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UNITED STATES DISTRICT COURT

for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


COMPLAINT

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, a person of full age and majority who is a resident of Orleans Parish and
respectfully represents:
1.
Made defendant herein is James D. Caldwell in his official capacity as Attorney General
for the State of Louisiana.
2.
Venue is proper in the United States District Court for the Eastern District of Louisiana
because an Orleans Parish resident is seeking to have a provision of the Louisiana Constitution
and an article of the Louisiana Civil Code declared unconstitutional as violating his rights as an
American Citizen confirmed and preserved under the Constitution of the United States.
3.
This court has jurisdiction over the subject matter of this suit because it is a constitutional
challenge invoking the Full Faith and Credit and Supremacy Clauses of the Constitution of the
United States.
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Petition for Provisions to be Declared Unconstitutional
Robicheaux v. Caldwell
Page 2
4.
Defendant, James D. Caldwell is the Attorney General for the State of Louisiana.
5.
Notice requirements under Federal Rule 5.1 have been met in this constitutionality
challenge by serving the Louisiana Attorney General and making him the named defendant in his
official capacity.
6.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.

7.
Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

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Petition for Provisions to be Declared Unconstitutional
Robicheaux v. Caldwell
Page 3
Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

8.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

9.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

10.
Your Petitioner, Jonathan P. Robicheaux, a man, legally married Derek D. Penton, a man,
in Clayton County, Iowa on September 23, 2012. A copy of the marriage certificate is attached
hereto as Exhibit A.
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Petition for Provisions to be Declared Unconstitutional
Robicheaux v. Caldwell
Page 4
11.
The officials and courts of Louisiana are barred from recognizing Jon Robicheaux
marriage to Derek Penton by Section 15 of the Louisiana Constitution and Louisiana Civil Code
article 3520.
12.
Jon Robicheaux cannot file a joint tax return with Derek Penton.
13.
If Derek Penton dies in Louisiana before Jon Robicheaux, Jon Robicheaux will not be
entitled to receive the benefits or protections of receiving parts of Derek Pentons estate provided
to surviving spouses who are the widow or widower of a two-sex marriage whether they are
married in Louisiana or another state, territory, province or country.
14.
If there become any irreconcilable differences such that Jon Robicheaux desires to
divorce Derek Penton, Jon Robicheaux is barred from filing a Petition for Divorce in Louisiana.
15.
Any couple that is made up of two United States Citizens who have properly observed a
states requirements to become married and have been issued a marriage certificate therefore
have a right under the United States Constitution to have the marriage recognized by all states in
which the couple decides to live.
16.
Louisianas failure to recognize and give full faith and credit to Iowas marriage
certificate violates the Full Faith and Credit Clause of the United States Constitution.
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Petition for Provisions to be Declared Unconstitutional
Robicheaux v. Caldwell
Page 5
17.
As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."

WHEREFORE, petitioner prays that after all legal delays and due proceedings are had
there be judgment, finding that Section 15 of the Louisiana Constitution and Louisiana Civil
Code article 3520 unconstitutional, directing those provisions abrogated and ordering the courts
and officials of the State of Louisiana to give full faith and credit to all marriage certificates
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Petition for Provisions to be Declared Unconstitutional
Robicheaux v. Caldwell
Page 6
legally issued in any of the several states or countries with which the United States has a treaty
requiring such full faith and credit.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiff, Jon Robicheaux





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UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


MOTION TO PROCEED WITHOUT PAYING FEES IN FORMA PAUPERIS


NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, and moves this Honorable Court to allow him to proceed without paying fees
due to his financial condition. In support of this motion, the Movant has attached a verified
application declaring his income and expenses.
WHEREFORE, petitioner prays that he be granted an Order, allowing him to proceed
without paying costs, In Forma Pauperis.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiff, Jon Robicheaux


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Case 2:13-cv-05090-MLCF-ALC Document 2-1 Filed 07/16/13 Page 1 of 2
Case 2:13-cv-05090-MLCF-ALC Document 2-1 Filed 07/16/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO PROCEED IN FORMA PAUPERIS

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby authorized to proceed without paying filing fees In Forma Pauperis.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of July, 2013.

_______________________________
JUDGE


Case 2:13-cv-05090-MLCF-ALC Document 4 Filed 07/22/13 Page 1 of 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OFFICE OF THE CLERK
WILLIAM W. BLEVINS 500 POYDRAS ST., ROOM C-151
CLERK NEW ORLEANS, LA 70130
J ULY 23, 2013
TO: Scott J . Spivey RE: CA: 13-5090 F(5)
Scott J Spivey, Esq
A Professional Law Corporation
815 Dauphine Street, Suite D
New Orleans, LA 70116
The application to proceed in forma pauperis pursuant to Title 28, USC, Section 1915, in the
above-captioned action has been granted by the Court.
Rule 4 of the Federal Rules of Civil Procedure provides for service of the summons and
complaint by the United States Marshal at the request of a party permitted to proceed in forma
pauperis. If you wish to have service effected by the U. S. Marshal, you must furnish the
enclosed certified copy of the Courts Order granting leave to proceed in forma pauperis along
with a completed summons, USM Form 285 and a copy of the complaint for each defendant to
be served.
The USM 285 Forms can be obtained from the U. S. Marshals Office at the address listed
below:
500 Poydras Street
Hale Boggs Federal Building, Room B724
New Orleans, Louisiana 70130
Forward the completed summon(s), complaint(s) and USM 285 Form(s) and the certified copy of
the Pauper Order to the U.S. Marshals Office, 500 Poydras Street, Hale Boggs Federal Building,
Rm. B724, New Orleans, Louisiana 70130.
William W. Blevins
Clerk, U.S. District Court
Eastern District of Louisiana
By: _______________________________
Deputy Clerk
Case 2:13-cv-05090-MLCF-ALC Document 4-1 Filed 07/22/13 Page 1 of 1
AO 399 (01/09) Waiver of the Service ofSuJ11J11ons
UNITED STATES DISTRICT COURT
forthe
Eastern DistrictofLouisiana
Jonathan P. Robicheaux
Plaintiff
v. Civil ActionNo. 13-cv-05090
James D. Caldwell, in his officialcapacityas LAAG
Defendant
WAIVER OF THE SERVICE OF SUMMONS
To: ScottJ. Spivey
(Name oftheplaintiff'sallorneyorunrepresentedplaintiff)
Ihave received yourrequest to waiveservice ofasummons in this action alongwithacopy ofthe complaint,
twocopies ofthis waiverform, and aprepaid means ofreturningone signed copy ofthe form toyou.
I, orthe entity Irepresent, agree to save the expense ofservingasummons and complaintin this case.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's
jurisdiction,and the venueofthe action, butthat Iwaiveany objectionsto the absenceofasummonsorofservice.
Ialso understand that I, orthe entity Irepresent, mustfile and serve an answeroramotion underRule 12 within
60 days from 07/25/2013 ,the date when this request was sent (or90 days ifitwas sent outside the
UnHed States). [f [ fa; Ito do so, a de fault judgmenl W; [[ be ente"d aga; nsl me 0' Ihe enI; Iy I" esent -1", IJ
Date: 07/29/2013 --f;tL.JLf/
James D. Caldwell, in his official capacityas LAAG
Printedname ofpartywaivingservice ofsummons
An eli ue Duhon Freel
Printedname
P.O. Box94005
Baton Rouge, LA 70804
(Physical-1885 North Third Street)
Address
freela a .state.la.us
E-mailaddress
(225)326-6029
Telephone number
Duty to Avoid Unnecessary Expenses of Serving a Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons
and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in
the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.
"Good cause" does notinclude a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has
no jurisdiction over this matter or over the defendant or the defendant's property.
[fthe waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of
a summons or of service.
If you waive service, then you must. within the time speci fied on the waiver form. serve an answer or a motion under Rule 12 on the plainti ff
and file a copy with the court. By signing and returning the waiver form. you are allowed more time to respond than if a summons had been served.
Case 2:13-cv-05090-MLCF-ALC Document 6 Filed 07/29/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. ________________

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, and moves this Honorable Court for leave to file an amended complaint
pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure. More particularly, as the
Court is well-aware, Rule 15(a)(1)(A) states that A party may amend its pleading once as a
matter of course within: (A) 21 days after serving it . . . In this matter, the record will reflect
that the Defendant, James D. Caldwell waived service on July 29, 2013 within the twenty-one
day time limit for an automatic right to amend without the need to show the best interest of
justice.

WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiff, Jon Robicheaux

Case 2:13-cv-05090-MLCF-ALC Document 7 Filed 08/08/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. ________________

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiffs Motion for Leave to File Amended
Complaint pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure.
SUMMARY OF PROCEEDINGS
The Complaint was filed July 16, 2013, along with a Motion for Leave to Proceed in
forma pauperis. The Order on Motion for Leave to Proceed in forma pauperis was signed on
July 22, 2013. The Summons was issued July 23, 2013. The Defendant, James D. Caldwell,
agreed to waiver service. The Waiver of Service was executed and filed on July 29, 2013.
SUMMARY OF LAW
Rule 15 of the Federal Rules of Civil Procedure is the rule regarding Amended and
Supplemental Pleadings. It reads in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
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(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.

APPLICATION OF LAW TO FACTS

The Motion for Leave to Amend Pleadings was filed on August 7, 2013, nine days after
the Defendant waived service. The Defendant has sixty days after waiver of service to Answer
the Complaint or file other responsive pleadings which is September 27, 2013. Because the
Motion for Leave to Amend Pleadings is within the twenty-one day time allowance, it is
respectfully suggested that Jon Robicheaux has a right to amend his complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiff, Jon Robicheaux

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UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of August, 2013.

_______________________________
JUDGE


UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, a person of full age and majority who is a resident of Orleans Parish, residing
in the United States District Court, Eastern District of Louisianas district, and respectfully
represents:
THE PARTIES
1.
Made defendant herein is James D. Caldwell in his official capacity as Attorney General
for the State of Louisiana, thereby meeting notice requirements under Federal Rule 5.1 for this
constitutionality challenge.
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after having
been in a committed relationship together since 2005 commingling funds, living together and
holding themselves out as monogamous partners that are living together as one union.
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Amended Complaint - Robicheaux v. Caldwell
Page 2
JURISDICTION AND VENUE
3.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, and the United States
Constitution, including without limitation the Fourteenth Amendment.
4.
Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b) because the Defendant performs his official duties in this district.
FACTUAL BACKGROUND
5.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.
The State Laws at Issue
6.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
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Amended Complaint - Robicheaux v. Caldwell
Page 3
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.
7.
Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

8.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
9.

Same-sex couples such as Plaintiff and his Husband are identical to opposite-sex couples
in all of the characteristics relevant to marriage.
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Amended Complaint - Robicheaux v. Caldwell
Page 4
10.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness
11.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
12.
The Plaintiff and his Husband and other same-sex couples in Louisiana, if their marriages
in other states in which marriage is legal were recognized, would benefit no less than opposite-
sex couples from the many legal protections and the social recognition afforded to married
couples.
13.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
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Page 5
14.
The exclusion from marriage undermines the Plaintiffs ability to achieve the life goals
and dreams with his Husband, Derek Penton; threatens their mutual economic stability; and
denies them "a dignity and status of immense import." United States v. Windsor, No. 12-307,
Slip Op., at 18 (U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couple and Their Families

15.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.
16.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
17.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
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Amended Complaint - Robicheaux v. Caldwell
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live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
for Family Medical Leave Act). Thus, even Plaintiff and his Husband, who are already married,
cannot access such federal protections as long as Louisiana refuses to recognize their existing
marriage.
18.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
19.
Although the Plaintiff is in a long-term committed relationship, he, his Husband and
other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples
together during times of crisis or conflict.
20.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
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Amended Complaint - Robicheaux v. Caldwell
Page 7
21.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.
22.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
23.
The plaintiff recognizes that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

24.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
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Amended Complaint - Robicheaux v. Caldwell
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25.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

26.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
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Amended Complaint - Robicheaux v. Caldwell
Page 9
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."

CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

27.
Plaintiff incorporates by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
28.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
29.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
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Amended Complaint - Robicheaux v. Caldwell
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30.
Louisiana law denies the Plaintiff and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.
31.
The State can demonstrate no important interest to justify denying the Plaintiff this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
32.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
33.
The Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by
the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

34.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
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Amended Complaint - Robicheaux v. Caldwell
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35.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
36.
By denying the Plaintiff and his Husband and other lesbian and gay couples the ability
have their out-of-state marriages recognized, the State, through Defendant, disadvantages lesbian
and gay people on the basis of their sexual orientation. It denies them significant legal
protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom
same-sex couples interact, including their own children," that their relationship is "less worthy"
than the relationships of others. Windsor, Slip Op., at 25.
37.
Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
38.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
39.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
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Amended Complaint - Robicheaux v. Caldwell
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40.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
41.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
42.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
43.
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Amended Complaint - Robicheaux v. Caldwell
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For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.
44.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
45.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

46.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
47.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
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Amended Complaint - Robicheaux v. Caldwell
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48.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
49.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
50.
The marriage of Plaintiff and his Husband, for example, is denied recognition solely
because they are both men.
51.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
52.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
53.
The Defendants can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
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Amended Complaint - Robicheaux v. Caldwell
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54.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.
55.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

56.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
57.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

58.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
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Amended Complaint - Robicheaux v. Caldwell
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the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

59.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
60.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution;
2. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution;
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Amended Complaint - Robicheaux v. Caldwell
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3. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United
States Constitution.
4. Enter a permanent injunction enjoining Defendants from denying the Plaintiff and his
Husband and all other same-sex couples the benefits of marriage and to recognize
marriages validly entered into by the Plaintiff and his Husband and other same-sex
couples outside of the State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiff, Jon Robicheaux





Case 2:13-cv-05090-MLCF-ALC Document 7-3 Filed 08/08/13 Page 17 of 17


UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of August, 2013.

_______________________________
JUDGE


9th
Case 2:13-cv-05090-MLCF-ALC Document 9 Filed 08/09/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, a person of full age and majority who is a resident of Orleans Parish, residing
in the United States District Court, Eastern District of Louisianas district, and respectfully
represents:
THE PARTIES
1.
Made defendant herein is James D. Caldwell in his official capacity as Attorney General
for the State of Louisiana, thereby meeting notice requirements under Federal Rule 5.1 for this
constitutionality challenge.
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after having
been in a committed relationship together since 2005 commingling funds, living together and
holding themselves out as monogamous partners that are living together as one union.
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Amended Complaint - Robicheaux v. Caldwell
Page 2
JURISDICTION AND VENUE
3.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, and the United States
Constitution, including without limitation the Fourteenth Amendment.
4.
Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b) because the Defendant performs his official duties in this district.
FACTUAL BACKGROUND
5.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.
The State Laws at Issue
6.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
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Amended Complaint - Robicheaux v. Caldwell
Page 3
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.
7.
Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

8.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
9.

Same-sex couples such as Plaintiff and his Husband are identical to opposite-sex couples
in all of the characteristics relevant to marriage.
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Amended Complaint - Robicheaux v. Caldwell
Page 4
10.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness
11.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
12.
The Plaintiff and his Husband and other same-sex couples in Louisiana, if their marriages
in other states in which marriage is legal were recognized, would benefit no less than opposite-
sex couples from the many legal protections and the social recognition afforded to married
couples.
13.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
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Amended Complaint - Robicheaux v. Caldwell
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14.
The exclusion from marriage undermines the Plaintiffs ability to achieve the life goals
and dreams with his Husband, Derek Penton; threatens their mutual economic stability; and
denies them "a dignity and status of immense import." United States v. Windsor, No. 12-307,
Slip Op., at 18 (U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couple and Their Families

15.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.
16.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
17.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
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Amended Complaint - Robicheaux v. Caldwell
Page 6
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
for Family Medical Leave Act). Thus, even Plaintiff and his Husband, who are already married,
cannot access such federal protections as long as Louisiana refuses to recognize their existing
marriage.
18.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
19.
Although the Plaintiff is in a long-term committed relationship, he, his Husband and
other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples
together during times of crisis or conflict.
20.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
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Amended Complaint - Robicheaux v. Caldwell
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21.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.
22.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
23.
The plaintiff recognizes that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

24.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
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Amended Complaint - Robicheaux v. Caldwell
Page 8
25.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

26.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
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Amended Complaint - Robicheaux v. Caldwell
Page 9
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."

CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

27.
Plaintiff incorporates by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
28.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
29.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
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Amended Complaint - Robicheaux v. Caldwell
Page 10
30.
Louisiana law denies the Plaintiff and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.
31.
The State can demonstrate no important interest to justify denying the Plaintiff this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
32.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
33.
The Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by
the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

34.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
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Page 11
35.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
36.
By denying the Plaintiff and his Husband and other lesbian and gay couples the ability
have their out-of-state marriages recognized, the State, through Defendant, disadvantages lesbian
and gay people on the basis of their sexual orientation. It denies them significant legal
protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom
same-sex couples interact, including their own children," that their relationship is "less worthy"
than the relationships of others. Windsor, Slip Op., at 25.
37.
Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
38.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
39.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
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Amended Complaint - Robicheaux v. Caldwell
Page 12
40.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
41.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
42.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
43.
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Amended Complaint - Robicheaux v. Caldwell
Page 13
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.
44.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
45.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

46.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
47.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
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Amended Complaint - Robicheaux v. Caldwell
Page 14
48.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
49.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
50.
The marriage of Plaintiff and his Husband, for example, is denied recognition solely
because they are both men.
51.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
52.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
53.
The Defendants can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
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Amended Complaint - Robicheaux v. Caldwell
Page 15
54.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.
55.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

56.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
57.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

58.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
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Amended Complaint - Robicheaux v. Caldwell
Page 16
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

59.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
60.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution;
2. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution;
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Amended Complaint - Robicheaux v. Caldwell
Page 17
3. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United
States Constitution.
4. Enter a permanent injunction enjoining Defendants from denying the Plaintiff and his
Husband and all other same-sex couples the benefits of marriage and to recognize
marriages validly entered into by the Plaintiff and his Husband and other same-sex
couples outside of the State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiff, Jon Robicheaux





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-MLCF-ALC
Aug 13 2013
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-MLCF-ALC
AO 399(01/09) WaIverofthe Serviceof Summons
UNITED STATESDISTRICTCOURT
for the
EasternDistrictofLouisiana
Jonathan P. Robicheaux
Plaintiff
v.
JamesD. Caldwell, in his official capacityasLA AG
Dejendant
)
)
)
)
)
CiviIActionNo. 13-cv-05090
WAIVEROFTHESERVICEOFSUMMONS
To: ScottJ. Spivey
(Name oj the plaintiff's allorney or unrepresented plaintiff)
Ihave received yourrequesttowaiveserviceofa summons in this action alongwithacopyofthe complaint,
two copiesofthis waiverform, and a prepaid meansofreturningonesignedcopy ofthe form toyou.
I, orthe entity Irepresent, agree to save the expenseofservingasummons and complaint in thiscase.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's
jurisdiction,and thevenueoftheaction, butthatIwaiveany objections to the absenceofasummonsorofservice.
Ialso understandthat I, orthe entity Irepresent, mustfile and servean answerora motion underRule 12 within
60days from 08/13/2013 ,thedatewhenthisrequestwassent(or90 days ifit wassentoutsidethe
United States).
08/16/2013 Date:
-_.::..=-'--..:...:"-=-':....:....::'----
James D. Caldwell, in hisofficial capacityasLA AG
j
IfIfail todoso, adefaultjudgmentwill beentered against me orthe entity Irepresent.
~
______..:...A..::..n'>'giili9ue Duhon Freel
Printed name ojparty waiving service ojsummons Printed name
P.O. Box 94005
Baton Rouge, LA 70804
(Physical-1885 North Third Street)
Address
freela@ag.state.la.us
E-mail address
____->(225) 326-6029
Telephone number
Dutyto Avoid UnnecessaryExpensesofServinga Summons
Rule4ofthe FederalRulesofCivil Procedure requires certain defendants to cooperatein saving unnecessaryexpenses of serving asummons
and complaint. A defendantwho is located in the United Statesand who fails to return asignedwaiverofservice requested by aplaintifflocated in
the United Stateswill be required to pay the expensesofservice, unless the defendantshowsgoodcause for the failure.
"Goodcause"doesnot includea beliefthat the lawsuitis groundless,orthat ithas been broughtin an impropervenue, orthatthecourthas
nojurisdictionoverthis matteroroverthe defendantorthe defendant'sproperty.
Ifthe waiveris signedand returned, youcanstill make theseandall otherdefensesandobjections,butyoucannotobjecttotheabsenceof
asummonsorofservice.
If youwaiveservice,thenyoumust,withinthe time specifiedonthewaiverform, servean answeroramotionunderRule 12 ontheplaintiff
and file acopy with the court. Bysigningand returning the waiverform, youare allowedmore time to respond thanifasummonshadbeenserved.
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UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN OPPOSITION TO
THE ATTORNEY GENERALS MOTION TO DISMISS, OR IN THE
ALTERNATIVE, MOTION TO TRANSFER FOR IMPROPER VENUE

MAY IT PLEASE THE COURT:
This matter comes on for cause on James D. Caldwell, the Louisiana Attorney Generals
Motion to Dismiss your Respondents Complaint and Amended Complaint for alleged improper
venue pursuant to Fed. R. Civ. P. 12(b)(3) or, in the alternative, to transfer for improper venue
pursuant to 28 USC 1391(b)(1) and (2), 1406(a) and/or 1404(a), including forum non
conveniens for the litigants and witnesses. In this regard, the Attorney General specifically states
that he has not made a general appearance.
As the Court is well-aware, this is a normal first volley by the State to dismiss or have the
matter transferred to the Middle District of Louisiana. Robicheaux, your Respondent, has no
objection to Your Honor handling this matter and must respectfully submit that the officials of
the State of Louisiana should not be able to disturb the lottery process of assigning presiding
judges when it is convenient for their purposes.
Case 2:13-cv-05090-MLCF-ALC Document 14 Filed 10/02/13 Page 1 of 7


Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue
Robicheaux v. Caldwell
Page 2
Regardless of the foregoing, it is conceded and agreed that the question of venue is
governed by the general venue statute at 28 USC 1391(b). In this regard, it is not alleged that
the Attorney General resides in the Eastern District. Rather, paragraph (2) is the basis on which
your Respondent relies a judicial district in which a substantial part of the events or omission
giving rise to the claim occurred, or a substantial part of property that is the subject of the action
is situated. The injury for which your Respondent seeks recovery is suffered in the Eastern
District of Louisiana, given that is where he and his husband reside and this is where they are
and will be denied recognition and the benefits of a married couple. For example, when your
Respondent recently suffered acute gall bladder complications, it is here where he was refused
medical care with his husbands physician, who does not provide care to Medicaid recipients,
because your Respondent is on Medicaid as a result of not being able to secure spousal benefits
on his husbands health insurance.
The Attorney Generals sole reliance upon residency and enforcement bears a striking
resemblance to the Louisiana Insurance Commissioners argument in Globe Glass & Mirror Co.
v. Brown, 888 F.Supp 768 (E.D.La. 1995) in which the Insurance Commissioner contended that
the Eastern District of Louisiana was an improper venue for the suit for declaratory and
injunctive relief because he maintained his official resident in the Middle District of Louisiana.
The Court stated the following:
Brown contends that the Eastern District of Louisiana is an improper venue
for this suit for declaratory and injunctive relief because he maintains his official
residence in the Middle District of Louisiana, relying on 28 U.S.C. 1391(b) and
Butterworth v. Hill, 114 U.S. 128, 5 S.Ct. 796, 29 L.Ed. 119 (1885).

