 705, 717 (1977). This compelled speech doctrine, however, does not apply to regulation of conduct, unless the conduct is inherently expressive. FAIR, 547 U.S. at 64; see also, e.g., Voting for America, Inc. v. Steen, 732 F.3d 382, 388 (5th Cir. 2013) (noting only conduct that is inherently expressive is entitled to First Amendment protection) (quoting FAIR, 547 U.S. at 66). By requiring plaintiffs to file single tax returns, Louisiana regulates conduct, not speech. The filing requirement affects what plaintiffs must do not what they may or may not say. FAIR, 547 U.S. at 60. They are required to make a designation on a tax form which, like all tax records, is simply an instrument used by the Department in the administration and enforcement of [Louisiana] tax laws. LA. R.S. 47:1508(A)(1). The form is not a vehicle for expression. Information on tax forms, for instance, is kept strictly confidential. 6 Louisiana does not require plaintiffs returns to be designated as single in order to make plaintiffs affirm anything contrary to their own views. It does so only because Louisiana must operate its tax system in accordance with its own laws, which do not recognize same-sex marriages for purposes of tax filing status.
6 See LA. R.S. 47:15(5) (affording taxpayers [t]he right to strict confidentiality of their tax records); id. 47:1508(A)(1) (providing no person shall divulge or disclose any information obtained from [Department of Revenue] records and files except in the administration and enforcement of [Louisiana] tax laws). Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 17 of 24 18 Even assuming that designating a tax form as single requires plaintiffs to affirm anything at all, the designation simply affirms the legal status quo that Louisianas tax system does not recognize out-of-state same-sex marriages. Regardless, the form plainly does not require plaintiffs to affirm Louisianas favored viewpoint regarding same-sex marriage or to deny [their] marital status. Doc. 1 (No. 14-327), at 128. The opposite is true. The forms instructions acknowledge in bold print that some same-sex individuals [ ] are considered married for federal tax purposes, because they entered into a same-sex marriage in another state. Doc. 86-27 at 2, 3. Both facts are true, and neither the instructions nor the form require anyone to deny them. Furthermore, even if one thought that the act of designating a tax return as single involved protected speech, that speech would be plainly incidental to the [tax systems] regulation of conduct and so would still fail to implicate the First Amendment. FAIR, 547 U.S. at 62; see also Steen, 732 F.3d at 389 (noting the [Supreme] Court has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech). As the Supreme Court explained in FAIR, it has never been deemed an abridgment of freedom of speech to prescribe certain conduct merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. 547 U.S. at 62 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). Confirming these conclusions, the Fifth Circuit recently agreed with the Eighth Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 18 of 24 19 Circuit that compelled disclosure of information on a tax form is not compelled speech under the First Amendment. See United States v. Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014). Rejecting a challenge to a sex offender registration requirement, Arnold adopted the reasoning of an Eighth Circuit case, United States v. Sindel, which held that required disclosure on a tax form is not compelled speech: In United States v. Sindel, 53 F.3d 874 (8th Cir. 1995), albeit in a different context, the court rejected a claim that compelled disclosure of information on an IRS form was unlawful compelled speech: There is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly societyas in the case of compulsion to give evidence in court. Id. at 878.