However, defendant relies on the pre-1990 version of 1391(b), which
provided that venue was proper only in the district where all the defendants
Case 2:13-cv-05090-MLCF-ALC Document 14 Filed 10/02/13 Page 2 of 7


Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue
Robicheaux v. Caldwell
Page 3
resided or in the judicial district where the claim arose. 28 U.S.C. 1391(b)
(before the 1990 amendments). See Leroy v. Great Western United Corp., 443
U.S. 173, 184, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979). In 1990, Congress
amended the venue statute, replacing the language the judicial district in
which the claim arose with a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred. 28 U.S.C. 1391(b)(2).
Under the amended statute it is now absolutely clear that there can be more than
one district in which a substantial part of the events giving rise to the claim
occurred. Wright & Miller, Federal Practice and Procedure: Civil 2d 3806
(1994 supp.). Therefore, under the current version of the venue statute, an action
may be brought in the district where any defendant resides, if all defendants
reside in the same state, 28 U.S.C. 1391(b)(1), or in any district in which a
substantial part of the events giving rise to the claim occurred. 28 U.S.C.
1391(b)(2). According to the affidavit of Mary Jo Prigge, a substantial part of
USA-GLASs existing Louisiana business occurs in the Eastern District.2
Therefore, this suit is properly brought in this district. See Farmland Dairies v.
McGuire, 771 F.Supp. 80 (S.D.N.Y.1991) (venue proper in district where milk
distributions primarily occur in action seeking declaratory relief as to
constitutionality of order issued by state commissioner for application of
compensatory payments).
Glass & Mirror Co. v. Brown, 888 F.Supp 768, 770 (E.D.La. 1995).
In the case at hand, the argument, it is respectfully suggested, is even stronger for
allowing your Respondent to maintain his suit in the Eastern District of Louisiana, where he and
his husband rely. Specifically, this is a complaint, in essence, against one provision in the
Louisiana Constitution and another in the Louisiana Civil Code affecting all residents in
Louisiana and specifically directing, as it applies to the Constitutional provision, all officials and
courts of the State of Louisiana to give no recognition to marriages of same-sex couples who
were legally married in another jurisdiction. In this regard, the Attorney Generals enforcement
is simply as the defender of the Louisiana Constitution and the Louisiana Civil Code which is
his duty. And such enforcement extends, for example, to the Eastern District of Louisiana, when
the officials in the Louisiana National Guard are barred from enforcing a United States directive
to provide military benefits to all service men and women who carry Department of Defense
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Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue
Robicheaux v. Caldwell
Page 4
Identification as they relate to same-sex couples. The Governor and the Attorney General
ensured that the orders of the United States Department of Defense were refused by and no
assistance was given by Officers, Enlisted personnel and civilians in the Louisiana National
Guard. Clearly, the enforcement by the Attorney General of these provisions extends beyond the
Middle District of Louisiana.
Interestingly, the Attorney General cites to Florida Nursing Home Association v. Page,
616 F.2d 1355, 1360 (5
th
Cir. 1980) [a pre-1990 case] for the frequently stated rule of law:
The general rule in suits against public officials is that a defendants residence for venue is the
district where he performs his official duties. However, the language of the Florida Nursing
Home Association case following this quote and the holding of the Court clearly assists your
Respondents, rather than your Movants, position. The Court stated as follows:
The general rule in suits against public officials is that a defendants residence for
venue purpose is the district where he performs his official duties. 1 Moores
Federal Practice P 0.142(5.-1-2), at 1396 (2d ed. 1979). See, e. g., Butterworth v.
Hill, 114 U.S. 128, 132, 5 S.Ct. 796, 798, 29 L.Ed. 119 (1885); ONeill v. Battisti,
472 F.2d 789, 791 (6
th
Cir. 1972), cert. denied sub nom. Heitzler v. ONeill, 411
U.S. 964, 93 S.Ct. 2142, 36 L.Ed.2d 685 (1973). A number of the cases applying
this principle have involved federal officials or agencies and have found only one
official residence. See, e. g., Ernst v. Secretary of the Interior, 244 F.2d 344, 17
Alaska 133 (9
th
Cir. 1957); Trueman Fertilizer Co. v. Larson, 196 F.2d 910 (5
th

Cir. 1952); Hartke v. Federal Aviation Administration, 369 F.Supp. 741
(E.D.N.Y.1973).

It has been held, however, that a state agency or official does not necessarily
have a single residence. See Buffalo Teachers Federation, Inc. v. Helsby, 426
F.Supp. 828 (S.D.N.Y.1976). In Buffalo Teachers Federation the court noted that
in suits against federal agencies, the federal government would be faced with
serious difficulties if it were forced to answer complaints in a multitude of forums
and forum shopping would be greatly encouraged if suits could be brought in any
district where a subordinate departmental officer resides. Such problems,
however, are significantly less serious in the context of a suit against a state
governmental entity or official. Id. at 829. In the state context, there is little
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Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue
Robicheaux v. Caldwell
Page 5
threat of inconvenience or even forum shopping, at least sufficient to warrant a
blanket rule that there may never be more than a single residence. Id. In Buffalo
Teachers Federation the court determined that although the state agency involved
had its central headquarters in the Northern District of New York, venue was not
lacking in the Southern District where suit was brought. The agency involved
maintained a field office in the Southern District and a significant portion of its
business was conducted from that office.

Here, Florida DHRS, though headquartered in the Northern District of
Florida, maintains a large office in the Southern District and much of its business
is transacted from that office. Furthermore, the venue statute makes it clear that
the residence of defendants does not provide the [Page 1361] only basis for venue.
Venue is also proper in the district where the claim arose. Though the legislative
history of section 1391(b) fails to suggest what the draftsmen thought about the
question of where a claim arises, 1 Moores Federal Practice P 0.142(5.-2), at
1423 (2d ed. 1979), when the statute was amended to extend venue to a district
in which the claim arose, the purpose was to facilitate the disposition of . . .
claims by providing . . . a more convenient forum to the litigants and witnesses
involved. H.R.Rep.No.1893, 89
th
Cong., 2d Sess. 2 (1966). Thus, where the
claim arose should be ascertained by advertence to events having operative
significance in the case, and a commonsense appraisal of the implications of those
events for accessibility to witnesses and records. Lamont v. Haig, 590 F.2d 1124,
1134 (D.C.Cir.1978). This is not to suggest that only a single district can satisfy
the statutory standard with respect to any given claim. Often, the factors deemed
determinative might well indicate the suitability of several forums. See, e. g.,
Commercial Lighting Products, Inc. v. United States District Court, 537 F.2d
1078, 1080 (9
th
Cir. 1976); Tefal, S.A. v. Products International Co., 529 F.2d
495, 496-97 (3d Cir. 1976); Gardner Engineering Corp. v. Page Engineering Co.,
484 F.2d 27, 32-33 (8
th
Cir. 1973). In any case, the court should not oppose the
plaintiffs choice of venue if the activities that transpired in the district where suit
is brought were not insubstantial and the forum is a convenient one balancing the
equities and fairness to each party. Lamont v. Haig, supra, 590 F.2d at 1134 n. 62;
Weil v. New York State Department of Transportation, 400 F.Supp. 1364, 1365
(S.D.N.Y.1975).

Applying this standard, then, it is clear that venue properly lies in this matter
in the Southern District of Florida. Not only does appellant maintain a large office
there but the payments which Golden Isles is seeking were allegedly due it within
the Southern District where Golden Isles and the other plaintiffs-appellees are
located. This is sufficient in the circumstances of this case to justify the placing of
venue in the Southern District of Florida.
Florida Nursing Home Association v. Page, 616 F.2d 1355, 1360 61 (5
th
Cir. 1980).
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Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue
Robicheaux v. Caldwell
Page 6
As it applies to the argument of Forum Non Conveniens, the procedural requirements of
this lawsuit seem to be more suited for the convenience of the potential witnesses, if any, in the
Eastern District of Louisiana. While, at first blush, it appears that there is no substantial dispute
to the facts alleged in the complaint and thus no need for a credibility determination by a fact
finder, if the Court found a need and cause for the parties to present witnesses to testify, then the
issues would likely be damages, harm and case and controversy. In so doing, your Respondent
would be compelled to show damages and harm as a result of his marriage not be recognized by
the officials and courts of Louisiana and as a result of the Constitutional provisions and the Civil
Code article at issue, for example his inability to secure coverage by his husbands health
insurance policy. Such damage and harm occurs in the city where he resides and in the
immediate vicinity all of which are located in the Eastern District of Louisiana. Your
Respondent can think of no necessary witnesses that are located in the Middle District of
Louisiana for either the Respondent or the Mover. Accordingly, it is respectfully submitted that
the convenient forum is the Eastern District of Louisiana.

CONCLUSION

Based upon the foregoing, it is respectfully suggested that the Attorney Generals Motion
to Dismiss under Rule 12(b)(3) for improper venue is without merit. It is further respectfully
suggested that any transfer would not serve any interest of justice or this Honorable Court.
WHEREFORE, petitioner prays that after due proceedings are had that the Attorney
Generals Motion be dismissed with prejudice.
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Memorandum In Opposition to the Motion to Dismiss, or in the Alternative, Motion to Transfer for Improper Venue
Robicheaux v. Caldwell
Page 7
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiff, Jon Robicheaux


CERTIFICATE OF SERVICE

I hereby certify that I have served upon Defense counsel of record a copy of the
foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill
at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on October 2, 2013, I electronically
filed the foregoing with the Clerk of Court by using the CM/EMF system, which will send a
notice of filing to all counsel of record.

_________________________
Scott J. Spivey, Esq.
Case 2:13-cv-05090-MLCF-ALC Document 14 Filed 10/02/13 Page 7 of 7
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX CI VI L ACTI ON
v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON " F"
LOUI SI ANA ATTORNEY GENERAL
ORDER
Thi s ci vi l r i ght s l awsui t chal l enges t he const i t ut i onal i t y of
Loui si ana' s ban agai nst same- sex mar r i age and i t s r ef usal t o
r ecogni ze same- sex mar r i ages cont r act ed i n ot her st at es. J onat han
Robi cheaux mar r i ed hi s same- sex par t ner i n I owa, but l i ves i n
Or l eans Par i sh, Loui si ana; he al l eges t hat Loui si ana' s def ense of
mar r i age amendment t o t he st at e const i t ut i on ( La. Const . ar t . 12,
15) and ar t i cl e 3520 of t he Loui si ana Ci vi l Code ( whi ch decr ees
t hat same- sex mar r i age vi ol at es Loui si ana' s st r ong publ i c pol i cy
and pr ecl udes r ecogni t i on of any such mar r i age cont r act f r om
anot her st at e) vi ol at e hi s f eder al const i t ut i onal r i ght s.
1
1
I n par t i cul ar , t he pl ai nt i f f al l eges t hat t he st at e' s
ban on same- sex mar r i age and r ef usal t o r ecogni ze t he mar r i age
cont r act he ent er ed i nt o i n I owa:
( 1) depr i ves hi mof hi s f undament al r i ght t o mar r y i n vi ol at i on of
t he U. S. Const i t ut i on' s Four t eent h Amendment Due Pr ocess Cl ause;
( 2) depr i ves hi mof equal pr ot ect i on of t he l aw i n vi ol at i on of t he
U. S. Const i t ut i on' s Four t eent h Amendment because i t const i t ut es
di scr i mi nat i on on t he basi s of sexual or i ent at i on and/ or sex; and
( 3) vi ol at es t he Ful l Fai t h and Cr edi t Cl ause of t he U. S.
1
Case 2:13-cv-05090-MLCF-ALC Document 15 Filed 10/16/13 Page 1 of 4
Bef or e t he Cour t i s t he At t or ney Gener al ' s mot i on t o di smi ss
or , i n t he al t er nat i ve, mot i on t o t r ansf er f or i mpr oper venue,
whi ch i s not i ced f or submi ssi on on Oct ober 16, 2013. The br i ef i ng
on t he i ssue of whet her venue i s pr oper i n t he East er n Di st r i ct of
Loui si ana i s i nadequat e.
2
Nei t her si de addr esses t he f undament al
st andar ds appl i cabl e t o venue chal l enges such as whi ch par t y bear s
t he bur den of est abl i shi ng pr oper venue;
3
nei t her si de acknowl edges
Const i t ut i on.
2
The At t or ney Gener al i nvokes t he gener al venue st at ut e,
28 U. S. C. 1391, but appear s t o r el y on t he pr e- amended ver si on of
t he st at ut e, whi ch, al t hough si mi l ar , no l onger appl i es. Sect i on
1391 was modi f i ed by t he Feder al Cour t s J ur i sdi ct i on and Venue
Cl ar i f i cat i on Act of 2011. Pub. L. No. 112- 63, 125 St at . 758; among
ot her amendment s, a r esi dency pr ovi si on i s f ound at 1391( c) .
Cur i ousl y, t he At t or ney Gener al appear s t o i nvoke st at e l aw as
appl i cabl e t o t he venue det er mi nat i on, whi ch seems i nappr opr i at e i n
ci vi l r i ght s cases. See Ar nol d v. Maynar d, 942 F. 2d 761, 762- 63
( 10
t h
Ci r . 1991) ; see al so Wr i ght , A. , Mi l l er , & E. Cooper , 14D Fed.
Pr ac. & Pr oc. 3806. 1 ( 3d ed. 2013) ( not i ng t hat " st at e l aw has no
appl i cat i on i n det er mi ni ng t he appl i cabi l i t y of t he f eder al venue
st at ut e" ) . The pl ai nt i f f , f or hi s par t , suggest s t hat he does not
asser t t hat venue i s pr oper because t he At t or ney Gener al r esi des i n
t he East er n Di st r i ct ; r at her , he aver s t hat he i nvokes t he
subst ant i al i t y t est cont ai ned i n 1391( b) ( 2) . Cur i ousl y, however ,
hi s amended compl ai nt cont ai ns but one al l egat i on concer ni ng venue
( " [ v] enue i s pr oper i n t he Uni t ed St at es Di st r i ct Cour t f or t he
East er n Di st r i ct of Loui si ana under 28 U. S. C. 1391( b) because t he
Def endant per f or ms hi s of f i ci al dut i es i n t hi s di st r i ct " ) , and he
ot her wi se f ai l s t o submi t any evi dence or suppl ement al al l egat i ons
t o advance t he venue det er mi nat i on.
3
I ndeed, t her e i s an i nconsi st ency i n t he case l i t er at ur e
t hat mi ght be advanced by adequat e br i ef i ng. See Ross v. Di gi oi a,
No. 11- 1827, 2012 WL 72703 ( E. D. La. J an. 10, 2012) ( Vance,
J . ) ( not i ng t hat " t he j ur i spr udence of f eder al di st r i ct cour t s i n
t he Fi f t h Ci r cui t on t he quest i on of whi ch par t y bear s t he bur den
of pr oof on a Rul e 12( b) ( 3) mot i on t o di smi ss f or i mpr oper venue i s
i nconsi st ent " , but concl udi ng t hat t he bur den i s on t he pl ai nt i f f
2
Case 2:13-cv-05090-MLCF-ALC Document 15 Filed 10/16/13 Page 2 of 4
t hat t he al l egat i ons i n t he compl ai nt ar e t aken as t r ue, t hat al l
conf l i ct s wi l l be r esol ved i n t he pl ai nt i f f ' s f avor ,
4
and t hat
f act s out si de t he compl ai nt wi l l be consi der ed when venue i s
chal l enged.
5
See Ambr aco I nc. v. Bosscl i p B. V. , 570 F. 3d 233, 238
( 5
t h
Ci r . 2009) , cer t . deni ed, 130 S. Ct . 1054 ( 2010) ) . Most
not abl y, nei t her si de adequat el y addr esses t he subst ant i ve l aw
gover ni ng pr oper venue i n t he cont ext of sui t s agai nst st at e
of f i ci al s and chal l enges t o st at e- wi de pol i ci es.
6

t o est abl i sh t hat t he di st r i ct he chose i s a pr oper venue)
4
The Gr ay Casual t y and Sur et y Co. v. Lebas, No. 12- 2709,
2013 WL 74351 ( E. D. La. J an. 7, 2013) ( Engel har dt , J . ) . These
st andar ds ar e par t i cul ar l y si gni f i cant wher e, as her e, nei t her si de
has submi t t ed an adequat e venue anal ysi s.
5
Of cour se, nei t her si de has submi t t ed mat er i al s t o
consi der beyond t he compl ai nt .
6
Wi t h one except i on: t he pl ai nt i f f i nvokes Gl obe Gl ass
& Mi r r or Co. v. Br own, 888 F. Supp. 768 ( E. D. La. 1995) ( J ones, J . ) ,
i n whi ch t he Cour t det er mi ned t hat venue was pr oper i n t he East er n
Di st r i ct , wher e a subst ant i al par t of t he company' s Loui si ana
busi ness occur r ed, not wi t hst andi ng t he f act t hat t he Loui si ana
I nsur ance Commi ssi oner ' s of f i ci al l y r esi ded i n anot her Loui si ana
di st r i ct .
However , nei t her si de addr esses ot her cases t hat woul d
advance t he pr esent venue debat e, i ncl udi ng ( among ot her s) : The
Gr ay Casual t y and Sur et y Co. v. Lebas, No. 12- 2709, 2013 WL 74351
( E. D. La. J an. 7, 2013) ( Engel har dt , J . ) ( " t he f ocus of t he
' subst ant i al par t of event s' i nqui r y i s on t he act i ons or omi ssi ons
of t he def endant , not on wher e t he pl ai nt i f f l at er f eel s t he . . .
ef f ect s of t he i nj ur y" ) ; Ross v. Di gi oi a, No. 11- 1827, 2012 WL
72703 ( E. D. La. J an. 10, 2012) ( Vance, J . ) ; Advocacy Cent er f or t he
El der l y and Di sabl ed v. Loui si ana Dept . of Heal t h and Hosp. , 731 F.
Supp. 2d 583 ( E. D. La. 2010) ( ci t i ng McNi ece v. J i ndal , No. 97- 2421,
1997 WL 767665 ( E. D. La. Dec. 9, 1997) ) . Counsel shoul d addr ess
case l i t er at ur e anal yzi ng t he pr opr i et y of venue i n di st r i ct s wher e
pol i ci es ar e made and wher e t hose pol i ci es ar e i mpl ement ed and t he
ef f ect s ar e f el t . See, e. g. , Chest er v. Bear d, No. 07- 4742, 2008
3
Case 2:13-cv-05090-MLCF-ALC Document 15 Filed 10/16/13 Page 3 of 4
Accor di ngl y, I T I S ORDERED: t hat , no l at er t han Oct ober 30,
2013, counsel f or bot h si des must submi t si mul t aneous suppl ement al
paper s, suppor t ed by ci t at i on t o l egal aut hor i t y ( and, i f r el evant
and necessar y, evi dence) , addr essi ng whet her venue i s pr oper i n t he
East er n Di st r i ct of Loui si ana under ei t her 28 U. S. C. 1391( b) ( 1)
or ( b) ( 2) .
I T I S FURTHER ORDERED: t hat t he submi ssi on dat e on t he
def endant ' s mot i on i s cont i nued t o November 13, 2013, on t he
paper s, unl ess ot her wi se or der ed.
New Or l eans, Loui si ana, Oct ober 16, 2013
______________________________
MARTI N L. C. FELDMAN
UNI TED STATES DI STRI CT J UDGE
WL 2310946, at *8 ( E. D. Pa. 2008) ( " wher e pl ai nt i f f s chal l enge
st at e- wi de pol i ci es, and not mer el y t he act i ons of st at e of f i ci al s
i n a si ngl e count y, venue i s pr oper pur suant t o Sect i on 1391( b) ( 2)
i n t he di st r i ct wher e t hose pol i ci es ar e devel oped" ) .
4
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UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD PLAINTIFFS

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, and moves this Honorable Court for leave to amend the complaint pursuant to
Rule 15(a) of the Federal Rules of Civil Procedure to add Derek Penton, Courtney Blanchard and
Nadine Blanchard as Plaintiffs. More particularly, his husband Derek Penton wishes to be added
as a party and Courtney and Nadine Blanchard are two women who are recently married and
have a child that they are raising that wish to join this lawsuit. Rule 15(a) provides that leave to
amend should be freely given when justice so requires. For the reasons set forth in greater
detail in the attached supporting memorandum, it is respectfully submitted that adding these
parties as plaintiffs is in the best interest of justice and judicial economy.
Case 2:13-cv-05090-MLCF-ALC Document 17 Filed 10/30/13 Page 1 of 2


Robicheaux v. Caldwell
Page 2
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiff, Jon Robicheaux
Case 2:13-cv-05090-MLCF-ALC Document 17 Filed 10/30/13 Page 2 of 2

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Robicheaux v. Caldwell
Page 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE AMEND
COMPLAINT TO ADD PLAINTIFFS

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiffs Motion for Leave to File Amended
Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
The Complaint was filed July 16, 2013 and was subsequently amended. The Attorney
General for the State of Louisiana filed a Rule 12(b)(3) Motion to Dismiss for Improper Venue
or in the Alternative Motion to Transfer to the Middle District of Louisiana.
SUMMARY OF LAW
Rule 15 of the Federal Rules of Civil Procedure is the rule regarding Amended and
Supplemental Pleadings. It reads in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

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Robicheaux v. Caldwell
Page 3
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.

Unless there is a substantial reason to deny leave to amend, the discretion of the district
court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th
Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist.,
28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading
U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so
requires," Fed. R. Civ. P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack
Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider
include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and
futility of amendment." Id.

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Robicheaux v. Caldwell
Page 4
PERTINENT FACTS

As the Court is well aware from the previous pleadings, Derek Penton is substantially if
not equally situated with the Plaintiff as his husband. Courtney Blanchard and Nadine Blanchard
were married August 30, 2013 in Clinton County, Iowa. Courtney is the biological mother and
Nadine is the birth mother of their son, C.B. Nadine adopted C.B. and Courtney essentially has
no rights to her own biological son with whom she lives along with her legally wedded wife.
Courtney and Nadine desire to sue the State of Louisiana in the exact same manner as your
Plaintiff and Movant, Jonathan Robicheaux.

CONCLUSION

Your Honor has vast discretion to determine when an Amendment is in the best interest
of justice. In addition, your Honor may determine when an Amendment is a matter of judicial
efficiency. Based upon the foregoing, it is respectfully submitted that allowing Derek Penton,
Courtney Blanchard and Nadine Blanchard to join this lawsuit as plaintiffs will be in the best
interest of justice and is not undue delay, bad faith or a dilatory motive on the part of the movant.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiff, Jon Robicheaux

Case 2:13-cv-05090-MLCF-ALC Document 17-1 Filed 10/30/13 Page 4 of 4
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


SECOND AMENDED COMPLAINT
FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come
JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of
Orleans Parish, residing in the United States District Court, Eastern District of Louisianas
district,
DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,
residing in the United States District Court, Eastern District of Louisianas district,
COURTNEY BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district, and
NADINE BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
and respectfully represent:

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 2
THE PARTIES
1.
Made defendant herein is James D. Caldwell in his official capacity as Attorney General
for the State of Louisiana, thereby meeting notice requirements under Federal Rule 5.1 for this
constitutionality challenge.
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after
having been in a committed relationship together since 2005 commingling funds, living together
and holding themselves out as monogamous partners that are living together as one union.
3.
The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally
married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013
after having been in a committed relationship with a child, C.B., commingling funds, living
together and holding themselves out as monogamous partners that are living together as one
union.
JURISDICTION AND VENUE
4.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, and the United States
Constitution, including without limitation the Fourteenth Amendment.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 3
5.
Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b) because the Defendant performs his official duties in this district.
FACTUAL BACKGROUND
6.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.
The State Laws at Issue
7.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.


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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 4
8.
Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

9.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
10.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the
characteristics relevant to marriage.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 5
11.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness.
12.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
13.
The Plaintiffs and other same-sex couples in Louisiana, if their marriages in other states
in which marriage is legal were recognized, would benefit no less than opposite-sex couples
from the many legal protections and the social recognition afforded to married couples.
14.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
15.
The exclusion from marriage undermines the Plaintiffs abilities to achieve the life goals
and dreams with their spouses; threatens their mutual economic stability; and denies them "a
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 6
dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18
(U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

16.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.
17.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
18.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 7
for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access
such federal protections as long as Louisiana refuses to recognize their existing marriage.
19.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
20.
Although the Plaintiffs are in long-term committed relationships, they and other same-sex
couples are denied the stabilizing effects of marriage, which helps keep couples together during
times of crisis or conflict.
21.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
22.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 8
23.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
24.
The plaintiffs recognize that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

25.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
26.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 9
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

27.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."


Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 9 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 10
CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

28.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
29.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
30.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
31.
Louisiana law denies the Plaintiffs and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.

Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 10 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 11
32.
The State can demonstrate no important interest to justify denying the Plaintiffs this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
33.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
34.
The Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by
the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

35.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
36.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 11 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 12
37.
By denying the Plaintiffs and other lesbian and gay couples the ability have their out-of-
state marriages recognized, the State, through Defendant, disadvantages lesbian and gay people
on the basis of their sexual orientation. It denies them significant legal protections. And it
"degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples
interact, including their own children," that their relationship is "less worthy" than the
relationships of others. Windsor, Slip Op., at 25.
38.

Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
39.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
40.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
41.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
42.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 12 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 13
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
43.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
44.
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.

Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 13 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 14
45.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
46.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

47.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
48.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
49.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.

Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 14 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 15
50.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
51.
The marriages of Plaintiffs, for example, are denied recognition solely because they are
both men and both women, respectively.
52.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
53.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
54.
The Defendant can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
55.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.

Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 15 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 16
56.
Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

57.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
58.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

59.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 16 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 17
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

60.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
61.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution;
2. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution;
3. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United
States Constitution.
Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 17 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 18
4. Enter a permanent injunction enjoining Defendant from denying the Plaintiffs and all
other same-sex couples the benefits of marriage and to recognize marriages validly
entered into by the Plaintiff and his Husband and other same-sex couples outside of the
State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs, Jon Robicheaux,
Derek Penton, Courtney Blanchard and
Nadine Blanchard





Case 2:13-cv-05090-MLCF-ALC Document 17-2 Filed 10/30/13 Page 18 of 18
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE SECOND AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of November,
2013.

_______________________________
JUDGE


UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF THE ATTORNEY GENERALS
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION TO TRANSFER FOR
IMPROPER VENUE
1


MAY IT PLEASE THE COURT:
NOW INTO COURT, through undersigned counsel, comes the named Defendant, James
D. Buddy Caldwell, in his official capacity as Attorney General of the State of Louisiana, who,
files this supplemental memorandum in support of his previously filed motion to dismiss the
Plaintiffs Complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3) or, in the
alternative, motion to transfer for improper venue.
2
We adopt all arguments made in our
previously filed motion and memorandum and offer this supplement to enhance and clarify our
motion as per this Honorable Courts Order.
3

The Attorney General does not concede to this Honorable Courts jurisdiction and
appears solely for the purpose of asserting improper venue. The Attorney General specifically
reserves and retains any and all rights and privileges available to him to contest such jurisdiction
at a later time, file motions to dismiss on alternative grounds, raise affirmative defenses not now

1
Rec. Doc. 13.
2
The Attorney General provides citations to case law from other federal circuits as well as unpublished
opinions for its persuasive value only. The Attorney General is aware that these opinions are not binding on this
Honorable Court.
3
Rec. Doc. 15.
Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 1 of 7
2
asserted, and/or contest the substance and merit of Plaintiffs constitutional claims including its
request for injunctive relief.
Federal Rule of Civil Procedure 12(b)(3) provides a mechanism for a defendant to move
for dismissal based on improper venue. 28 U.S.C. 1406 determines the standard by which a
dismissal for venue is evaluated. The district court of a district in which is filed a case laying
venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been brought. 28 U.S.C. 1406(a).
In assessing a motion to dismiss for improper venue, the burden is on the plaintiff to show the
district he chose is a proper venue.
4
A plaintiff may overcome his burden by providing evidence
from outside the complaint to prove venue is proper.
5
In further evaluating a Fed. R. Civ. P.
12(b)(3) motion to dismiss the court must accept all well pleaded allegations within the
complaint as true and resolve any conflicts in favor of the plaintiff.
6

It is undisputed that in this matter venue is determined by the general venue statute, 28
U.S.C. 1391(b) which states:
A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or

4
Perez v. Pan Am. Life Ins. Co., 70 F.3d 1268 (5th Cir. 1995) (citing Advanced Dynamics Corp. v. Mitech
Corp ., 729 F.Supp. 519, (N.D.Tex.1990)); Asevedo v. NBC Universal Media, LLC, 921 F. Supp. 2d 573, 589 (E.D.
La. 2013); Smith v. Fortenberry, 903 F.Supp. 1018, 1020 (E.D.La.1995) (citing 15 Wright, Miller & Cooper,
Federal Practice and Procedure: Jurisdiction 2d 3826); Langton v. Cbeyond commc'n, L.L.C., 282 F.Supp.2d 504,
508 (E.D.Tex.2003); Summers v. Kenton, OH Police, CIV.A. 11-3162, 2012 WL 1565363 (E.D. La. May 2, 2012)
(unpublished); Ross v. Digioia, CIV.A. 11-1827, 2012 WL 72703 (E.D. La. Jan. 10, 2012) (unpublished).
5
Ambraco Inc. v. Bossclip B. V., 570 F.3d 233, 238 (5th Cir. 2009), cert. denied, 130 S.Ct. 1054 (2010);
Asevedo, 921 F. Supp. 2d at 589; Laserdynamics Inc. v. Acer America Corp., 209 F.R.D. 388, 390 (S.D.Tex. 2002).
.
6
Asevedo, 921 F. Supp. 2d at 589-90); Braspetro Oil Services, Co. v. Modec (USA), Inc., 240 Fed. App'x
612, 615 (5th Cir.2007)(unpublished).

Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 2 of 7
3
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the courts
personal jurisdiction with respect to such action.

The Plaintiffs First Amended Complaint only alleges venue is proper in the Eastern
District because the Defendant performs his official duties in this district.
7
As discussed above,
although the Court should give the benefit of the doubt to the Plaintiff in evaluating a 12(b)(3)
motion, the Plaintiff fails to provide any evidence or even respond to the Defendants assertion
that venue is improper based on 28 U.S.C. 1391(b)(1). As discussed in the memorandum in
support of the Attorney Generals motion to dismiss for purposes of venue,
8
the Attorney
General does not reside in the Eastern District of Louisiana.
The Attorney General serves as the executive head and chief administrator of the
Department of Justice which is domiciled in Baton Rouge.
9
The Civil Division of
the Attorney General, which is tasked with defending the state in constitutional
challenges when the Attorney General chooses to exercise his discretion in cases
involving constitutional challenges to state laws, is located in Baton Rouge,
Louisiana. Accordingly, because the Attorney General performs his official
duties in Baton Rouge and the Civil Division of the Louisiana Department of
Justice is located in Baton Rouge, this would serve as his residence for purposes
of venue.
10


In Florida Nursing Home Association v. Page, the Fifth Circuit addressed venue.
11
The
Plaintiffs supplemental memorandum directs this Honorable Courts attention to this case,
which states:
the general rule in suits against public officials is that a defendants residence for
venue purposes is the district where he performs his official duties.A number of
cases applying this principle have involved federal officials or agencies and have
found only one official residence.
12



7
Rec. Doc. 10.
8
Rec. Doc. 13.
9
La. R.S. 36:701 (A) and (B).
10
Rec. Doc. 13.
11
616 F.2d 1355 (5th Cir. 1990).
12
Rec. Doc. 16 (citing to 616 F.2d 1355 (5th Cir. 1990)).
Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 3 of 7
4
The Plaintiff goes on to provide a lengthy excerpt from that case, which actually shows that for
purposes of venue under 28 U.S.C. 1391(b)(1), the Attorney General does not reside in the
Eastern District. The defendant at issue in Florida Nursing is distinguishable from the Attorney
General in this matter. There the court discussed that venue may be proper based on 1391(b)(1)
because the defendants office located in the district was large and much of the business of that
State entity was conducted from that office.
13
Other district courts have applied a three factor
test which looks at similar grounds for 1391(b)(1) venue purposes.
14
The factors required to
establish a state defendant has a second official residence for venue purposes depends on
examining the following: (1) the defendants presence in the district where the plaintiff sued; (2)
the extent of the defendants official activities in the district; and (3) the relationship between the
defendants activities in the district and the cause of action asserted by the plaintiff.
15
In the
Western District of Louisiana one court articulated that for purposes of venue a state official's
residence is located at the state capitol, even where branch offices of the state official's
department are maintained in other parts of the state.
16

Looking at all the ways to evaluate whether state officials reside for venue purposes in a
district, it is clear the Attorney General does not reside in the Eastern District in this matter. The
Louisiana Attorney General conducts the majority of business from the Baton Rouge Office.
Further, although the Attorney General has an office in the Eastern District of Louisiana, it is not

13
Florida Nursing Home Association, 616 F.2d 1355, 1360 (5th Cir. 1990). See also Globe Glass & Mirror
v. Brown, 888 F.Supp. 768 (E.D. La. 1995) (holding that because of the defendant conducted a substantial amount of
his business in the district venue was proper).
14
Braggs v. Lane, 717 F. Supp. 609, 611 (N.D. Ill. 1989) Cheeseman v. Carey, 485 F.Supp. 203, 207
(S.D.N.Y. 1980), remanded on other grounds, 623 F.2d 1387 (2d Cir.1980).
15
Id.
16
Osterweil v. Edmonson, CIV.A.10-CV-0263, 2010 WL 2428074 (W.D. La. June 10, 2010) (unpublished)
(citing Stanton-Negley Drug Co. v. Pennsylvania Dep't of Pub. Welfare, CIV.A. 07-1309, 2008 WL 1881894 (W.D.
Pa. Apr. 24, 2008)(unpublished)).
Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 4 of 7
5
a large office nor does he conduct the majority or a substantial amount of his business there.
17
In
fact, the Attorney General does not even accept service of process at this office. Additionally the
activities performed by the Attorney Generals satellite office in New Orleans have no
relationship with the plaintiff or his cause of action. Therefore, the venue is not proper in the
Eastern District of Louisiana based on the Attorney Generals residence under 28 U.S.C.
1391(b)(1).
Although nowhere in the Plaintiffs Amended Complaint does he allege venue is proper
based on 28 U.S.C. 1391(b)(2), his opposition brief to the Attorney Generals motion to
dismiss and his supplemental response to this Honorable Court, imply that he is changing his
basis of asserting venue. The Attorney General asserts that the Plaintiff should not be able to
change the basis upon which he asserts venue without amending his complaint. Yet, if this
Honorable Court accepts the Plaintiffs amended venue assertion made via his opposition
memorandum, this matter should still be dismissed for improper venue in the Eastern District of
Louisiana.
Just as with 28 U.S.C. 1391(b)(1) the burden is on the Plaintiff to show venue is proper
based on 28 U.S.C. 1391(b)(2). 28 U.S.C. 1391(b)(2) provides (2) a judicial district in
which a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated. The Plaintiff must show
that the Eastern District of Louisiana is where a substantial part of the event or omission giving
rise to the claim occurred, which he fails to do. There is a two part test that the Second Circuit
Court of Appeal applies to determine whether venue is proper under 1391(b)(2): (1) a court must
identify the nature of the claim and what gives rise to it; and (2) then determine whether a

17
The Louisiana Attorney Generals main office is located in Baton Rouge, Louisiana. Over 450 employees
work in the Baton Rouge Office. The New Orleans Office has less than fifty (50) employees and is a satellite office
that solely handles risk litigation.
Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 5 of 7
6
substantial part of those acts occurred in the district.
18
To determine if the actions within the
district are substantial there must be a close nexus between the acts and the claim.
19

The Plaintiff fails to meet his burden to show that a substantial part of the event giving
rise to the claim occurred in the Eastern District of Louisiana. Further, there is no close nexus
between the Eastern District of Louisiana and the constitutional challenge the Plaintiff has
brought before this Honorable Court. Even taking all facts within the Plaintiffs Complaints
20
as
well as the supplemental matter submitted
21
as true, the Plaintiff fails to overcome the burden of
establishing venue is proper in the Eastern District of Louisiana.
Thus, the Attorney General re-urge this Honorable Court to grant the Attorney Generals
previously filed Motion to Dismiss based on improper venue pursuant to Fed. R. Civ. P. 12(b)(3)
or in the alternative to transfer based on 28 U.S.C. 1406(a) or 28 U.S.C. 1404(a).
RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

/s/Jessica MP Thornhill________________
Jessica MP Thornhill (La. Bar # 34118)
Angelique Duhon Freel (La. Bar # 28561)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098
Email: thornhillj@ag.state.la.us
freela@ag.state.la.us



18
Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005).
19
Univ. Rehab. Hosp., Inc. v. Int'l Co-op. Consultants, Inc., CIV.A. 05-1827, 2006 WL 1098905 (W.D. La.
Apr. 24, 2006) *2 (unpublished).
20
Rec. Docs. 1, 10.
21
Rec. Doc. 16-1.
Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 6 of 7
7



CERTIFICATE OF SERVICE

I hereby certify that, on October 30, 2013, I electronically filed the forgoing with the
Clerk of Court by using the CM/EMF system, which will send a notice of electronic filing to all
counsel of record.

_____/s/Jessica MP Thornhill_______
Jessica MP Thornhill


Case 2:13-cv-05090-MLCF-ALC Document 18 Filed 10/30/13 Page 7 of 7
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD PLAINTIFFS

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, and moves this Honorable Court for leave to amend the complaint pursuant to
Rule 15(a) of the Federal Rules of Civil Procedure to add Derek Penton, Courtney Blanchard and
Nadine Blanchard as Plaintiffs. More particularly, his husband Derek Penton wishes to be added
as a party and Courtney and Nadine Blanchard are two women who are recently married and
have a child that they are raising that wish to join this lawsuit. Rule 15(a) provides that leave to
amend should be freely given when justice so requires. Jessica Thornhill, Esq., with the
Louisiana Attorney Generals Office, who is listed as counsel on the Attorney Generals Motion
to Dismiss, was contacted by undersigned counsel and advised undersigned counsel that her
client has no objection to the MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD
PLAINTIFFS. For the reasons set forth in greater detail in the attached supporting
memorandum, it is respectfully submitted that adding these parties as plaintiffs is in the best
interest of justice and judicial economy.
Case 2:13-cv-05090-MLCF-ALC Document 19 Filed 11/01/13 Page 1 of 2


Robicheaux v. Caldwell
Page 2
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiff, Jon Robicheaux

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on November 1, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 19 Filed 11/01/13 Page 2 of 2

Case 2:13-cv-05090-MLCF-ALC Document 19-1 Filed 11/01/13 Page 1 of 4


Robicheaux v. Caldwell
Page 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE AMEND
COMPLAINT TO ADD PLAINTIFFS

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiffs Motion for Leave to File Amended
Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
The Complaint was filed July 16, 2013 and was subsequently amended. The Attorney
General for the State of Louisiana filed a Rule 12(b)(3) Motion to Dismiss for Improper Venue
or in the Alternative Motion to Transfer to the Middle District of Louisiana.
SUMMARY OF LAW
Rule 15 of the Federal Rules of Civil Procedure is the rule regarding Amended and
Supplemental Pleadings. It reads in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

Case 2:13-cv-05090-MLCF-ALC Document 19-1 Filed 11/01/13 Page 2 of 4


Robicheaux v. Caldwell
Page 3
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.

Unless there is a substantial reason to deny leave to amend, the discretion of the district
court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th
Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist.,
28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading
U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so
requires," Fed. R. Civ. P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack
Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider
include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and
futility of amendment." Id.

Case 2:13-cv-05090-MLCF-ALC Document 19-1 Filed 11/01/13 Page 3 of 4


Robicheaux v. Caldwell
Page 4
PERTINENT FACTS

As the Court is well aware from the previous pleadings, Derek Penton is substantially if
not equally situated with the Plaintiff as his husband. Courtney Blanchard and Nadine Blanchard
were married August 30, 2013 in Clinton County, Iowa. Courtney is the biological mother and
Nadine is the birth mother of their son, C.B. Nadine adopted C.B. and Courtney essentially has
no rights to her own biological son with whom she lives along with her legally wedded wife.
Courtney and Nadine desire to sue the State of Louisiana in the exact same manner as your
Plaintiff and Movant, Jonathan Robicheaux.

CONCLUSION

Your Honor has vast discretion to determine when an Amendment is in the best interest
of justice. In addition, your Honor may determine when an Amendment is a matter of judicial
efficiency. Based upon the foregoing, it is respectfully submitted that allowing Derek Penton,
Courtney Blanchard and Nadine Blanchard to join this lawsuit as plaintiffs will be in the best
interest of justice and is not undue delay, bad faith or a dilatory motive on the part of the movant.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiff, Jon Robicheaux

Case 2:13-cv-05090-MLCF-ALC Document 19-1 Filed 11/01/13 Page 4 of 4
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


SECOND AMENDED COMPLAINT
FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come
JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of
Orleans Parish, residing in the United States District Court, Eastern District of Louisianas
district,
DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,
residing in the United States District Court, Eastern District of Louisianas district,
COURTNEY BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district, and
NADINE BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
and respectfully represent:

Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 1 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 2
THE PARTIES
1.
Made defendant herein is James D. Caldwell in his official capacity as Attorney General
for the State of Louisiana, thereby meeting notice requirements under Federal Rule 5.1 for this
constitutionality challenge.
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after
having been in a committed relationship together since 2005 commingling funds, living together
and holding themselves out as monogamous partners that are living together as one union.
3.
The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally
married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013
after having been in a committed relationship with a child, C.B., commingling funds, living
together and holding themselves out as monogamous partners that are living together as one
union.
JURISDICTION AND VENUE
4.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, and the United States
Constitution, including without limitation the Fourteenth Amendment.

Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 2 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 3
5.
Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b) because the Defendant performs his official duties in this district.
FACTUAL BACKGROUND
6.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.
The State Laws at Issue
7.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.


Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 3 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 4
8.
Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

9.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
10.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the
characteristics relevant to marriage.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 5
11.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness.
12.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
13.
The Plaintiffs and other same-sex couples in Louisiana, if their marriages in other states
in which marriage is legal were recognized, would benefit no less than opposite-sex couples
from the many legal protections and the social recognition afforded to married couples.
14.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
15.
The exclusion from marriage undermines the Plaintiffs abilities to achieve the life goals
and dreams with their spouses; threatens their mutual economic stability; and denies them "a
Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 5 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 6
dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18
(U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

16.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.
17.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
18.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 6 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 7
for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access
such federal protections as long as Louisiana refuses to recognize their existing marriage.
19.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
20.
Although the Plaintiffs are in long-term committed relationships, they and other same-sex
couples are denied the stabilizing effects of marriage, which helps keep couples together during
times of crisis or conflict.
21.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
22.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 8
23.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
24.
The plaintiffs recognize that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

25.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
26.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 8 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 9
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

27.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."


Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 9 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 10
CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

28.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
29.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
30.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
31.
Louisiana law denies the Plaintiffs and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 11
32.
The State can demonstrate no important interest to justify denying the Plaintiffs this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
33.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
34.
The Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by
the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

35.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
36.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 12
37.
By denying the Plaintiffs and other lesbian and gay couples the ability have their out-of-
state marriages recognized, the State, through Defendant, disadvantages lesbian and gay people
on the basis of their sexual orientation. It denies them significant legal protections. And it
"degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples
interact, including their own children," that their relationship is "less worthy" than the
relationships of others. Windsor, Slip Op., at 25.
38.

Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
39.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
40.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
41.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
42.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 13
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
43.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
44.
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 14
45.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
46.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

47.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
48.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
49.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 15
50.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
51.
The marriages of Plaintiffs, for example, are denied recognition solely because they are
both men and both women, respectively.
52.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
53.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
54.
The Defendant can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
55.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 16
56.
Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

57.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
58.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

59.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 17
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

60.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
61.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution;
2. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution;
3. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United
States Constitution.
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 18
4. Enter a permanent injunction enjoining Defendant from denying the Plaintiffs and all
other same-sex couples the benefits of marriage and to recognize marriages validly
entered into by the Plaintiff and his Husband and other same-sex couples outside of the
State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs, Jon Robicheaux,
Derek Penton, Courtney Blanchard and
Nadine Blanchard





Case 2:13-cv-05090-MLCF-ALC Document 19-2 Filed 11/01/13 Page 18 of 18
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE SECOND AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of November,
2013.

_______________________________
JUDGE




UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE SECOND AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of November,
2013.

_______________________________
JUDGE

Case 2:13-cv-05090-MLCF-ALC Document 21 Filed 11/04/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


SECOND AMENDED COMPLAINT
FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come
JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of
Orleans Parish, residing in the United States District Court, Eastern District of Louisianas
district,
DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,
residing in the United States District Court, Eastern District of Louisianas district,
COURTNEY BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district, and
NADINE BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
and respectfully represent:

Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 1 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 2
THE PARTIES
1.
Made defendant herein is James D. Caldwell in his official capacity as Attorney General
for the State of Louisiana, thereby meeting notice requirements under Federal Rule 5.1 for this
constitutionality challenge.
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after
having been in a committed relationship together since 2005 commingling funds, living together
and holding themselves out as monogamous partners that are living together as one union.
3.
The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally
married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013
after having been in a committed relationship with a child, C.B., commingling funds, living
together and holding themselves out as monogamous partners that are living together as one
union.
JURISDICTION AND VENUE
4.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, and the United States
Constitution, including without limitation the Fourteenth Amendment.

Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 2 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 3
5.
Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b) because the Defendant performs his official duties in this district.
FACTUAL BACKGROUND
6.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.
The State Laws at Issue
7.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.


Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 3 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 4
8.
Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

9.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
10.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the
characteristics relevant to marriage.

Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 4 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 5
11.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness.
12.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
13.
The Plaintiffs and other same-sex couples in Louisiana, if their marriages in other states
in which marriage is legal were recognized, would benefit no less than opposite-sex couples
from the many legal protections and the social recognition afforded to married couples.
14.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
15.
The exclusion from marriage undermines the Plaintiffs abilities to achieve the life goals
and dreams with their spouses; threatens their mutual economic stability; and denies them "a
Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 5 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 6
dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18
(U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

16.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.
17.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
18.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 6 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 7
for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access
such federal protections as long as Louisiana refuses to recognize their existing marriage.
19.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
20.
Although the Plaintiffs are in long-term committed relationships, they and other same-sex
couples are denied the stabilizing effects of marriage, which helps keep couples together during
times of crisis or conflict.
21.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
22.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 8
23.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
24.
The plaintiffs recognize that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

25.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
26.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 8 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 9
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

27.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."


Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 9 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 10
CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

28.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
29.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
30.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
31.
Louisiana law denies the Plaintiffs and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 11
32.
The State can demonstrate no important interest to justify denying the Plaintiffs this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
33.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
34.
The Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by
the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

35.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
36.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 11 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 12
37.
By denying the Plaintiffs and other lesbian and gay couples the ability have their out-of-
state marriages recognized, the State, through Defendant, disadvantages lesbian and gay people
on the basis of their sexual orientation. It denies them significant legal protections. And it
"degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples
interact, including their own children," that their relationship is "less worthy" than the
relationships of others. Windsor, Slip Op., at 25.
38.

Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
39.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
40.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
41.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
42.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 12 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 13
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
43.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
44.
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.

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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 14
45.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
46.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

47.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
48.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
49.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.

Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 14 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 15
50.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
51.
The marriages of Plaintiffs, for example, are denied recognition solely because they are
both men and both women, respectively.
52.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
53.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
54.
The Defendant can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
55.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.

Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 15 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 16
56.
Defendant, acting under color of state law, is depriving Plaintiffs of rights secured by the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

57.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
58.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

59.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 16 of 18


Second Amended Complaint - Robicheaux et al v. Caldwell
Page 17
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

60.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Section 15 of the Louisiana
Constitution.
61.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution;
2. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution;
3. Enter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana
Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United
States Constitution.
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Second Amended Complaint - Robicheaux et al v. Caldwell
Page 18
4. Enter a permanent injunction enjoining Defendant from denying the Plaintiffs and all
other same-sex couples the benefits of marriage and to recognize marriages validly
entered into by the Plaintiff and his Husband and other same-sex couples outside of the
State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs, Jon Robicheaux,
Derek Penton, Courtney Blanchard and
Nadine Blanchard





Case 2:13-cv-05090-MLCF-ALC Document 22 Filed 11/04/13 Page 18 of 18
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
__________ District of __________
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff(s)
v. Civil Action No.
Defendant(s)
SUMMONS IN A CIVIL ACTION
To: (Defendants name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached second amended complaint or a motion
under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs
attorney, whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Nov 04 2013
Eastern District of Louisiana
JONATHAN P. ROBICHEAUX
13-5090 F(5)
JAMES D. CALDWELL
James D. Caldwell
1885 N. Third Street
Baton Rouge, LA 70802
Scott J. Spivey
815 Dauphine Street
Suite D
New Orleans, LA 70116
Case 2:13-cv-05090-MLCF-ALC Document 23 Filed 11/04/13 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
u I personally served the summons on the individual at (place)
on (date) ; or
u I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individuals last known address; or
u I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
u I returned the summons unexecuted because ; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
13-5090 F(5)
0.00
Case 2:13-cv-05090-MLCF-ALC Document 23 Filed 11/04/13 Page 2 of 2
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************

THE ATTORNEY GENERALS MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION

MAY IT PLEASE THE COURT, through undersigned counsel, comes the named
Defendant, James D. Buddy Caldwell, in his official capacity as Attorney General of the State
of Louisiana, who moves to dismiss the Plaintiffs Complaints for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) for the following non-exhaustive reasons set
forth below and more fully explained in the memorandum in support.
Notably, the Attorney General appears solely for the purpose of asserting the lack of
subject matter jurisdiction. He does not concede to this Honorable Courts jurisdiction and
specifically reserves and retains any and all rights and privileges available to him to contest such
jurisdiction at a later time, file motions to dismiss on alternative grounds, raise affirmative
defenses not now asserted, and/or contest the substance and merit of Plaintiffs constitutional
claims including its request for injunctive relief.
The Plaintiffs challenge is non-justiciable and should be dismissed based on Fed. R. Civ.
P. 12(b)(1). The Attorney General is entitled to Eleventh Amendment immunity as he has been
sued in his official capacity. Nowhere in the federal laws the Plaintiffs cites to does Congress
Case 2:13-cv-05090-MLCF-ALC Document 24 Filed 11/06/13 Page 1 of 3
2
specifically abrogate state sovereign immunity. Furthermore, the Attorney General expressly
declines to waive his immunity. Nor does the Ex Parte Young doctrine allow the Plaintiffs to
pierce the Attorney Generals immunity in this manner. The Ex Parte Young doctrine exception
only applies if: 1) the plaintiffs are seeking prospective relief; 2) defendant has the required
connection to the unconstitutional act; and 3) the defendant is threatening to or commencing
enforcement of the provisions in question. Here, the Attorney General does not have the
required nexus to the enforcement of the challenged provisions. Nor is there any indication the
Attorney General is threatening to or commencing enforcement of these provisions. The failure
to meet either one of these requirements of the Ex Parte Young exception renders the Attorney
General immune from suit in this matter based on the Eleventh Amendment.
WHEREFORE, James D. Buddy Caldwell, in his official capacity as Attorney General
of the State of Louisiana, prays that an Order be issued by this Court which:
1. Grants the Attorney Generals Motion to Dismiss Plaintiffs Complaints
with prejudice pursuant to Fed. R. Civ. P. 12(b)(1); and
2. For all other legal and equitable remedies available to them.

RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

/s/Jessica MP Thornhill________________
Jessica MP Thornhill (La. Bar # 34118)
Angelique Duhon Freel (La. Bar # 28561)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098
Email: thornhillj@ag.state.la.us
freela@ag.state.la.us
Case 2:13-cv-05090-MLCF-ALC Document 24 Filed 11/06/13 Page 2 of 3
3



CERTIFICATE OF SERVICE

I hereby certify that, on November 6, 2013, I electronically filed the forgoing with the
Clerk of Court by using the CM/EMF system, which will send a notice of electronic filing to all
counsel of record.

_____/s/Jessica MP Thornhill_______
Jessica MP Thornhill
Case 2:13-cv-05090-MLCF-ALC Document 24 Filed 11/06/13 Page 3 of 3
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************
THE ATTORNEY GENERALS MEMORANDUM IN SUPPORT OF MOTION TO
DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

NOW INTO COURT, through undersigned counsel, comes James D. Buddy Caldwell,
in his official capacity as Attorney General of the State of Louisiana, who files this memorandum
in support of his contemporaneously-filed motion to dismiss the Plaintiffs Complaint for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
The Attorney General appears solely for the purpose of asserting the lack of subject
matter jurisdiction. He specifically reserves and retains any and all rights and privileges
available to him to file motions to dismiss on alternative grounds, raise affirmative defenses not
now asserted, and/or contest the substance and merit of Plaintiffs constitutional claims including
its request for injunctive relief.
I. FACTUAL AND PROCEDURAL HISTORY
On July 16, 2013, the Plaintiff filed a Complaint wherein he named the Louisiana
Attorney General James D. Caldwell as a Defendant.
1
The Plaintiff identified James D. Caldwell

1
Rec. Doc. 1.
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 1 of 10
2
as the Attorney General of the State of Louisiana.
2
Attorney General Caldwell was also named
as a Defendant in his official capacity.
3

The Plaintiff asserts that the enforcement and enactment of Louisiana Constitution 15
4

and Louisiana Civil Code Article 3520 violate the Equal Protections Clause, the Substantive Due
Process Clause, and the Full Faith and Credit Clause of the United States Constitution.
5

The Plaintiff also raises a cause of action under 42 U.S.C. 1983.
6

As a remedy, the Plaintiff has requested this Court to enter judgment in his favor and

[e]nter a declaratory judgment that Section 18 of the Louisiana Constitution and
Louisiana Civil Code Article 3520 B (1) violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution;

[e]nter a declaratory judgment that Section 18 of the Louisiana Constitution and
Louisiana Civil Code Article 3520 B (1) violate the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution;

[e]nter a declaratory judgment that Section 18 of the Louisiana Constitution and
Louisiana Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause
of the United States Constitution;

[e]nter a permanent injunction enjoining Defendants from denying the Plaintiff
and his Husband and all other same-sex couples the benefits of marriage and to
recognize marriages validly entered into by the Plaintiff and his Husband and
other same-sex couples outside of the State of Louisiana.
7


The Plaintiff also seeks fees, costs under 42 U.S.C. 1988 and further relief that the Court may
deem proper.
8
On July 25, 2013, Attorney General Caldwell was served with a copy of the
Complaint. Attorney General Caldwell waived service on July 29, 2013.
9
The Plaintiff filed a

2
Rec. Doc. 1, 4.
3
Rec. Doc. 1, 1.
4
It is our presumption that this is Article 12, 15 of the Louisiana Constitution.
5
Rec. Doc. 10.
6
Rec. Doc. 10, 3.
7
Rec. Doc. 10, 60.
8
Id.
9
Rec. Doc. 6 and 7. Plaintiff acknowledges in his motion for leave to file amended complaint that the
Attorney General waived service on July 29, 2013.
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 2 of 10
3
Supplemental and Amended Complaint on August 9, 2013.
10
Attorney General Caldwell filed a
motion to dismiss for improper venue on September 26, 2013.
11
This Honorable Court requested
supplemental memoranda from both parties which were submitted on October 30, 2013.
12
On
November 4, 2013, the Plaintiff filed a Second Amended Complaint, which added three
additional Plaintiffs to the case and made no additional allegations or claims for relief.
13

The Attorney General now files the instant motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) in response to the Plaintiffs Complaints.
II. LAW AND ARGUMENT
The Plaintiffs fail to present a justiciable controversy to this Honorable Court as the
Attorney General is immune from suit based on the Eleventh Amendment. If a matter is non-
justiciable the court lacks the power to adjudicate the matter.
14
When a court lacks the
constitutional power to adjudicate a matter, it should be dismissed for lack of subject matter
jurisdiction.
15
Failure to present a justiciable controversy renders the matter improperly before
the court, leaving the court with the obligation to dismiss the complaint.
Federal Rule of Civil Procedure 12(b)(1) is the proper mechanism to attack the Plaintiffs
justiciability as it effects the courts subject matter jurisdiction.
16
A challenge to subject matter
jurisdiction may be raised at any time, by any party, or by the court sua sponte.
17
In a Fed. R.

10
Rec. Doc. 10.
11
Rec. Doc. 13.
12
Rec. Doc. 15.
13
Rec. Doc. 22.
14
U.S. Const. Art. III, 2.
15
Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
16
Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir.1996) (articulating that a motion to dismiss under
Fed. R.. Civ. P. 12(b)(1) is the correct way to seek the dismissal of a claim based on Eleventh Amendment Immunity);
Kervin v. City of New Orleans, 06-3231, 2006 WL 2849861 (E.D. La. Sept. 28, 2006); Fox, et al. v. Reed, et al., 2000
WL 288379 at *2 (E.D.La. 2000); Rodriguez v. Board of Trustees for State Colleges and Universities, 1983 WL
484909, n. 3 (E.D.La.1983).
17
Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th Cir. 2012), See also Great Prize, S.A. v. Mariner
Shipping Party, Ltd., 967 F.2d 167, 159 n. 4 (5th Cir.1992), Trust Company Bank v. U.S. Gypsum Co., 950 F.2d
1144, 1146 (5th Cir.1992), and Patterson v. Hamrick, 885 F.Supp. 145, 147 (E.D.La. 1995).
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 3 of 10
4
Civ. P. 12(b)(1) motion to dismiss, the burden of proof lies with the party asserting the courts
jurisdiction, the Plaintiffs in this matter.
18
In deciding a motion to dismiss, the function of the
district court is to test the legal sufficiency of the complaint.
19
A court may consider (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts
when evaluating the subject matter jurisdiction.
20
In this suit, the Attorney General raises a fatal
attack on the Plaintiffs Complaints based on subject matter jurisdiction.
i. Eleventh Amendment Immunity Protects the Attorney General from Suit in
Federal Court.

The Attorney General is immune from suit in this forum based on the Eleventh
Amendment of the United States Constitution. The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend in any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens or Subjects of any Foreign State.
21


Eleventh Amendment immunity prohibits not just action against the State but also action against
state officials in their official capacity.
22
The Attorney General here has been sued in his official
capacity.
23
Pursuant to sovereign immunity principles provided by the Eleventh Amendment,
this Honorable Courts jurisdiction does not extend over the claims alleged in this suit against the
Attorney General of the State of Louisiana. The Eleventh Amendment bars suits in federal

18
Ramming v. United States, 281 F.3d 158, 161 (5
th
Cir. 2001); Stain v. Harrelson Rubber Co. 742 F.2d 888, 889
(5
th
Cir. 1984).
19
City of Toledo v. Beazer Materials and Services, Inc., 833 F.Supp. 646 (N.D.Ohio 1993).
20
Doe v. Caldwell, 913 F. Supp. 2d 262, 270 (E.D. La. 2012) (citing BarreraMontenegro v. United States,
74 F.3d 657, 659 (5th Cir.1996)).
21
U.S. Const. Amend. XI.
22
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); See also Champagne v. Jefferson
Parish Sheriff's Office, 188 F.3d 312, 313 (5th Cir. 1999) (determining that generally all Louisiana Executive
Departments are entitled to Eleventh Amendment immunity).
23
Rec. Doc. 1 and 10.
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 4 of 10
5
court by citizens of a state against their own state or a state agency or department.
24
Further, it
bars claims for both money damages and injunctive relief unless the state has waived its
immunity.
25
Louisiana expressly declines to waive its immunity.
26

The concept of state sovereign immunity has two parts: first, that each State is a
sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty
not to be amenable to the suit of an individual without its consent.
27
While a states immunity
is not absolute, the Supreme Court has recognized only a few circumstances whereby an
individual can sue a state in Federal Court.
28
First, Congress may abrogate states immunity by
legislatively authorizing such a suit for purposes of enforcing the provisions of the Fourteenth
Amendment.
29
Secondly, a states sovereign immunity is a personal privilege which it may
waive at its pleasure by consenting to the suit.
30
Lastly, a narrow exception exists for suits
seeking injunctive relief against state officials known as the Ex Parte Young
31
doctrine. Despite
the existence of these exceptions the Attorney General is entitled to Eleventh Amendment
immunity.
The Plaintiffs cite two federal laws in support of this Courts jurisdiction over the current
matter: 28 U.S.C 1331 and 1343. However, neither law indicates any congressional intent to
abrogate a states sovereign immunity.
32
Without congressional abrogation the only way for

24
Delahoussaye v. City of New Iberia, 937 F.2d 144, 146 (5th Cir. 1997) (citing Voisins Oyster House, Inc.
v. Guidry, 799 F.2d 183, 185-186 (5th Cir. 1986); See also Pennhurst State School & Hospital v. Halderman, 465
U.S. 89 (1984).
25
Cozzo v. Tangipahoa Parish Council President Government, 279 F.3d 273, 280 (5
th
Cir. 2002).
26
La. R.S. 13:5106(A).
27
Meyers v. Texas, 410 F.3d 236, 240 (5th Cir. 2005) (citing Florida Prepaid Postsecondary Educ. Expense
Bd. v. College Savings Bank, 527 U.S. 627, 634 (1999)).
28
Id. at 241.
29
Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)).
30
Id.
31
Ex Parte Young, 209 U.S. 123 (1908).
32
The Supreme Court has created a two-part test for determining whether Congress has properly abrogated
the states Eleventh Amendment immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); see also
Ussery v. State of Louisiana, 150 F.3d 431 (5th Cir. 1998). The first step requires a determination of whether
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 5 of 10
6
Eleventh Amendment immunity not to apply to the Attorney General in this matter, would be if
there was direct action on behalf of the State to waive the constitutionally provided immunity.
This can be accomplished only if either the State voluntarily invokes Federal Court jurisdiction;
or, if the State makes a clear declaration that it intends to submit itself to Federal Court
jurisdiction.
33

As a general matter, the State of Louisiana nor its officials have waived its sovereign
immunity for suits brought in Federal Court.
34
The Louisiana Legislature clearly expressed that
[n]o suit against the state or a state agency or political subdivision shall be instituted in any
court other than a Louisiana state court.
35
Therefore, since Louisiana has not voluntarily
invoked Federal Court jurisdiction, there must be an individual affirmative waiver of Eleventh
Amendment immunity in each matter for the court to have jurisdiction over the claims against
the State. Here, the Attorney General does not consent to this suit and herein respectfully
declines to waive his sovereign immunity.
A very narrow exception to Eleventh Amendment immunity, the Ex Parte Young doctrine
exists, but it does not apply in this matter. In order to pierce a state officials Eleventh
Amendment immunity the Ex Parte Young doctrine requires the plaintiffs to seek prospective
relief, show the defendants have some connection with the enforcement of the Act, and show the
defendants threaten to or commence proceedings to enforce the Act.
36
This exception only