Arnold, 740 F.3d at 1034-35 (additional quotation omitted). Applying Sindel, the Fifth Circuit concluded that by requiring sex offender registration, a state conducts an essential operation[ ] of [the] government, just as it does when it requires individuals to disclose information for tax collection. Arnold, 740 F.3d at 1035 (quoting Sindel, 53 F.3d at 878) (emphasis added). Arnold also confirmed that this result was entirely consistent with the Supreme Courts compelled speech precedents. See Arnold, 740 F.3d at 1033-34 (discussing Barnette and Wooley). As Arnold explained, requiring such disclosures does not implicate the compelled speech doctrine because it does not forc[e] an individual, through his speech, to affirm a religious, political [or] ideological cause[ ] that the individual did not believe in, nor does it forc[e] an individual, as part of his daily life ... to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. Arnold, 740 F.3d at 1034 (internal citations omitted). For the same reasons, requiring plaintiffs to designate their tax return in a Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 19 of 24 20 particular manner also does not violate the compelled speech doctrine. Instead of compelling speech, the filing requirement is a regulation of conduct necessary to the essential operations of government. Id. Finally, there is nothing inherently expressive about filing a tax return that would trigger the compelled speech doctrine. See, e.g., Steen, 732 F.3d at 388 (noting that, [i]n [FAIR], the Supreme Court underscore[d] that only conduct that is inherently expressive is entitled to First Amendment protection). Filing a tax return is nothing like destroying a draft card or burning a flag, activities the Supreme Court has recognized as inherently expressive for First Amendment purposes. See, e.g., United States v. OBrien, 391 U.S. 367, 376 (1968) (destroying draft cards can be symbolic speech under First Amendment); Texas v. Johnson, 491 U.S. 397, 406 (1989) (burning American flag was expressive conduct meriting First Amendment protection). Indeed, in contrast to those activities, the Supreme Court has recognized that refusing to pay income taxeseven if accompanied by the objectors express disapprovaldoes not implicate the First Amendment. See FAIR, 547 U.S. at 66. A fortiori, the desire not to use a designation on a tax form also fails to implicate any speech. The use of a particular tax designation simply lack[s] the expressive quality of a parade, a newsletter, or the editorial page of a newspaper, and is therefore not compelled speech. Id. at 64. ***** In sum, requiring the use of a particular filing status for tax purposes does not tell[ ] [plaintiffs] what they must say within the meaning of the First Amendment. Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 20 of 24 21 Id. at 61. It regulates plaintiffs conduct, not their speech. Louisianas tax filing requirement therefore does not implicate the compelled speech doctrine at all. Admittedly, plaintiffs object to the distinction between man-woman and same-sex marriages that underlies the filing requirement. But whether that distinction is constitutional depends on the Courts resolution of plaintiffs equal protection and due process claims. It has nothing to do with the plaintiffs right not to speak. As a party invoking the First Amendments protection, [plaintiffs] have the burden to prove that it applies. Steen, 732 F.3d at 388 (citation omitted). They have not done so here, and the Court should therefore reject their compelled speech claim. CONCLUSION As everyone knows, there has been a recent and remarkable outpouring of judicial decisions striking down state marriage laws. In these decisions, the citizens of 34 statesabout 200 million peoplehave been called barking crowds (Geiger v. Kitzhaber, __ F.Supp.2d __, 2014 WL 2054264 at *14 (D. Ore. May 19, 2014)), and have been compared to those who believed that racial mixing was just as unnatural and antithetical to marriage as homosexuality (Wolf v. Walker, __ F.Supp.2d __, 2014 WL 2558444 at *18 (W.D. Wis. June 6, 2014)). They have been told that their views about marriage are rooted in unlawful prejudice (Bostic v. Rainey, 970 F.Supp.2d 456, 460 (E.D. Va. 2014)), and that their state laws defining marriage as a man-woman union achieve[ ] the same result as laws banning interracial marriage (Kitchen v. Herbert, 961 F.Supp. 1181, 1215 (D. Utah 2013)). They have been instructed that [w]e are a better people than what these laws represent, and it is time to discard them into the ash heap of history. Whitewood v. Wolf, __ Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 21 of 24 22 F.Supp.2d __, 2014 WL 2058105 at *16 (M.D. Pa. May 20, 2014). The views expressed in those opinions are, no doubt, sincere. But they forget the principle that our Constitution is made for people of fundamentally differing views. Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting). In recent times, states have engaged in a deliberative process that enable[s] [their] citizens to discuss and weigh arguments for and against same-sex marriage. Windsor, 133 S. Ct. at 2689. That process, as it stands today, reflects the differing views of the American people about the meaning of marriage: a minority of states have enlarged the definition to include same-sex couples, while most have not. The recent decisions striking down marriage laws, however, wrongly insist that [this] difficult question of public policy must be taken from the reach of the voters, and thus moved from the realm of public discussion, dialogue, and debate. Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014) (plurality op. of Kennedy, J.). Those decisions do not properly enforce the Constitution; instead, they demean[ ] the democratic process. Id. They do not expand freedom; they reduce it. The decision of Louisianas citizens in 2004 to retain the definition of marriage as a man-woman union was without doubt a proper exercise of [their] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended. Windsor, 133 S. Ct. at 2692. Therefore, defendants respectfully ask the Court to grant summary judgment in favor of defendants and against plaintiffs on all of their claims.
Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 22 of 24 23 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
J. Michael Johnson Law Offices of Mike Johnson, LLC 2250 Hospital Drive Beene Office Park, Suite 248 Bossier City, LA 71111 Phone: (318) 658-9456 Fax: (318) 658-9605
Attorneys for Defendants
Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 23 of 24 24 CERTIFICATE OF SERVICE I hereby certify that on July 16, 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 120 Filed 07/16/14 Page 24 of 24 TABLE OF CONTENTS
I. The Constitution does not compel Louisiana to adopt same-sex marriage ................................................................................................................. 2
A. Louisiana has sovereign authority over its domestic relations law ............... 2
B. The Tenth Circuit mistakenly created a due-process right to marry someone of the same sex .................................................................................. 4
1. Kitchen dismisses federalism as a prudential concern ........................... 4
2. Kitchen misapplies the Supreme Courts right-to-marry cases ................ 7
3. Kitchen misapplies the Supreme Courts right-to-privacy cases .............. 12
II. Defendants are entitled to summary judgment on plaintiffs compelled speech claim ........................................................................................................... 15
Collins v. Harker Heights, 503 U.S. 115 (1992) ................................................................................................... 9
Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) ..................................................................................... 11
Cruzan v. Director, 497 U.S. 261 (1990) ................................................................................................. 11
Geiger v. Kitzhaber, __ F.Supp.2d __, 2014 WL 2054264 (D. Ore. May 19, 2014) ................................. 21
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ................................................................................................. 18
Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................................................................. 12
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........................................................................................ 13
Jackson v. Abercrombie, 884 F.Supp.2d 1065 (D. Hawaii 2012) ................................................. 8, 9, 10, 14-15
Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 (10th Cir. June 25, 2014) ............................... passim
Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013) ................................................................... 6, 21
Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999 (D. Idaho 2014) ............................................... 7 Case 2:13-cv-05090-MLCF-ALC Document 120-1 Filed 07/16/14 Page 2 of 5 3
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................... 12, 13, 14, 15
Lochner v. New York, 198 U.S. 45 (1905) ................................................................................................... 22
Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ................................................................................. 13
Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011) ........................................................................... 10, 15
Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................................. 7, 8, 11
Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992) ........................................................................................... 12, 14
Reno v. Flores, 507 U.S. 292 (1993) ................................................................................................... 9
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006) ........................................................................... 16, 17, 18, 20, 21
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014) ............................................................................................. 22
Texas v. Johnson, 491 U.S. 397 (1989) ................................................................................................. 20
Turner v. Safely, 482 U.S. 78 (1987) ..................................................................................... 7, 8, 10, 11
United States v. Arnold, 740 F.3d 1032 (5th Cir. 2014) ........................................................................... 19, 20
United States v. OBrien, 391 U.S. 367 (1968) ................................................................................................. 20
United States v. Sindel, 53 F.3d 874 (8th Cir. 1995) ..................................................................................... 19
Case 2:13-cv-05090-MLCF-ALC Document 120-1 Filed 07/16/14 Page 3 of 5 4 United States v. Windsor, 133 S. Ct. 2675 (2013) ..................................................................................... passim
Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) ................................................................. 17, 18, 20, 21
Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................................................... passim
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) ........................................................................................... 17, 19
Whitewood v. Wolf, __ F.Supp.2d __, 2014 WL 2058105 (M.D. Pa. May 20, 2014) ......................... 21-22
Wolf v. Walker, __ F.Supp.2d __, 2014 WL 244844 (W.D. Wis. June 6, 2014) ....................... 6, 7, 21
Wooley v. Maynard, 430 U.S. 705 (1977) ........................................................................................... 17, 19
Zablocki v. Redhail, 434 U.S. 374 (1978) ..................................................................................... 7, 8, 9, 11
Statutes Defense of Marriage Act, 110 Stat. 2419 ............................................................................................................ 2
Rules FED. R. CIV. PROC. 56 ...................................................................................................... 1
Constitutional Provisions U.S. Const. art. IV .......................................................................................................... 1 Case 2:13-cv-05090-MLCF-ALC Document 120-1 Filed 07/16/14 Page 4 of 5 5
U.S. Const. amend. I .................................................................................... 15, 16, 20-21
U.S. Const. amend. XIV .............................................................................................. 2, 3
Other Authorities IRS Revenue Ruling 2013-17 ....................................................................................... 17