Congress unequivocally expresse[d] its intent to abrogate the immunity. Id. at 55 If the intent to abrogate is
expressed in unmistakable language in the statute itself, the court must then determine whether Congress acted
pursuant to a valid exercise of power. Ussery, 150 F.3d 431, 434 (citations omitted).
33
Id.
34
See Citrano v. Allen Correctional Center, 891 F.Supp. 312 (W.D.La. 1995); Building Engineering Services
Co., Inc. v. State of La., 459 F.Supp. 180 (E.D.La. 1978).
35
La. R.S. 13:5106(A).
36
Ex Parte Young, 209 U.S. 123, 155-56 (1908).
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 6 of 10
7
applies when the defendants have the ability to commit the unconstitutional act for which the
plaintiffs are seeking an injunction.
37

A state officials Eleventh Amendment immunity should be maintained except in rare
narrowly defined circumstances. This is important to prevent litigants from misusing the Ex
Parte Young exception and suing the incorrect party who do not have a role in the enforcement
of the law at issue.
38
In assessing whether Ex Parte Young applies to state officials requires a
fact intensive inquiry. To reiterate it is the Plaintiffs burden to show this court has subject
matter jurisdiction and the Plaintiff must meet all of the Ex Parte Young doctrine requirements in
order to pierce the Attorney Generals immunity in this matter.
The Attorney General does not have the required connection with the challenged
constitutional amendment or the civil code article to pierce his immunity through Ex Parte
Young. Although Okapalobi v. Foster,
39
is not binding precedent, the en banc court provides
excellent insight and a strong persuasive argument in its analysis of Ex Parte Young. There the
court held that:
the Young principle teaches that it is not merely the general duty to see that the
laws of the state are implemented that substantiates the required connections,
but the particular duty to enforce the statute in question and a demonstrated
willingness to exercise that duty.
40


For the Attorney General to have his Eleventh Amendment immunity pierced the he must
have the ability to enforce the statute. The Attorney General does not have that ability regarding
the provisions at issue in this matter. Nowhere in the Plaintiffs Complaints do they allege the
Attorney General has the ability to commit the alleged unconstitutional provisions. Further,
nowhere in either provision, Louisiana Constitution Article XII, 15 and Louisiana Civil Code

37
Id. at 158-59; Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001).
38
K.P. v. LeBlanc, 627 F.3d. 115, 124 (5
th
Cir. 2010).
39
244 F.3d 405 (5
th
Cir. 2001).
40
Id. at 416-17 (Emphasis added).
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 7 of 10
8
Article 3520, is the attorney general tasked with enforcement or action. The only connection to
these is based on the Attorney Generals general duty to enforce the laws of the state, but that is
not enough of a connection for Ex Parte Young to apply.
41
Without the ability of the Attorney
General to actually commit the unconstitutional act in question, the Plaintiff cannot use the Ex
Parte Young exception to pierce the Eleventh Amendment immunity of the Attorney General.
The Attorney Generals connection to the provisions in question mirrors that of the
Governor in Doe v. Jindal, where this Honorable Court held that Governor Jindals generic
constitutional duty as governor to see that laws are faithfully executed (La. Const. art. 4, 5)
lacks the Ex Parte Young nexus between the Governor and the alleged unconstitutional act to
defeat his sovereign immunity.
42
Similarly, in the matter before this Honorable Court, the
Attorney Generals generic constitutional duty fails to have the required nexus to pierce his
Eleventh Amendment immunity.
Even if this Honorable Court were to find that the Attorney General has the required
nexus to enforce the provisions at issue, this Honorable Court should still find that the Attorney
General is entitled to Eleventh Amendment immunity because the Plaintiffs have not shown that
the Attorney General has threatened to or commenced proceedings to enforce the challenged
provisions. Nowhere in the Plaintiffs Complaints do they even allege the Attorney General is
threatening to or enforcing the challenged provisions. Additionally, even if they alleged the
Attorney General was threatening to or enforcing these provisions, as a matter of law he does not
have that ability.
43
Therefore the Plaintiffs cannot meet the Ex Parte Young exception because
the Attorney General is not threatening to or enforcing the challenged provision.

41
See Louisiana Constitution Article IV, 8; La. R.S. 49:251, et seq.
42
Doe v. Jindal, CIV.A. 11-388, 2011 WL 3925042, *5 (E.D. La. Sept. 7, 2011) (unpublished opinion).
43
See Louisiana Constitution Article IV, 8; La. R.S. 49:251, et seq.
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 8 of 10
9
Additionally there is no policy reason to allow for the Attorney General to be sued in this
matter. A common policy reason to allow for the piercing of state officials Eleventh
Amendment immunity is when a plaintiff does not have any other avenue to pursue their
grievance, but here the Plaintiffs do have other avenues to raise their grievance other than federal
court. This matter could be brought in state court, which is likely the more appropriate forum for
a determination of the constitutionality of a Louisiana Civil Code Article and Louisiana
Constitutional Amendment.
In summary, the Ex Parte Young exception is inapplicable to the case before this
Honorable Court. Failure to meet just one of the Ex Parte Young exception requirements
prevents the exception from piercing a state officials Eleventh Amendment immunity. Here,
two aspects of the Ex Parte Young exception cannot be met. The Attorney General not only has
no connection with the enforcement of the provisions at issue but also has not shown any threat
or effort to enforce these provisions. Therefore, this Honorable Court should dismiss the
Plaintiffs Complaints as the Attorney General is immune from suit in this matter.









Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 9 of 10
10
III. CONCLUSION
WHEREFORE, James D. Buddy Caldwell, in his official capacity as Attorney General
of the State of Louisiana pray that an Order be issued by this Honorable Court which:
1. Grants the Attorney Generals Motion and Dismisses the Plaintiffs
Complaint pursuant to Fed. R. Civ. P. 12(b)(1); and
2. For all other legal and equitable remedies available to them.

RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

_________/s/ Jessica MP Thornhill___________
Jessica MP Thornhill (La. Bar # 34118)
Angelique Duhon Freel (La. Bar # 28561)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098



CERTIFICATE OF SERVICE

I do hereby certify that a copy of the foregoing pleading has been served upon all counsel
of record by the Courts CM/ECF system on this 6th day of November 2013.


________/s/ Jessica MP Thornhill__________
Jessica MP Thornhill
Case 2:13-cv-05090-MLCF-ALC Document 24-1 Filed 11/06/13 Page 10 of 10
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************

NOTICE OF SUBMISSION


PLEASE TAKE NOTICE that undersigned counsel for James D. Buddy Caldwell,
Louisiana Attorney General, in his official capacity will submit for consideration the
accompanying Motion to Dismiss for Lack of Subject Matter Jurisdiction before the Honorable
Martin L.C. Feldman, United States District Court Judge, Eastern District of Louisiana, 500
Poydras Street, New Orleans, Louisiana on the 27th day of November 2013 at 10 a.m.

RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

_________/s/ Jessica MP Thornhill___________
Jessica MP Thornhill (La. Bar # 34118)
Angelique Duhon Freel (La. Bar # 28561)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098


Case 2:13-cv-05090-MLCF-ALC Document 24-2 Filed 11/06/13 Page 1 of 3
2

CERTIFICATE OF SERVICE

I do hereby certify that a copy of the foregoing pleading has been served upon all counsel
of record by the Courts CM/ECF system on this 6th day of November 2013.


________/s/ Jessica MP Thornhill__________
Jessica MP Thornhill
Case 2:13-cv-05090-MLCF-ALC Document 24-2 Filed 11/06/13 Page 2 of 3
3

Case 2:13-cv-05090-MLCF-ALC Document 24-2 Filed 11/06/13 Page 3 of 3
Case 2:13-cv-05090-MLCF-ALC Document 25 Filed 11/07/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN OPPOSITION TO THE ATTORNEY GENERALS
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

MAY IT PLEASE THE COURT:
This matter comes on for cause on James D. Caldwell, the Louisiana Attorney Generals
Motion to Dismiss your Respondents Complaint and Amended Complaint and Second
Amended Complaint for lack of subject matter jurisdiction invoking sovereign immunity and the
Ex Parte Young rules. In this regard, the Attorney General specifically states that he has not
made a general appearance.
To begin, your Plaintiffs and Respondents herein draw the Courts attention to the words
of the Ex Parte Young Court on this Courts duty to hear cases such as the one at hand. The Ex
Parte Young Court stated as follows in laying the foundation for its holding.
The question of jurisdiction, whether of the Circuit Court or of this court, is
frequently a delicate matter to deal with, and it is especially so in this case, where
the material and most important objection to the jurisdiction of the Circuit Court
is the assertion that the suit is, in effect, against one of the States of the Union. It
is a question, however, which we are called upon, and which it is our duty, to
decide. Under these circumstances, the language of Chief Justice Marshall in
Cohen v. Virginia, 6 Wheat. 264-404, is most apposite. In that case, he said:

Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 1 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 2
"It is most true that this court will not take jurisdiction if it should not; but it is
equally true that it must take jurisdiction if it should. The judiciary cannot, as the
legislature may, avoid a measure because it approaches the confines of the
Constitution. We cannot pass it by because it is doubtful. With whatever doubts,
with whatever difficulties, a case may be attended, we must decide it if it be
brought before us. We have no more right to decline the exercise of jurisdiction
which is given than to usurp that which is not given. The one or the other would
be treason to the Constitution. Questions may occur which we would gladly
avoid, but we cannot avoid them. All we can do is to exercise our best judgment,
and conscientiously to perform our duty."

Ex Parte Young, 209 U.S. 123, 143 (1908). The Louisiana Attorney General cites in his
Memorandum in Support this Courts ruling in Doe v. Jindal in an unpublished opinion on
Governor Jindals Motion to Dismiss invoking the Sovereign Immunity of the 11
th
Amendment
in which your Honor dismissed Governor Jindal, but the Attorney General fails to note this
Courts ruling as it applied to the Attorney General and to note this Courts ruling in an
unpublished and related ruling in Doe v. Caldwell in which this Court denied the Louisiana
Attorney Generals Motion to Dismiss under the same theory of law. It is respectfully submitted
that your Honor has specifically set forth the law and standard in this latter opinion, which, when
applied, results in denial of the Motion to Dismiss at hand. Citing and quoting your Honor, the
following language applies:
II.

Sovereign Immunity

The defendants contend that sovereign immunity bars the plaintiffs claims; they
say that the plaintiffs have failed, in part, to request relief that is properly
characterized as prospective, and, to the extent that they do request prospective
relief, defendants contend that plaintiffs fail to plead an ongoing violation of
federal law such that the Ex parte Young exception to sovereign immunity is
inapplicable. The Court disagrees.

Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 2 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 3
Sovereign immunity is the privilege of the sovereign not to be sued without its
consent. Virginia Office for Protection and Advocacy v. Stewart, 131 S.Ct. 1632,
1637 (2011)(holding that Ex parte Young exception to sovereign immunity
permitted suit by independent state agency dedicated to advocacy for persons with
disabilities against certain state officials sued in their official capacities, alleging
violations of federal law by refusing agency access to records to which it was
entitled under federal enabling statutes). The Eleventh Amendment bars suits by
private citizens against a state in federal court. K.P. v. LeBlanc, 627 F.3d 115, 124
(5th Cir. 2010)(citing Hutto v. Finney, 437 U.S. 678, 700 (1978)). This immunity
protects state actors in their official capacities. Id. There is, of course, an
important limit on the sovereign immunity doctrine: the iconic Ex parte Young
exception rests on the premise...that when a federal court commands a state
official to do nothing more than refrain from violating federal law, he is not the
State for sovereign-immunity purposes. Stewart, 131 S.Ct. at 1638; K.P., 627
F.3d at 124 (Ex parte Young is based on the legal fiction that a sovereign state
cannot act unconstitutionally[; t]hus, where a state actor enforces an
unconstitutional law, he is stripped of his official clothing and becomes a private
person subject to suit.); see also Will v. Michigan Dept of State Police, 491 U.S.
58, 71 n.10 (1989)(noting [o]f course a state official in his or her official
capacity, when sued for injunctive relief, would be a person under 1983
because.official-capacity actions for prospective relief are not treated as actions
against the State).

Of course, as this Court previously noted, the Ex parte Young exception applies
when the plaintiff demonstrates that the state officer has some connection with
the enforcement of the disputed act. See Doe v. Jindal, No. 11-388, 2011 WL
3925042, at *5 (E.D. La. Sept. 7, 2011)(citing K.P., 627 F.3d at 124 (citing Ex
parte Young, 209 U.S. at 160), and noting that the purpose of the connection
requirement is to prevent litigants from misusing the exception)). The Fifth
Circuit U.S. Court of Appeals instructs:

Ex Parte Young gives some guidance about the required
connection between a state actor and an allegedly
unconstitutional act. The fact that the state officer, by virtue of his
office, has some connection with the enforcement of the act, is the
important and material fact, and whether it arises out of the general
law, or is specially created by the act itself, is not material so long
as it exists.

Id. (quoting Ex parte Young, 209 U.S. at 157). . . . .

[I]n determining whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into
Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 3 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 4
whether [the] complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective. Stewart, 131 S.Ct. at 1639 (quoting
Verizon Md. Inc. v. Public Serv. Commn of Md., 535 U.S. 635, 645 (2002)). The
plaintiffs lawsuit satisfies this inquiry: they allege an ongoing violation of federal
law pursuant to 1983 (by alleging that the defendants continue to fail to remedy
the Equal Protection violation conduct focused in Doe I). They do also seek relief
that is indeed prospective in nature: declaratory relief that their continued
subjection to sex offender registration and notification requirements violates the
Equal Protection clause; that they be removed from the registry; and that the
records documenting that they are sex offenders be expunged.

Doe v. Jindal. Case 2:12-cv-01670-MLCF-ALC Document 55 Filed 12/20/12 pp. 13-17.
PERTINENT FACTS
We ask this Honorable Court to take judicial notice of the fact that the Louisiana
Attorney General is quintessentially the official responsible for enforcing the laws of Louisiana.
Rule 5.1 of the Federal Rules of Civil Procedure requires litigants challenging the
constitutionality of a state statute to serve the states Attorney General with Citation. Fed. R.
Civ. P. 5.1 (a)(2).
In IN RE ANGELA MARIE COSTANZA and CHASITY SHANELLE BREWER, 15th
Judicial District Court, Parish of Lafayette, State of Louisiana, Division C, Civil Action No.
2013-33539 and the case on appeal, No. 13-01049-CA, in the Louisiana Third Circuit Court of
Appeal, the trial court dismissed the lawsuit sua sponte finding no cause of action and the
Louisiana Attorney General represents the State of Louisiana in both. The issue before the state
court is similarly situated to the case of the Plaintiffs herein, Courtney and Nadine Blanchard.
More particularly, the plaintiffs in that matter are Angela Marie Contanza and Chastity Shanelle
Brewer, two adult women who by their lawful marriage in California compose a contemporary
family unit, domiciled in Lafayette, Louisiana, and who claim that any statutes, administrative
Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 4 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 5
rule, jurisprudence, or any other source of law in and for the State of Louisiana that denies the
recognition and full faith and credit of a valid foreign Certificate of Marriage lawfully issued to
persons of the same sex should be held invalid, for no legitimate purpose overcomes the purpose
and effect to disparage and to injure those whom a state, by its marriage laws, sought to protect
in personhood and dignity; by seeking to displace this protection and treating those persons as
living in marriage less respected than others, said source(s) of law are in violation of the Fifth
and Fourteenth Amendments to the Constitution of the United States; and a ruling that such
denial of full faith and credit violates Article IV, Section 1 of the Constitution of the United
States. As such, the plaintiffs are praying for an order declaring any statute, administrative rule,
jurisprudence, or any other source of law in and for the State of Louisiana that denies the
recognition and/or full faith and credit of a valid marriage between persons of the same sex be
invalidated, unenforceable and unconstitutional and that the order the appropriate state agencies,
including but not limited to, the Clerk of Court in an for the Parish of Lafayette, Louisiana to
take all appropriate measures to facilitate the recognition of the marriage between the Petitioners
listed herein.
Finally, in 2006, Frank Perez, General Counsel with the Department of Health and
Hospitals in Louisiana requested a legal opinion from the Louisiana Attorney General on the
recognition of same-sex marriage in another state on adoptions. In Opinion Number 06-0325,
the Attorney General provided the following opinion:
Dear Mr. Perez:

This office is in receipt of your request for an Opinion from the Attorney General
concerning whether citizens from another state can demand the Vital Records
Registrar accept an out-of-state adoption judgment (which would require the Vital
Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 5 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 6
Records Registrar to seal an original Louisiana birth certificate and create a new
birth certificate listing two fathers as opposed to a mother and a father or a single
parent) based upon the Full Faith and Credit Clause of the United States
Constitution.

Your concerns and the Attorney Generals responses to those concerns are
presented as follows:

If a Louisiana adoption can only be had by a single person or a married couple,
and if the Vital Records Laws (LA. REV. STAT. 40:32, et seq.) require the
completion of a birth certificate by listing the names of the mother and father of
the child, must the Vital Records Registrar give full faith and credit to an out-of-
state adoption judgment obtained by two unmarried individuals adopting jointly?
The answer to this question is no. The Louisiana Childrens Code provides a
single person, eighteen years or older, or a married couple jointly may petition to
adopt a child through an agency. Similarly, only a single person, eighteen years or
older, or a married couple jointly may petition to privately adopt a child. Finally,
only a stepparent, stepgrandparent, great-grandparent, grandparent, aunt, great
aunt, uncle, great uncle, sibling, or first cousin may petition to intrafamilially
adopt a child if certain elements are met. Accordingly, only single persons over
the age of eighteen, married couples, and family members (who meet certain
criterion) may adopt children in Louisiana. There is no provision allowing for two
unmarried persons (whether of the same sex or not) to adopt a child jointly.

You are now confronted by a situation wherein two unmarried individuals (who
happen to be of the same sex) are demanding the Vital Records Registrar accept
an out-of-state adoption judgment (which would require the Vital Records
Registrar to seal an original Louisiana birth certificate and create a new birth
certificate listing two fathers) based upon the Full Faith and Credit Clause of the
United States Constitution. But Louisiana is not required to accept such an out-of-
state judgment under the Full Faith and Credit Clause of the United States
Constitution if it violates Louisiana public policy.

Louisiana has a strong public policy against unmarried persons adopting jointly
(as evidenced by the restrictive parameters in LA. CH. CODE arts. 1198 and
1221). To that end, the Vital Records Registrar is not required to accept an out-of-
state adoption judgment which names two unmarried persons as the adoptive
parents. And we are accordingly of the opinion that if and when the Vital Records
Registrar refuses to accept such an out-of-state judgment, he would not be
violating the Full Faith and Credit Clause of the United States Constitution.

Op.Atty.Gen., No. 06-0325 (April 18, 2007), 2007 WL 1438453.

Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 6 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 7
ARGUMENT

It is respectfully submitted that the Ex parte Young exception to Sovereign Immunity
exists in the matter at hand. In your Honors own words: the iconic Ex parte Young exception
rests on the premise...that when a federal court commands a state official to do nothing more
than refrain from violating federal law, he is not the State for sovereign-immunity purposes.
Your plaintiffs herein are asking your Honor to command the Attorney General to refrain from
violating federal law by enforcing provisions in the Louisiana Constitution and the Louisiana
Civil Code that directs officials and the courts of Louisiana to specifically not recognize what
Louisiana describes as a purported marriage between two members of the same-sex who were
legally married in another state. Unlike Governor Jindal in Doe v. Jindal, Attorney General
Caldwell is the enforcing arm of Louisiana laws. He is the advocate and the defender of the
laws. He is actively seeking the Third Circuit Court of Appeal to enforce a Lafayette District
Judges sua sponte dismissal of a same-sex married couples efforts to have both parents
recognized in the life of their child. He instructs, among others, the Department of Health and
Hospitals on the recognition of same-sex unmarried couples and the effect that it has on vital
records. He is both the enforcer and the advisor to the enforcers. In this capacity, he does not
have the privilege of sovereign immunity. He is subject to this Courts authority and jurisdiction
to refrain from violating the United States Constitution.
Finally, as this action includes a 42 USC 1983 claim seeking an injunction, the
immunity cannot apply (see Will v. Michigan Dept of State Police, 491 U.S. 58, 71 n.10
(1989)(noting [o]f course a state official in his or her official capacity, when sued for injunctive
Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 7 of 8


Memorandum In Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 8
relief, would be a person under 1983 because official-capacity actions for prospective relief
are not treated as actions against the State).

CONCLUSION

Based upon the foregoing, it is respectfully suggested that the Attorney Generals Motion
to Dismiss under 11
th
Amendment Sovereign Immunity is without merit.
WHEREFORE, petitioner prays for oral argument and that after due proceedings are had
that the Attorney Generals Motion be dismissed with prejudice.
Respectfully submitted:


SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs


CERTIFICATE OF SERVICE

I hereby certify that I have served upon Defense counsel of record a copy of the
foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill
at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on November 8, 2013, I
electronically filed the foregoing with the Clerk of Court by using the CM/EMF system, which
will send a notice of filing to all counsel of record.

_________________________
Scott J. Spivey, Esq.
Case 2:13-cv-05090-MLCF-ALC Document 26 Filed 11/08/13 Page 8 of 8
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


REQUEST FOR ORAL ARGUMENT ON THE ATTORNEY GENERALS
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Now into Court, through undersigned counsel, come plaintiffs/respondents herein and
request this Honorable Court for Oral Argument on the Attorney Generals Motion to Dismiss
for Lack of Subject Matter Jurisdiction with the Notice of Submission for hearing before the
Honorable Martin L.C. Feldman, United States District Court Judge, Eastern District of
Louisiana, 500 Poydras Street, New Orleans, Louisiana on the 27th day of November 2013 at 10
a.m.
Respectfully submitted:

SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs



Case 2:13-cv-05090-MLCF-ALC Document 26-1 Filed 11/08/13 Page 1 of 2


Request for Oral Argument on the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 2
CERTIFICATE OF SERVICE

I hereby certify that I have served upon Defense counsel of record a copy of the
foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill
at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on November 8, 2013, I
electronically filed the foregoing with the Clerk of Court by using the CM/EMF system, which
will send a notice of filing to all counsel of record.

_________________________
Scott J. Spivey, Esq.
Case 2:13-cv-05090-MLCF-ALC Document 26-1 Filed 11/08/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


REQUEST FOR ORAL ARGUMENT ON THE ATTORNEY GENERALS
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Now into Court, through undersigned counsel, come plaintiffs/respondents herein and
request this Honorable Court for Oral Argument on the Attorney Generals Motion to Dismiss
for Lack of Subject Matter Jurisdiction with the Notice of Submission for hearing before the
Honorable Martin L.C. Feldman, United States District Court Judge, Eastern District of
Louisiana, 500 Poydras Street, New Orleans, Louisiana on the 27th day of November 2013 at 10
a.m.
Respectfully submitted:

SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs



Case 2:13-cv-05090-MLCF-ALC Document 27 Filed 11/12/13 Page 1 of 2


Request for Oral Argument on the Motion to Dismiss for Lack of Subject Matter Jurisdiction
Robicheaux v. Caldwell
Page 2
CERTIFICATE OF SERVICE

I hereby certify that I have served upon Defense counsel of record a copy of the
foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill
at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on November 8, 2013, I
electronically filed the foregoing with the Clerk of Court by using the CM/EMF system, which
will send a notice of filing to all counsel of record.

_________________________
Scott J. Spivey, Esq.
Case 2:13-cv-05090-MLCF-ALC Document 27 Filed 11/12/13 Page 2 of 2
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX CI VI L ACTI ON
v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON " F"
LOUI SI ANA ATTORNEY GENERAL
ORDER
Bef or e t he Cour t i s t he At t or ney Gener al ' s mot i on t o di smi ss
or , i n t he al t er nat i ve, mot i on t o t r ansf er f or i mpr oper venue. I T
I S HEREBY ORDERED t hat t he hear i ng dat e on t he def endant ' s mot i on
i s cont i nued t o November 27, 2013, t o be deci ded on t he paper s,
unl ess ot her wi se or der ed.
New Or l eans, Loui si ana, November 13, 2013
______________________________
MARTI N L. C. FELDMAN
UNI TED STATES DI STRI CT J UDGE
1
Case 2:13-cv-05090-MLCF-ALC Document 29 Filed 11/13/13 Page 1 of 1
1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
*
******************************************************************************
ATTORNEY GENERALS MOTION FOR LEAVE TO FILE REPLY MEMORANDUM
IN SUPPORT OF THE MOTION TO DISMISS FOR LACK OF JURISDICTION

NOW INTO COURT, through undersigned counsel, come the named Defendant, James
D. Buddy Caldwell, in his official capacity as Attorney General of the State of Louisiana, who
requests leave of court to file the attached reply memorandum in support of their motion to
dismiss [Rec. Doc. No. 24].
1.
The Plaintiffs filed an opposition to the Attorney Generals motion to dismiss on
November 8, 2013 [Rec. Doc. No. 26].
2.
The attached reply memorandum is submitted to respond to the Plaintiffs arguments and
interpretations of law as set forth in the Plaintiffs opposition.
3.
The Attorney General maintains that this reply memorandum will assist the Court in its
consideration of the arguments raised in the motion to dismiss.

Case 2:13-cv-05090-MLCF-ALC Document 30 Filed 11/25/13 Page 1 of 2
2
WHEREFORE, the Attorney General requests leave of court to file the attached reply
memorandum in support of their motion to dismiss [Rec. Doc. No. 24] in the above captioned
matter.
RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

/s/ Jessica MP Thornhill_____________
Angelique Duhon Freel (La. Bar # 28561)
Jessica MP Thornhill (La. Bar #34118)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098
Email: thornhillj@ag.state.la.us
freela@ag.state.la.us

Attorneys for James D. Caldwell, in his official
capacity as Louisiana Attorney General

CERTIFICATE OF SERVICE
I hereby certify that I have served upon Plaintiffs counsel of record a copy the foregoing
Memorandum, properly addressed and with proper postage prepaid this 25th day of November
2013.

_/s/ Jessica Thornhill__
Jessica MP Thornhill
Case 2:13-cv-05090-MLCF-ALC Document 30 Filed 11/25/13 Page 2 of 2
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************
THE ATTORNEY GENERALS REPLY MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

MAY IT PLEASE THE COURT, through undersigned counsel, comes James D.
Buddy Caldwell, in his official capacity as Attorney General of the State of Louisiana, who
adopts in extension those arguments raised in his Memorandum in Support of the Motion to
Dismiss for Lack of Subject Matter Jurisdiction
1
filed on November 6, 2013 and further replies
to the Plaintiffs Memorandum in Opposition to the Attorney Generals Motion to Dismiss for
lack of Subject Matter Jurisdiction.
2

The Attorney General again appears solely for the purpose of asserting the lack of subject
matter jurisdiction. He specifically reserves and retains any and all rights and privileges
available to him to file motions to dismiss on alternative grounds, raise affirmative defenses not
now asserted, and/or contest the substance and merit of Plaintiffs constitutional claims including
their request for injunctive relief.
I. LAW AND ARGUMENT
The Plaintiffs opposition memorandum fails to set forth the necessary material to support
the application of the narrow Ex Parte Young exception to the Attorney General. Despite the

1
Rec. Doc. 24.
2
Rec. Doc. 26.
Case 2:13-cv-05090-MLCF-ALC Document 30-1 Filed 11/25/13 Page 1 of 6
2
Plaintiffs argument to the contrary, the Attorney General is entitled to Eleventh Amendment
immunity in this matter. To reiterate the burden is on the Plaintiffs to show this Honorable Court
has jurisdiction.
3
For this narrow exception to apply, the Plaintiffs must show all the
requirements of Ex Parte Young are met. Ex Parte Young requires: 1) the plaintiff seeks
prospective relief; 2) the defendant has a connection with the enforcement of the Act; and 3)
show the defendant is commencing or threatening to enforce the provision.
4
Here, the Plaintiffs
cannot meet their burden as a matter of law.
The Attorney General is entitled to Eleventh Amendment immunity because the Plaintiffs
cannot show the he has the necessary connection with the challenged provisions and cannot show
the he is enforcing or threatening to enforce the challenged provisions. Both of which are
required for the Ex Parte Young exception to apply.
A. The Attorney General does not have the nexus required for Ex Parte Young
Nowhere do the Plaintiffs suggest that the Attorney General has a direct connection with
the challenged provisions. The Plaintiffs fail to point to any provision of law that connects the
Attorney General with the challenged provisions other than his general duty as chief legal
officer of the state. Yet, his general duty does not amount to a significant enough of a
connection to meet the nexus required.
Further, it can be inferred the Plaintiffs believe the general duty of the Attorney General
satisfies the Ex Parte Young nexus requirement. This is patently false, as this Honorable Court
addressed in Doe v. Jindal
5
the general duty of the governor is insufficient to satisfy the nexus
required by Ex Parte Young. The Attorney Generals role here is analogous to Doe v. Jindal,
6
as

3
Ramming v. United States, 281 F.3d 158, 161 (5
th
Cir. 2001).
4
Ex Parte Young, 209 U.S. 123 (1908).
5
Doe v. Jindal, CIV.A. 11-388, 2011 WL 3925042, *5 (E.D. La. Sept. 7, 2011)(unpublished opinion).
6
Id.
Case 2:13-cv-05090-MLCF-ALC Document 30-1 Filed 11/25/13 Page 2 of 6
3
discussed in greater detail in the Attorney Generals memorandum in support of the motion to
dismiss.
7
No matter, it is clear the Attorney General does not have the nexus necessary for the
narrow Ex Parte Young exception to trump his Eleventh Amendment immunity.
The Plaintiffs reliance on Doe v. Caldwell
8
is misplaced. Whether the Ex Parte Young
exception applies is a fact intensive, individual based determination. The Plaintiffs in their
opposition incorrectly assert that Doe v. Caldwell
9
specifically decided the issue that is currently
before this Honorable Court.
10
Even though that ruling addressed Ex Parte Young and the
Attorney General, it did not decide the issue that is currently before this Honorable Court, which
is whether the Plaintiffs have shown the Attorney General has the nexus necessary for Ex Parte
Young to apply, and whether the Attorney General is commencing or threatening to commence
action under the challenged provisions. Although the Plaintiffs provided an extensive block
quote from Doe v. Caldwell,
11
they failed to include an essential sentence from that opinion,
which provides:
But the defendants do not suggest that they lack the requisite connection with the
enforcement of the continued registration requirement necessary to establish the
applicability of the Ex parte Young exception to their sovereign immunity, rather
defendants contend only that not all the relief the plaintiffs seek is prospective,
and they insist that plaintiffs fail to allege an ongoing violation of federal law.
12

That sentence provides the necessary context of this Honorable Courts ruling in relation to the
current matter. Unlike in the case at hand, in Doe v. Caldwell the defendant did not raise an
issue with the requisite connection requirement of Ex Parte Young. Thus, the Plaintiffs
assertion that this Honorable Court has already decided this matter is blatantly false.

7
Rec. Doc. 24.
8
Doe v. Caldwell, 913 F. Supp. 2d 262 (E.D. La. 2012).
9
Id.
10
Rec. Doc. 26.
11
Caldwell, 913 F. Supp. 2d 262.
12
Id. at 272-73.
Case 2:13-cv-05090-MLCF-ALC Document 30-1 Filed 11/25/13 Page 3 of 6
4
B. The Attorney General is not enforcing or threatening to enforce either
challenged provision.

Even if this Honorable Court agrees with the Plaintiffs that the Attorney General has the
connection required for Ex Parte Young, the Plaintiffs still fail to show the Attorney General is
enforcing the provisions in question. The information within the Plaintiffs opposition
memorandum fails to assert that the Attorney General is enforcing these provisions, when put in
the proper context. Without any indication the Attorney General is enforcing or threatening to
enforce these provisions the Attorney General must retain his Eleventh Amendment immunity.
The Plaintiffs implication that because the Federal Rules of Civil Procedure require the
Attorney General to be notified when a state statutes constitutionality is challenged indicates the
connection required for Ex Parte Young is seriously flawed. Such a requirement in no way
equates to the nexus required of the Ex Parte Young exception. The purpose of the notification
requirement in the civil procedure rules is to provide the Attorney General with the knowledge of
the challenge so he is aware of issues of law within his purview. He has the discretion to become
involved but is in no way required to do so. This rule provides greater support for the fact that
the Attorney General is not a proper party in this matter as well.
13

Further, the Attorney Generals role in the In Re Angela Marie Costanza and Chasity
Shanelle Brewer
14
is in a monitor capacity. The Plaintiffs falsely stated the Attorney General
represents the State of Louisiana in both [15
th
JDC and Third Circuit].
15
The only role played
by the Attorney General was ordered by the Louisiana Third Circuit Court of Appeal. He is not

13
Such a discussion is more appropriate in a Fed. R. Civ. P. 12(b)(6) motion, which if necessary will be filed
at a later date.
14
Docket No. 13-01049-CA (La. 3 Cir App. October 2013).
15
Rec. Doc. 26, p. 4. The Attorney General has not been made a party in this matter at the trial court level or
the appellate level.
Case 2:13-cv-05090-MLCF-ALC Document 30-1 Filed 11/25/13 Page 4 of 6
5
a party defendant in either matter.
16
The Attorney General submitted an amicus curiae brief
when ordered by the Louisiana Third Circuit Court of Appeal to respond to an appeal lodged
with the court. The Attorney General complied addressing only Louisiana Code Civ. P. art. 934.
At no time did the Attorney General address the merits of In Re Angela Marie Costanza and
Chasity Shanelle Brewer. Such a role, does not amount to enforcing the provisions at issue here
as the constitutionality of La. Code Civ. P. art. 934 is not before this Honorable Court.
As to Louisiana Attorney General Opinion Number 06-0325, the Attorney General is
required by law to give his opinion in writing upon all questions of law when requested by any
state board, agency or commission.
17
Providing a seven year-old advisory opinion that simply
states what the Louisiana law says, does not establish enforcement or a threat of enforcement of
the challenged provision as required by Ex Parte Young. Additionally, this opinion was not
about La. Const. art. XII, 15 or La. Civ. C. art. 3520.
In summary, the Attorney General should retain his Eleventh Amendment immunity in
this matter. The Plaintiffs have failed to provide the necessary support to show the Attorney
General has the connection required for Ex Parte Young to apply. Being the Chief Legal Officer
of the State of Louisiana does not create the nexus required.
18
Further, even if the Court were to
find that the Plaintiffs have established the nexus required, they have failed to show that the
Attorney General is enforcing or threatening to do so. Providing advisory legal opinions, and
complying with appellate court orders on matters other than the provisions at issue does not
amount to the Attorney General enforcing or threatening to enforce the provisions challenged.


16
The Louisiana Supreme Court has specifically held that the Attorney General is not a proper party just
because the constitutionality of a statute is challenged. Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/30/94),
646 So.2d 859, 864.
17
La. R.S. 49:251(B).
18
See Rec. Doc. 24.
Case 2:13-cv-05090-MLCF-ALC Document 30-1 Filed 11/25/13 Page 5 of 6
6
II. CONCLUSION
WHEREFORE, James D. Buddy Caldwell, in his official capacity as Attorney General
of the State of Louisiana prays that an Order be issued by this Honorable Court which:
1. Grants the Attorney Generals Motion and Dismisses the Plaintiffs
Complaint pursuant to Fed. R. Civ. P. 12(b)(1); and
2. For all other legal and equitable remedies available to them.

RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

_________/s/ Jessica MP Thornhill___________
Jessica MP Thornhill (La. Bar # 34118)
Angelique Duhon Freel (La. Bar # 28561)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098



CERTIFICATE OF SERVICE

I do hereby certify that a copy of the foregoing pleading has been served upon all counsel
of record by the Courts CM/ECF system on this 25th day of November 2013.


________/s/ Jessica MP Thornhill__________
Jessica MP Thornhill
Case 2:13-cv-05090-MLCF-ALC Document 30-1 Filed 11/25/13 Page 6 of 6
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************

ORDER

IT IS ORDERED that the Motion for Leave to File Reply Memorandum In Support
of the Motion to Dismiss for Lack of Jurisdiction filed by James D. Buddy Caldwell, in his
official capacity as Attorney General of the State of Louisiana, is GRANTED.
New Orleans, Louisiana, this ______ day of November, 2013.

_____________________________________
Judge Martin L.C. Feldman
United States District Court
Eastern District of Louisiana


UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX, ET AL. CI VI L ACTI ON
v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON " F"
LOUI SI ANA ATTORNEY GENERAL
ORDER
Bef or e t he Cour t i s pl ai nt i f f s' r equest f or or al ar gument on
def endant ' s mot i on t o di smi ss f or l ack of j ur i sdi ct i on. I T I S
HEREBY ORDERED t hat pl ai nt i f f s' r equest f or or al ar gument i s
DENI ED.
New Or l eans, Loui si ana, November 27, 2013
______________________________
MARTI N L. C. FELDMAN
UNI TED STATES DI STRI CT J UDGE
1
Case 2:13-cv-05090-MLCF-ALC Document 32 Filed 11/27/13 Page 1 of 1
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX CI VI L ACTI ON
v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON " F"
LOUI SI ANA ATTORNEY GENERAL
ORDER & REASONS
Bef or e t he Cour t ar e def endant ' s mot i ons t o di smi ss f or l ack
of j ur i sdi ct i on and t o di smi ss or t r ansf er f or i mpr oper venue. For
t he r easons t hat f ol l ow, t he mot i on t o di smi ss f or l ack of
j ur i sdi ct i on i s GRANTED, and t he mot i on t o di smi ss or t r ansf er f or
i mpr oper venue i s DENI ED as moot .
Background
Thi s ci vi l r i ght s l awsui t chal l enges t he const i t ut i onal i t y of
Loui si ana' s ban on same- sex mar r i age and i t s unwi l l i ngness t o
r ecogni ze same- sex mar r i ages ent er ed i nt o i n ot her st at es.
J onat han Robi cheaux mar r i ed hi s same- sex par t ner i n I owa, but he
l i ves i n Or l eans Par i sh, Loui si ana. He al l eges t hat Loui si ana' s
def ense of mar r i age amendment t o t he st at e const i t ut i on ( La. Const .
ar t . 12, 15) and Ar t i cl e 3520 of t he Loui si ana Ci vi l Code ( whi ch
decr ees t hat same- sex mar r i age vi ol at es Loui si ana' s st r ong publ i c
pol i cy and pr ecl udes r ecogni t i on of any such mar r i age cont r act f r om
1
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 1 of 7
anot her st at e) vi ol at e hi s f eder al const i t ut i onal r i ght s.
1
Robi cheaux f i r st br ought t hi s sui t al one, but has si nce
amended hi s compl ai nt t o i ncl ude hi s par t ner , Der ek Pent on, and
anot her same- sex coupl e who wer e al so mar r i ed i n I owa, but now l i ve
i n Loui si ana, Nadi ne and Cour t ney Bl anchar d. The pl ai nt i f f s sued
t he Loui si ana At t or ney Gener al J ames " Buddy" Cal dwel l , t he onl y
def endant i n t hi s l awsui t . The At t or ney Gener al has f i l ed t wo
mot i ons: f i r st , a mot i on t o di smi ss f or i mpr oper venue, t o t r ansf er
f or i mpr oper venue, or t o t r ansf er i n t he i nt er est of j ust i ce; and
second, a mot i on t o di smi ss f or l ack of j ur i sdi ct i on based on
El event h Amendment i mmuni t y.
I .
Because f eder al cour t s ar e cour t s of l i mi t ed j ur i sdi ct i on, t he
Cour t f i r st consi der s whet her i t has j ur i sdi ct i on her e. Mot i ons
f i l ed under Rul e 12( b) ( 1) of t he Feder al Rul es of Ci vi l Pr ocedur e
al l ow a par t y t o chal l enge t he Cour t s subj ect mat t er j ur i sdi ct i on.
Fed. R. Ci v. P. 12( b) ( 1) . The At t or ney Gener al chal l enges t hi s
Cour t s subj ect mat t er j ur i sdi ct i on, i nvoki ng t he doct r i ne of
1
I n par t i cul ar , Robi cheaux al l eges t hat t he st at e' s ban
on same- sex mar r i age and r ef usal t o r ecogni ze t he mar r i age cont r act
he ent er ed i nt o i n I owa:
( 1) depr i ves hi mof hi s f undament al r i ght t o mar r y i n vi ol at i on of
t he U. S. Const i t ut i on' s Four t eent h Amendment Due Pr ocess Cl ause;
( 2) depr i ves hi mof equal pr ot ect i on of t he l aw i n vi ol at i on of t he
U. S. Const i t ut i on' s Four t eent h Amendment because i t const i t ut es
di scr i mi nat i on on t he basi s of sexual or i ent at i on and/ or sex; and
( 3) vi ol at es t he Ful l Fai t h and Cr edi t Cl ause of t he U. S.
Const i t ut i on.
2
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 2 of 7
sover ei gn i mmuni t y. The bur den of pr oof f or a Rul e 12( b) ( 1) mot i on
t o di smi ss i s on t he par t y asser t i ng j ur i sdi ct i on. Rammi ng v.
Uni t ed St at es, 281 F. 3d 158, 161 ( 5
t h
Ci r . 2001) .
The El event h Amendment t o t he U. S. Const i t ut i on bar s sui t s by
pr i vat e ci t i zens agai nst a st at e i n f eder al cour t . K. P. v.
LeBl anc, 627 F. 3d 115, 124 ( 5
t h
Ci r . 2010) ( ci t i ng Hut t o v. Fi nney,
437 U. S. 678, 700 ( 1978) ) . Thi s i mmuni t y ext ends t o pr ot ect st at e
act or s who ar e act i ng i n t hei r of f i ci al capaci t i es. I d. Ther e i s,
of cour se, a nar r ow except i on t o t hi s i mmuni t y f r om sui t : t he
i coni c Ex par t e Young except i on, whi ch i s based on t he l egal
f i ct i on t hat a sover ei gn st at e cannot act unconst i t ut i onal l y[ ;
t ] hus, wher e a st at e act or enf or ces an unconst i t ut i onal l aw, he i s
st r i pped of hi s of f i ci al cl ot hi ng and becomes a pr i vat e per son
subj ect t o sui t . See i d. ( emphasi s added) ( ci t i ng Ex par t e Young,
209 U. S. 123 ( 1908) ) ; see al so Wi l l v. Mi chi gan Dep t of St at e
Pol i ce, 491 U. S. 58, 71 n. 10 ( 1989) ( not i ng [ o] f cour se a st at e
of f i ci al i n hi s or her of f i ci al capaci t y, when sued f or i nj unct i ve
r el i ef , woul d be a per son under 1983 because of f i ci al - capaci t y
act i ons f or pr ospect i ve r el i ef ar e not t r eat ed as act i ons agai nst
t he St at e ) .
The Ex par t e Young except i on appl i es when t he pl ai nt i f f
demonst r at es t hat t he st at e of f i cer has some connect i on wi t h t he
enf or cement of t he di sput ed act . K. P. , 627 F. 3d at 124 ( ci t i ng Ex
par t e Young, 209 U. S. at 160, and not i ng t hat t he pur pose of t he
3
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 3 of 7
connect i on r equi r ement i s t o pr event l i t i gant s f r om mi susi ng t he
except i on) . As t he Fi f t h Ci r cui t U. S. Cour t of Appeal s has
obser ved:
Ex parte Young gi ves some gui dance about t he r equi r ed
connect i on bet ween a st at e act or and an al l egedl y
unconst i t ut i onal act . The f act t hat t he st at e of f i cer ,
by vi r t ue of hi s of f i ce, has some connect i on wi t h t he
enf or cement of t he act , i s t he i mpor t ant and mat er i al
f act , and whet her i t ar i ses out of t he gener al l aw, or i s
speci al l y cr eat ed by t he act i t sel f , i s not mat er i al so
l ong as i t exi st s.
I d. ( quot i ng Ex par t e Young, 209 U. S. at 157) . Ex par t e Young
l i mi t s t he pl ai nt i f f t o pr ospect i ve r el i ef , and bar s money damages.
Ver i zon Md. I nc. v. Pub. Ser v. Comm' n of Md. , 535 U. S. 635, 645
( 2002) . To det er mi ne whet her Ex par t e Young' s mandat e i s
sat i sf i ed, " a cour t need onl y conduct a st r ai ght f or war d i nqui r y
i nt o whet her [ t he] compl ai nt al l eges an ongoi ng vi ol at i on of
f eder al l aw and seeks r el i ef pr oper l y char act er i zed as
pr ospect i ve. " I d. ( i nt er nal quot at i on mar ks and ci t at i ons
omi t t ed) ( al t er at i on i n or i gi nal ) .
Because pl ai nt i f f s, as t he r ecor d st ands, have made no ef f or t
or at t empt t o seek of f i ci al r ecogni t i on of t hei r same- sex mar r i ages
by t he St at e of Loui si ana, t he At t or ney Gener al submi t s he l acks
t he r equi si t e connect i on wi t h t he enf or cement of t he chal l enged
pr ovi si ons t hat i s necessar y t o meet t he i mper at i ves of t he Ex
par t e Young except i on t o sover ei gn i mmuni t y. I nvoki ng Okpal obi v.
4
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 4 of 7
Fost er , 244 F. 3d 405, 411 ( 5
t h
Ci r . 2001) ,
2
Mr . Cal dwel l cont ends
t hat pl ai nt i f f s must al l ege t hat he has bot h a par t i cul ar dut y t o
enf or ce t he chal l enged pr ovi si ons i n quest i on, and a demonst r at ed
wi l l i ngness t o exer ci se t hat dut y. To t he ext ent t hat t he At t or ney
Gener al r eads t he scope of t he Ex par t e Young except i on based on
t he Fi f t h Ci r cui t s anal ysi s i n Okpal obi , t he Cour t not es t hat t he
Fi f t h Ci r cui t s di scussi on of sover ei gn i mmuni t y i n Okpal obi was i n
a pl ur al i t y opi ni on. As t he Fi f t h Ci r cui t has obser ved, [ b] ecause
t hat par t of t he en banc opi ni on di d not gar ner maj or i t y suppor t ,
t he El event h Amendment anal ysi s i s not bi ndi ng pr ecedent . K. P. ,
627 F. 3d at 124 ( ci t i ng Uni t ed St at es v. Fer guson, 211 F. 3d 878,
885 ( 5
t h
Ci r . 2000) ) . Never t hel ess, t he pl ur al i t y comment s ar e
hel pf ul , and ar e echoed i n t he case l i t er at ur e.
The Cour t f i nds t hat pl ai nt i f f s f al l shor t of sat i sf yi ng t he
some connect i on r equi r ement of Ex par t e Young even wi t hout
Okpal obi . Pl ai nt i f f s ask t he Cour t " t o t ake j udi ci al not i ce of t he
f act t hat t he Loui si ana At t or ney Gener al i s qui nt essent i al l y t he
of f i ci al r esponsi bl e f or enf or ci ng t he l aws of Loui si ana. " The
At t or ney Gener al ' s sweepi ng r esponsi bi l i t y t o enf or ce t he l aws of
t he St at e of Loui si ana l acks t he Ex par t e Young speci f i ci t y nexus
2
I n Okpal obi , t he Fi f t h Ci r cui t hel d t hat t o det er mi ne
whet her t he Ex par t e Young except i on appl i es, t he Cour t shoul d
gauge ( 1) t he abi l i t y of t he of f i ci al t o enf or ce t he st at ut e at
i ssue under hi s st at ut or y or const i t ut i onal power s, and ( 2) t he
demonst r at ed wi l l i ngness of t he of f i ci al t o enf or ce t he st at ut e.
244 F. 3d at 417.
5
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 5 of 7
bet ween t he At t or ney Gener al and t he al l eged unconst i t ut i onal
pr ovi si ons t hat i s essent i al t o def eat sover ei gn i mmuni t y.
Pl ai nt i f f s al so ci t e t o a pendi ng st at e- cour t act i on, I n r e
Cost anza,
3
i nvol vi ng di f f er ent pl ai nt i f f s but si mi l ar i ssues and
t he same def endant ; t hey ar gue t hat t hat case i l l ust r at es t he
At t or ney Gener al ' s abi l i t y and demonst r at ed wi l l i ngness t o enf or ce
t he pr ovi si ons at i ssue her e. The Cour t di sagr ees. Pl ai nt i f f s
cont end t hat t he At t or ney Gener al r epr esent s t he St at e of Loui si ana
as t he def endant i n t hat case. The r ef er enced case mi ght
demonst r at e t he At t or ney Gener al ' s wi l l i ngness t o def end t he
pr ovi si ons at i ssue her e, but i t i n no way f ocuses or est abl i shes
hi s wi l l i ngness t o enf or ce t hem. See K. P. , 627 F. 3d at 124
( expl ai ni ng t hat " a st at e act or must be connect ed wi t h an act ' s
' enf or cement ' f or t he [ Ex par t e Young] except i on t o appl y, " and
t hat " ' [ e] nf or cement ' t ypi cal l y i nvol ves compul si on or const r ai nt . "
( ci t at i ons omi t t ed) ) .
Pl ai nt i f f s al so i nvoke an advi sor y opi ni on by t he At t or ney
Gener al , at t he r equest of Fr ank Per ez, Gener al Counsel wi t h t he
Depar t ment of Heal t h and Hospi t al s i n Loui si ana, i n whi ch t he
At t or ney Gener al opi ned t hat t he Ful l Fai t h and Cr edi t Cl ause of
t he Uni t ed St at es Const i t ut i on does not r equi r e t he Vi t al Recor ds
Regi st r ar t o accept an out - of - st at e adopt i on j udgment t hat names as
3
Plaintiffs provide neither a full citation nor a copy
of this case to the Court.
6
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 6 of 7
t he adopt i ve par ent s t wo per sons consi der ed mar r i ed i n anot her
j ur i sdi ct i on but not i n Loui si ana. Not abl y, i n r eachi ng t hat
r esul t , t he At t or ney Gener al expl i ci t l y r el i ed on La. Chi l d. Code
ar t s. 1198 and 1221, not on La. Const . ar t . 12, 15 or La. Ci v.
Code ar t . 3520, t he pr ovi si ons at i ssue i n t hi s l awsui t .
Fi nal l y, pl ai nt i f f s mai nt ai n t hat because t hey seek i nj unct i ve
r el i ef and not money damages, sover ei gn i mmuni t y " cannot appl y. "
See Wi l l , 491 U. S. at 71 n. 10. They ar e whol l y mi st aken. A
r equest f or pr ospect i ve r el i ef i s one r equi si t e el ement , but not
i t sel f suf f i ci ent , t o i nvoke t he Ex par t e Young except i on.
Ver i zon, 535 U. S. at 645.
Pl ai nt i f f s have f ai l ed t o meet t hei r bur den of est abl i shi ng
t hi s Cour t ' s subj ect mat t er j ur i sdi ct i on. Rammi ng, 281 F. 3d at
161. Def endant ' s mot i on t o di smi ss f or l ack of j ur i sdi ct i on based
on sover ei gn i mmuni t y i s GRANTED. Def endant ' s mot i on t o di smi ss or
t r ansf er f or i mpr oper venue i s DENI ED as moot .
New Or l eans, Loui si ana, November ___, 2013
______________________________
MARTI N L. C. FELDMAN
UNI TED STATES DI STRI CT J UDGE
7
26
Case 2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 7 of 7
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************

ORDER

IT IS ORDERED that the Motion for Leave to File Reply Memorandum In Support
of the Motion to Dismiss for Lack of Jurisdiction filed by James D. Buddy Caldwell, in his
official capacity as Attorney General of the State of Louisiana, is GRANTED.
New Orleans, Louisiana, this ______ day of November, 2013.

_____________________________________
Judge Martin L.C. Feldman
United States District Court
Eastern District of Louisiana


DENIED. The requested reply
memorandum adds nothing new.
11.26.13
Case 2:13-cv-05090-MLCF-ALC Document 34 Filed 11/27/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION TO RECONSIDER UNDER
RULES 59 AND 60 OF THE FEDERAL RULES OF CIVIL PROCEDURE

NOW INTO COURT, through undersigned counsel, come JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD AND COURTNEY
BLANCHARD and move this Honorable Court to reconsider its Order signed on November 26,
2013, granting the Louisiana Attorney Generals Motion to Dismiss under Rule 12(b)(1) under
the concept of Sovereign Immunity. More particularly, your plaintiffs respectfully submit that
the enabling act of the State of Louisiana, Chapter 21, 22 Stat. 641, enacted February 20, 1811, is
a federal law in which the State of Louisiana is bound in its charter for enablement and
statehood, to create and maintain a Constitution that is republican, and consistent with the
constitution of the United States . . . [and] contain the fundamental principles of civil and
religious liberty and your plaintiffs herein have stated in their Second Amended complaint that
the State of Louisiana has violated this federal law. In addition, your plaintiffs respectfully
submit that they should be granted leave of court in the order to amend their complaint to avoid
dismissal by naming another state official that is an enforcer of the laws complained of therein
and for which they seek declaratory and injunctive relief.
Case 2:13-cv-05090-MLCF-ALC Document 35 Filed 12/02/13 Page 1 of 2


Robicheaux v. Caldwell
Page 2
WHEREFORE, petitioners pray that after all due proceedings had, the motion to dismiss
is denied because the State is not immune by virtue of the enabling act of the State of Louisiana,
Chapter 21, 22 Stat. 641, enacted February 20, 1811 or, in the alternative, the Order be amended
or modified to allow the plaintiffs 15 days to amend their Complaint to name an alternative
defendant.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 35 Filed 12/02/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN SUPPORT OF MOTION TO RECONSIDER UNDER
RULES 59 AND 60 OF THE FEDERAL RULES OF CIVIL PROCEDURE

MAY IT PLEASE THE COURT.
This matter comes on for cause on your plaintiffs motion to reconsider the Order signed
on November 26, 2013, granting the Louisiana Attorney Generals Motion to Dismiss under
Rule 12(b)(1) under the concept of Sovereign Immunity (Doc. 33). In this regard, your plaintiffs
respectfully submit that the Enabling Act of the State of Louisiana, Chapter 21, 22 Stat. 641,
enacted February 20, 1811, is a federal law in which the State of Louisiana is bound in its charter
for enablement and statehood, to create and maintain a Constitution that is republican, and
consistent with the constitution of the United States . . . [and] contain the fundamental principles
of civil and religious liberty and your plaintiffs herein have stated in their Second Amended
Complaint that the State of Louisiana has violated this federal law. In addition, your plaintiffs
respectfully submit that they should be granted leave of court in the order to amend their
complaint to avoid dismissal by naming another state official that is an enforcer of the laws
complained of therein and for which they seek declaratory and injunctive relief.

Case 2:13-cv-05090-MLCF-ALC Document 35-1 Filed 12/02/13 Page 1 of 11


Robicheaux v. Caldwell
Page 2
FRCP Rule 59. New Trial; Altering or Amending a Judgment

(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or
some of the issuesand to any partyas follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been
granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on
motion for a new trial, open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make new ones, and
direct the entry of a new judgment.

(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed
no later than 28 days after the entry of judgment.

(c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits,
they must be filed with the motion. The opposing party has 14 days after being
served to file opposing affidavits. The court may permit reply affidavits.

(d) New Trial on the Court's Initiative or for Reasons Not in the Motion. No later
than 28 days after the entry of judgment, the court, on its own, may order a new
trial for any reason that would justify granting one on a party's motion. After
giving the parties notice and an opportunity to be heard, the court may grant a
timely motion for a new trial for a reason not stated in the motion. In either event,
the court must specify the reasons in its order.

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.

FRCP Rule 60. Relief from a Judgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court
may correct a clerical mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of the record. The court
may do so on motion or on its own, with or without notice. But after an appeal has
been docketed in the appellate court and while it is pending, such a mistake may
be corrected only with the appellate court's leave.

Case 2:13-cv-05090-MLCF-ALC Document 35-1 Filed 12/02/13 Page 2 of 11


Robicheaux v. Caldwell
Page 3
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or

(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.

(1) Timing. A motion under Rule 60(b) must be made within a reasonable time
and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.

(2) Effect on Finality. The motion does not affect the judgment's finality or
suspend its operation.

(d) Other Powers to Grant Relief. This rule does not limit a court's power to:

(1) entertain an independent action to relieve a party from a judgment, order, or
proceeding;

(2) grant relief under 28 U.S.C. 1655 to a defendant who was not personally
notified of the action; or

(3) set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished: bills of review, bills
in the nature of bills of review, and writs of coram nobis, coram vobis, and audita
querela.

Case 2:13-cv-05090-MLCF-ALC Document 35-1 Filed 12/02/13 Page 3 of 11


Robicheaux v. Caldwell
Page 4
The issue at hand is sovereign immunity. Your Honor ruled that the plaintiffs failed to
state facts in their amended complaint that show that the Attorney General meets the Ex parte
Young requirements for an exception to the general rule of Sovereign Immunity under the 11
th

Amendment to the United States Constitution that was passed in 1794.
As your Honor is well-aware, the State of Louisiana was not a part of the United States of
America in 1794. As a result of the Louisiana Purchase Treaty with France (8 Stat. 800), dated
April 30, 1803, the United States government purchased the lands presently known as the
Louisiana Purchase and formed states, including most of what is presently the State of Louisiana.
Thereafter, the Territory of Orleans was a United States Territory while the government worked
to form a State. To this end, Congress passed the Louisiana Enabling Act, Ch. 21, 22 Stat. 641
on February 20, 1811. Among other provisions, Congress authorized:
the inhabitants of all that part of the territory or country ceded under the name of
Louisiana . . . to form for themselves a constitution and state government, and to
assume such name as they may deem proper, under the provisions and upon the
conditions hereinafter mentioned . . . [p]rovided, [t]he constitution to be formed,
in virtue of the authority herein given, shall be republican, and consistent with the
constitution of the United States ; that it shall contain the fundamental principles
of civil and religious liberty ; that it shall secure to the citizen the trial by jury in
all criminal cases, and the privilege of the writ of habeas corpus, conformable to
the provisions of the constitution of the United States ; and that after the
admission of the said territory of Orleans as a state into the Union, the laws which
such state may pass shall be promulgated and its records of every description shall
be preserved, and its judicial and legislative written proceedings conducted in the
language in which the laws and the judicial and legislative written proceedings of
the United States are now published and conducted.

22 Stat. 641, Ch. 21, Article 3.

Thereafter, and pursuant to this itemized authority, a Constitutional Convention was
formed, presided by Julien Poydras, and a Louisiana Constitution was formed, in which the
signers stated:
Case 2:13-cv-05090-MLCF-ALC Document 35-1 Filed 12/02/13 Page 4 of 11


Robicheaux v. Caldwell
Page 5
We, the Representatives of the People of all that part of the Territory or country
ceded under the name of Louisiana, by the treaty made at Paris, on the 30th day of
April 1803, between the United States and France, . . . in Convention Assembled
by virtue of an act of Congress, entitled an act to enable the people of the
Territory of Orleans to form a constitution and State government and for the
admission of said State into the Union on an equal footing with the original
States, and for other purpose: In order to secure to all the citizens thereof the
enjoyment of the right of Life, Liberty and property, do ordain and establish the
following constitution or form of government, and do mutually agree with each
other to form ourselves into a free and independent State, by the name of the State
of Louisiana. . . .

La. Const. of 1812.

In this Constitution of 1812, there was no provision for marriage or the defense of
marriage. Again, as your Honor is well-aware, the Louisiana Constitution was changed several
times nine to be exact particularly including succession, federal control, and return to home
state rule. The latest and present constitution with amendments is the Louisiana Constitution of
1921. Until 2004, the Louisiana Constitution never made reference to marriage. Marriage was
and remains under the Louisiana Civil Code, which has provided for such definition since the
original Roman Civil Code. However, by statewide vote for a Constitution amendment, the
defense of marriage provision was added to the Louisiana Constitution of 1921 under Article
XII General Provisions, added as 15. Defense of Marriage to wit:
Section 15. Marriage in the state of Louisiana shall consist only of the union of
one man and one woman. No official or court of the state of Louisiana shall
construe this constitution or any state law to require that marriage or the legal
incidents thereof be conferred upon any member of a union other than the union
of one man and one woman. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized. No official
or court of the state of Louisiana shall recognize any marriage contracted in any
other jurisdiction which is not the union of one man and one woman.

La. Const. Article XII, 15. Added by Acts 2004, No. 926, 1, approved
September 18, 2004, eff. October 19, 2004.

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Robicheaux v. Caldwell
Page 6
By this complaint, your plaintiffs respectfully submit that Article XII, 15 not only
violates the United States Constitution and other federal laws, but it violates the Louisiana
Enabling Act of the State of Louisiana, Ch. 21, 22 Stat. 641.
In Edelman v. Jordan 8212 1410, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974),
the United States Supreme Court provided us with a nice history and summary of the pertinent
law, while reviewing class action for injunctive and declaratory relief against the Illinois officials
administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AABD),
contending that they were violating federal law and denying equal protection of the laws by
following state regulations that did not comply with the federal time limits within which
participating States had to process and make grants with respect to AABD applications. The
Court stated as follows:
The historical basis of the Eleventh Amendment has been oft stated, and it
represents one of the more dramatic examples of this Court's effort to derive
meaning from the document given to the Nation by the Framers nearly 200 years
ago. A leading historian of the Court tells us:

'The right of the Federal Judiciary to summon a State as defendant
and to adjudicate its rights and liabilities had been the subject of
deep apprehension and of active debate at the time of the adoption
of the Constitution; but the existence of any such right had been
disclaimed by many of the most eminent advocates of the new
Federal Government, and it was largely owing to their successful
dissipation of the fear of the existence of such Federal power that
the Constitution was finally adopted.' 1 C. Warren, The Supreme
Court in United States History 91 (rev.ed.1973).

Despite such disclaimers, the very first suit entered in this Court at its
February Term in 1791 was brought against the State of Maryland by a firm of
Dutch bankers as creditors. Vanstophorst v. Maryland, see 2 Dall. 401 and
Warren, supra, at 91 n. 1. The subsequent year brought the institution of
additional suits against other States, and caused considerable alarm and
consternation in the country.

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Robicheaux v. Caldwell
Page 7
The issue was squarely presented to the Court in a suit brought at the
August 1792 Term by two citizens of South Carolina, executors of a British
creditor, against the State of Georgia. After a year's postponement for preparation
on the part of the State of Georgia, the Court, after argument, rendered in
February 1793, its short-lived decision in Chisholm v. Georgia, 2 Dall. 419. The
decision in that case, that a State was liable to suit by a citizen of another State or
of a foreign country, literally shocked the Nation. Sentiment for passage of a
constitutional amendment to override the decision rapidly gained momentum, and
five years after Chisholm the Eleventh Amendment was officially announced by
President John Adams. Unchanged since then, the Amendment provides:

'The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.'

While the Amendment by its terms does not bar suits against a State by its
own citizens, this Court has consistently held that an unconsenting State is
immune from suits brought in federal courts by her own citizens as well as by
citizens of another State. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.
842 (1890); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280
(1920); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873,
88 L.Ed. 1121 (1944); Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207,
12 L.Ed.2d 233 (1964); Employees v. Department of Public Health and Welfare,
411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). It is also well established
that even though a State is not named a party to the action, the suit may
nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v.
Department of Treasury, 323 U.S. 459, 65 ,S.Ct. 347, 89 L.Ed. 389 (1945), the
Court said:

'(W)hen the action is in essence one for the recovery of money
from the state, the state is the real, substantial party in interest and
is entitled to invoke its sovereign immunity from suit even though
individual officials are nominal defendants.' Id., at 464, 65 S.Ct., at
350.

Thus the rule has evolved that a suit by private parties seeking to impose a
liability which must be paid from public funds in the state treasury is barred by
the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, supra;
Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 66 S.Ct. 745, 90
L.Ed. 862 (1946).

The Court of Appeals in this case, while recognizing that the Hans line of
cases permitted the State to raise the Eleventh Amendment as a defense to suit by
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Robicheaux v. Caldwell
Page 8
its own citizens, nevertheless concluded that the Amendment did not bar the
award of retroactive payments of the statutory benefits found to have been
wrongfully withheld. The Court of Appeals held that the above-cited cases, when
read in light of this Court's landmark decision in Ex parte Young, 209 U.S. 123,
28 S.Ct. 441, 52 L.Ed. 714 (1908), do not preclude the grant of such a monetary
award in the nature of equitable restitution.

Petitioner concedes that Ex parte Young, supra, is no bar to that part of the
District Court's judgment that prospectively enjoined petitioner's predecessors
from failing to process applications within the time limits established by the
federal regulations. Petitioner argues, however, that Ex parte Young does not
extend so far as to permit a suit which seeks the award of an accrued monetary
liability which must be met from the general revenues of a State, absent consent
or waiver by the State of its Eleventh Amendment immunity, and that therefore
the award of retroactive benefits by the District Court was improper.

Ex parte Young was a watershed case in which this Court held that the
Eleventh Amendment did not bar an action in the federal courts seeking to enjoin
the Attorney General of Minnesota from enforcing a statute claimed to violate the
Fourteenth Amendment of the United States Constitution. This holding has
permitted the Civil War Amendments to the Constitution to serve as a sword,
rather than merely as a shield, for those whom they were designed to protect. But
the relief awarded in Ex parte Young was prospective only; the Attorney General
of Minnesota was enjoined to conform his future conduct of that office to the
requirement of the Fourteenth Amendment. Such relief is analogous to that
awarded by the District Court in the prospective portion of its order under review
in this case.

Edelman v. Jordan 8212 1410, 415 U.S. 651, 660-664, 94 S.Ct. 1347, 39 L.Ed.2d
662 (1974)

While not arguing Ex parte Young per se, as you Honor has clearly ruled on the issue, it
is respectfully submitted that a state is not immune from its obligations to comply with federal
law, especially as it applies to federal rights. The right to marry and its civil effects has
repeatedly been held to be a civil right of an American citizen. The freedom to marry has long
been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by
free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence
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Robicheaux v. Caldwell
Page 9
and survival. Loving v. Commonwealth of Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967) citing Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110 1113, 86
L.Ed. 1655 (1942) and Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888).
Louisiana was formed under the requirement that it be republican, and consistent with the
constitution of the United States . . . [and] contain the fundamental principles of civil and
religious liberty. When, as alleged by the petitioners, the State has violated its condition for
formation under a Congressional Act, the federal courts are the proper court for redress and
injunctive relief. As such, the State of Louisiana is not entitled to sovereign immunity under
the 11
th
Amendment of the United States Constitution when it violates its duties under the states
Enabling Act to provide a Constitution that is consistent with the constitution of the United
States and contains the fundamental principle of civil liberty.
In Loving v. Virginia, Justice Warren specifically set forth:
"This case presents a constitutional question never addressed by this Court:
whether a statutory scheme adopted by the State of Virginia to prevent marriages
between persons solely on the basis of racial classifications violates the Equal
Protection and Due Process Clauses of the Fourteenth Amendment. For reasons
which seem to us to reflect the central meaning of those constitutional commands,
we conclude that these statutes cannot stand consistently with the Fourteenth
Amendment."

Loving v. Commonwealth of Virginia 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010
(1967)
1


And while the Loving case was one in which the petitioner seeking relief was incarcerated for
violating marriage prevention law, such incarceration cannot be the requirement seeking federal

1
To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these
statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment,
is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires
that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the
freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the
State. Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)
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Robicheaux v. Caldwell
Page 10
protection. In the case at bar, every official and court in Louisiana has been charged by the
Louisiana Constitution with ignoring or not recognizing marriages from other states when the
married couple is of the same sex. As such, the parties and those similarly situated literally
cannot make a claim in state court because the state judge in Louisiana District Court, Louisiana
Appellate Court, or the Louisiana Supreme Court is not allowed to find that the parties herein
and those similarly situated are married couples under state law. In In re Angela Marie Costanza
and Chasity Shanelle Brewer, 15th Judicial District Court, Parish of Lafayette, State of
Louisiana, Division C, Civil Action No. 2013-33539 and the case on appeal, No. 13-01049-CA,
that is exactly what happened, the trial court was compelled to dismiss the case on its own
motion for failure to state a claim for which relief can be granted. This will be true for the
appellate court, this will be true for the Louisiana Supreme Court, and the only possible relief is
with the United States Supreme Court if the Court chooses to accept writs. It literally shocks the
consciousness to think that a citizen can be discriminated against by sanction and order of a state
constitution, if the provision is a violation of the United States Constitution, and the citizen can
find no relief because he has not been incarcerated, despite the fact that his marriage is not
recognized and his spouse and children may find no civil effects and relief under the law, when
the state was bound at formation to form and naturally maintain a Constitution that is consistent
with the Constitution of the United States and contain the fundamental principles of civil liberty
by dictate of a Congressional Act.
In the alternative, should the Court still find that sovereign immunity applies, it is
respectfully requested that the plaintiffs be granted fifteen days to name a state official who
enforces the laws at issue such as the Secretary of Revenue, Tim Barfield, who denied the
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Robicheaux v. Caldwell
Page 11
plaintiffs request to file as married and has issued an opinion to that effect a copy of which is
attached hereto as Exhibit A, the content of which is incorporated by referenced as if copied
herein in toto.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 35-1 Filed 12/02/13 Page 11 of 11
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that undersigned counsel for the plaintiffs will submit
for consideration the accompanying Motion to Reconsider under Rules 59 and 60
of the Federal Rules of Civil Procedure before the Honorable Martin L.C.
Feldman, United States District Court Judge, Eastern District of Louisiana, 500
Poydras Street, New Orleans, Louisiana on the 15th day of January 2014 at 10 a.m.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 35-2 Filed 12/02/13 Page 1 of 1



Revenue Information Bulletin
No. 13- 024
September 13, 2013
Individual Income Tax

Impact of the Internal Revenue Service Revenue Ruling 2013-17
The U.S. Department of the Treasury and the Internal Revenue Service (IRS) have ruled that same-sex
couples, legally married in jurisdictions that recognize their marriages, will be treated as married for
federal tax purposes.
La. Const. of 1974, art. XII, Sec. 15, states:
Marriage in the state of Louisiana shall consist only of the union of one man and one
woman. No official or court of the state of Louisiana shall construe this constitution or
any state law to require that marriage or the legal incidents thereof be conferred upon
any member of a union other than the union of one man and one woman. A legal status
identical or substantially similar to that of marriage for unmarried individuals shall not
be valid or recognized. No official or court of the state of Louisiana shall recognize any
marriage contracted in any other jurisdiction which is not the union of one man and one
woman.
By its very definition, a same-sex marriage is in direct contravention of La. Const. of 1974, art. XII, Sec. 15,
because it is not a union of one man and one woman. No official or court of the state of Louisiana shall
recognize any marriage contracted in any other jurisdiction which is not the union of one man and one
woman. Louisianas Secretary of Revenue is bound to support and uphold the Constitution and laws of
the state of Louisiana, and any recognition of a same-sex filing status in Louisiana as promulgated in IRS
Revenue Ruling 2013-17 would be a clear violation of Louisianas Constitution.
In compliance with the Louisiana Constitution, the Louisiana Department of Revenue shall not recognize
same-sex marriages when determining filing status. If a taxpayers federal filing status of married filing
jointly, married filing separately or qualifying widow is pursuant to IRS Revenue Ruling 2013-17, the
taxpayer must file a separate Louisiana return as single, head of household or qualifying widow, as
applicable. The taxpayer(s) who filed a federal return pursuant to IRS Revenue Ruling 2013-17 may not
file a Louisiana state income tax return as married filing jointly, married filing separately or qualifying
widow. The taxpayer must provide the same federal income tax information on the Louisiana State
Return that would have been provided prior to the issuance of Internal Revenue Service Revenue Ruling
2013-17.

Tim Barfield
Secretary
Case 2:13-cv-05090-MLCF-ALC Document 35-3 Filed 12/02/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD DEFENDANT

NOW INTO COURT, through undersigned counsel, come JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD AND COURTNEY
BLANCHARD and move this Honorable Court for leave to amend the complaint pursuant to
Rule 15(a) of the Federal Rules of Civil Procedure to add Secretary Tim Barfield as a Defendant.
More particularly, Secretary Barfield is the Secretary for the Louisiana Department of Revenue,
who issued Revenue Informational Bulletin No. 13-024 on the impact of Internal Revenue
Service Revenue Ruling 2013-17, stating that the taxpayer(s) who filed a federal return pursuant
to IRS Revenue Ruling 2013-17 may not file a Louisiana state income tax return as married
filing jointly, married filing separately or qualifying widow, specifically referencing La. Const.
of 1974, art. XII, Sec. 15. Rule 15(a) provides that leave to amend should be freely given when
justice so requires. Jessica Thornhill, Esq., with the Louisiana Attorney Generals Office, who
is listed as counsel on the Attorney Generals Motion to Dismiss, was contacted by undersigned
counsel by telephone and by electronic mail and no reply was given as to whether the Attorney
General objects to the motion to amend. For the reasons set forth in greater detail in the attached
Case 2:13-cv-05090-MLCF-ALC Document 36 Filed 12/02/13 Page 1 of 2


Robicheaux v. Caldwell
Page 2
supporting memorandum, it is respectfully submitted that adding this party as defendant is in the
best interest of justice and judicial economy.
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 36 Filed 12/02/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


THIRD AMENDED COMPLAINT
FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come
JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of
Orleans Parish, residing in the United States District Court, Eastern District of Louisianas
district,
DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,
residing in the United States District Court, Eastern District of Louisianas district,
COURTNEY BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district, and
NADINE BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
and respectfully represent:

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 2
THE PARTIES
1.
Made defendants herein are:
James D. Caldwell in his official capacity as Attorney General for the State of Louisiana,
thereby meeting notice requirements under Federal Rule 5.1 for this constitutionality challenge;
and
Tim Barfield in his official capacity as Secretary, Louisiana Department of Revenue,
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after
having been in a committed relationship together since 2005 commingling funds, living together
and holding themselves out as monogamous partners that are living together as one union.
3.
The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally
married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013
after having been in a committed relationship with a child, C.B., commingling funds, living
together and holding themselves out as monogamous partners that are living together as one
union.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 3

JURISDICTION AND VENUE
4.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, the United States Constitution,
including without limitation the Fourteenth Amendment, and the Enabling Act of the State of
Louisiana, Chapter 21, 22 Stat. 641.
5.

Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b)(2) because the Defendants perform their official duties in this district,
as well as throughout the State of Louisiana, and this is the judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated.
FACTUAL BACKGROUND
6.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 4
The State Laws at Issue
7.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Article XII, Section 15. Marriage in the state of Louisiana shall consist only of the
union of one man and one woman. No official or court of the state of Louisiana
shall construe this constitution or any state law to require that marriage or the
legal incidents thereof be conferred upon any member of a union other than the
union of one man and one woman. A legal status identical or substantially similar
to that of marriage for unmarried individuals shall not be valid or recognized. No
official or court of the state of Louisiana shall recognize any marriage contracted
in any other jurisdiction which is not the union of one man and one woman.

8.

Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

9.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 5
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
10.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the
characteristics relevant to marriage.

11.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness.
12.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
13.
The Plaintiffs and other same-sex couples in Louisiana, if their marriages in other states
in which marriage is legal were recognized, would benefit no less than opposite-sex couples
from the many legal protections and the social recognition afforded to married couples.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 6
14.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
15.
The exclusion from marriage undermines the Plaintiffs abilities to achieve the life goals
and dreams with their spouses; threatens their mutual economic stability; and denies them "a
dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18
(U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

16.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 7
17.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
18.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access
such federal protections as long as Louisiana refuses to recognize their existing marriage.
19.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
20.
Although the Plaintiffs are in long-term committed relationships, they and other same-sex
couples are denied the stabilizing effects of marriage, which helps keep couples together during
times of crisis or conflict.
21.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 8
Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
22.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.

23.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
24.
The plaintiffs recognize that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

25.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 9
any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
26.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

27.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 10
nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."

28.

Congress passed the Louisiana Enabling Act, Ch. 21, 22 Stat. 641 on February 20, 1811,
which stated in pertinent part that Congress authorized:
the inhabitants of all that part of the territory or country ceded under the name of
Louisiana . . . to form for themselves a constitution and state government, and to
assume such name as they may deem proper, under the provisions and upon the
conditions hereinafter mentioned . . . [p]rovided, [t]he constitution to be formed,
in virtue of the authority herein given, shall be republican, and consistent with the
constitution of the United States ; that it shall contain the fundamental principles
of civil and religious liberty ; that it shall secure to the citizen the trial by jury in
all criminal cases, and the privilege of the writ of habeas corpus, conformable to
the provisions of the constitution of the United States ; and that after the
admission of the said territory of Orleans as a state into the Union, the laws which
such state may pass shall be promulgated and its records of every description shall
be preserved, and its judicial and legislative written proceedings conducted in the
language in which the laws and the judicial and legislative written proceedings of
the United States are now published and conducted.

22 Stat. 641, Ch. 21, Article 3.



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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 11
CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

29.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
30.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
31.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
32.
Louisiana law denies the Plaintiffs and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 12
33.
The State can demonstrate no important interest to justify denying the Plaintiffs this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
34.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
35.
The Defendants, acting under color of state law, are depriving Plaintiffs of rights secured
by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

36.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
37.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 13
38.
By denying the Plaintiffs and other lesbian and gay couples the ability have their out-of-
state marriages recognized, the State, through Defendants, disadvantages lesbian and gay people
on the basis of their sexual orientation. It denies them significant legal protections. And it
"degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples
interact, including their own children," that their relationship is "less worthy" than the
relationships of others. Windsor, Slip Op., at 25.
39.

Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
40.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
41.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
42.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
43.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 14
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
44.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
45.
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 15
46.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
47.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

48.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
49.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
50.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Article XII, Section 15 of the
Louisiana Constitution.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 16
51.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
52.
The marriages of Plaintiffs, for example, are denied recognition solely because they are
both men and both women, respectively.
53.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
54.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
55.
The Defendants can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
56.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 17
57.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

58.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
59.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

60.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 18
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

61.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Article XII, Section 15 of the
Louisiana Constitution.
62.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
63.
Plaintiffs herein have been denied requests to file as married couples filing jointly
pursuant to Louisiana Department of Revenue policy as stated in Internal Revenue Service
Revenue Ruling 2013-17, as shown in Revenue Information Bulletin No. 13- 024, dated
September 13, 2013 for Individual Income Tax, attached hereto as Exhibit A.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution;
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 19
2. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution;
3. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of
the United States Constitution.
4. Enter a permanent injunction enjoining Defendants from denying the Plaintiffs and all
other same-sex couples the benefits of marriage and to recognize marriages validly
entered into by the Plaintiff and his Husband and other same-sex couples outside of the
State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs, Jon Robicheaux,
Derek Penton, Courtney Blanchard and
Nadine Blanchard





Case 2:13-cv-05090-MLCF-ALC Document 36-1 Filed 12/02/13 Page 19 of 19
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE THIRD AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Third Amended Complaint for Declaratory and Injunctive
Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of December,
2013.

_______________________________
JUDGE


UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that undersigned counsel for the plaintiffs will submit
for consideration the accompanying Motion to Amend of the Federal Rules of
Civil Procedure before the Honorable Martin L.C. Feldman, United States District
Court Judge, Eastern District of Louisiana, 500 Poydras Street, New Orleans,
Louisiana on the 15th day of January 2014 at 10 a.m.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 36-3 Filed 12/02/13 Page 1 of 1




UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD DEFENDANT

NOW INTO COURT, through undersigned counsel, come JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD AND COURTNEY
BLANCHARD and move this Honorable Court for leave to amend the complaint pursuant to
Rule 15(a) of the Federal Rules of Civil Procedure to add Secretary Tim Barfield as a Defendant.
More particularly, Secretary Barfield is the Secretary for the Louisiana Department of Revenue,
who issued Revenue Informational Bulletin No. 13-024 on the impact of Internal Revenue
Service Revenue Ruling 2013-17, stating that the taxpayer(s) who filed a federal return pursuant
to IRS Revenue Ruling 2013-17 may not file a Louisiana state income tax return as married
filing jointly, married filing separately or qualifying widow, specifically referencing La. Const.
of 1974, art. XII, Sec. 15. Rule 15(a) provides that leave to amend should be freely given when
justice so requires. Jessica Thornhill, Esq., with the Louisiana Attorney Generals Office, who
is listed as counsel on the Attorney Generals Motion to Dismiss, was contacted by undersigned
counsel by telephone and by electronic mail and no reply was given as to whether the Attorney
General objects to the motion to amend. For the reasons set forth in greater detail in the attached
Case 2:13-cv-05090-MLCF-ALC Document 37 Filed 12/03/13 Page 1 of 2


Robicheaux v. Caldwell
Page 2
supporting memorandum, it is respectfully submitted that adding this party as defendant is in the
best interest of justice and judicial economy.
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 37 Filed 12/03/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN SUPPORT OF
MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD DEFENDANT

MAY IT PLEASE THE COURT.
This matter comes on for cause on the Motion for Leave to Amend Complaint to Add
Defendant filed by the plaintiffs, Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard and
Courtney Blanchard, requesting this Honorable Court for leave to amend the complaint pursuant
to Rule 15(a) of the Federal Rules of Civil Procedure to add Secretary Tim Barfield of the
Louisiana Department of Revenue and Secretary Kathy Kliebert of the Louisiana Department of
Health and Hospitals as Defendants.
As your Honor is well-aware, last Wednesday, November 26, 2013, your Honor granted
the Motion to Dismiss filed by the Louisiana Attorney General under Rule 12(b)(1) claiming
Sovereign Immunity under the 11
th
Amendment to the United States Constitution. In part, your
Honor held that the plaintiffs did not meet the requirements to claim an Ex parte Young
exception to the general rule that a private citizen may not file suit against a state in federal court
unless the state submits to the jurisdiction of the federal court. More particularly, it is the
plaintiffs understanding that your Honor held that the plaintiffs failed to show that the Louisiana
Case 2:13-cv-05090-MLCF-ALC Document 37-1 Filed 12/03/13 Page 1 of 5


Robicheaux v. Caldwell
Page 2
Attorney General in any way enforced the laws for which they seek an injunction. As such, the
plaintiffs pray to amend their complaint to add two such enforcers the Secretary of the
Department of Revenue and the Secretary of the Department of Health and Hospitals.
Secretary Tim Barfield is the Secretary for the Louisiana Department of Revenue, who
issued Revenue Informational Bulletin No. 13-024 on the impact of Internal Revenue Service
Revenue Ruling 2013-17, stating that the taxpayer(s) who filed a federal return pursuant to IRS
Revenue Ruling 2013-17 may not file a Louisiana state income tax return as married filing
jointly, married filing separately or qualifying widow, specifically referencing La. Const. of
1974, art. XII, Sec. 15. The plaintiffs requested the procedure for filing as married couples and
their request was denied with the Department of Revenue worker stating that the above
referenced bulletin shows why they are not allowed to file as married couples respectively.
Secretary Kathy Kliebert is the Secretary for the Department of Health and Hospitals,
who is responsible for vital records for the State of Louisiana including Orleans Parish Marriage
Records and whose general counsel sought an opinion regarding issuing birth certificates to
adoptive parents who are same-sex married couples. Plaintiffs Courtney and Nadine Blanchard
have sought a vehicle to allow them both to be their sons parents, jointly. Courtney Blanchard
in the biological mother and Nadine Blanchard carried their son and is his birth mother. Nadine
Blanchard is the natural tutor but they want to adopt the child jointly. They also want to have
both mothers on the birth certificate, which is prohibited by the Department of Health and
Hospitals Vital Records Division.
Rule 15 of the Federal Rules of Civil Procedure states as follows:

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Robicheaux v. Caldwell
Page 3

Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.

(b) Amendments During and After Trial.

(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court may permit the pleadings to be
amended. The court should freely permit an amendment when doing so will aid in
presenting the merits and the objecting party fails to satisfy the court that the
evidence would prejudice that party's action or defense on the merits. The court
may grant a continuance to enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried
by the parties express or implied consent, it must be treated in all respects as if
raised in the pleadings. A party may moveat any time, even after judgmentto
amend the pleadings to conform them to the evidence and to raise an unpleaded
issue. But failure to amend does not affect the result of the trial of that issue.

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back
to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;
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Robicheaux v. Caldwell
Page 4

(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set outor attempted to be set outin the original
pleading; or

(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in
by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on
the merits; and

(ii) knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer
or agency is added as a defendant by amendment, the notice requirements of Rule
15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was
delivered or mailed to the United States attorney or the United States attorney's
designee, to the Attorney General of the United States, or to the officer or agency.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on
just terms, permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented. The court may permit supplementation even though the original
pleading is defective in stating a claim or defense. The court may order that the
opposing party plead to the supplemental pleading within a specified time.

In particular, Rule 15(a) provides that leave to amend should be freely given when
justice so requires.
Jessica Thornhill, Esq., with the Louisiana Attorney Generals Office, who is listed as
counsel on the Attorney Generals Motion to Dismiss, was contacted by undersigned counsel by
telephone and by electronic mail and no reply was given as to whether the Attorney General
objects to the motion to amend. For the reasons set forth in greater detail in the attached
Case 2:13-cv-05090-MLCF-ALC Document 37-1 Filed 12/03/13 Page 4 of 5


Robicheaux v. Caldwell
Page 5
supporting memorandum, it is respectfully submitted that adding this party as defendant is in the
best interest of justice and judicial economy.
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the Third Amended Complaint to cure the defect that was the basis of the dismissal on
November 26, 2013.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 3, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 37-1 Filed 12/03/13 Page 5 of 5
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


THIRD AMENDED COMPLAINT
FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come
JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of
Orleans Parish, residing in the United States District Court, Eastern District of Louisianas
district,
DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,
residing in the United States District Court, Eastern District of Louisianas district,
COURTNEY BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district, and
NADINE BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
and respectfully represent:

Case 2:13-cv-05090-MLCF-ALC Document 37-2 Filed 12/03/13 Page 1 of 19


Third Amended Complaint - Robicheaux et al v. Caldwell
Page 2
THE PARTIES
1.
Made defendants herein are:
James D. Caldwell in his official capacity as Attorney General for the State of Louisiana,
thereby meeting notice requirements under Federal Rule 5.1 for this constitutionality challenge;
and
Tim Barfield in his official capacity as Secretary, Louisiana Department of Revenue,
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after
having been in a committed relationship together since 2005 commingling funds, living together
and holding themselves out as monogamous partners that are living together as one union.
3.
The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally
married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013
after having been in a committed relationship with a child, C.B., commingling funds, living
together and holding themselves out as monogamous partners that are living together as one
union.

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Third Amended Complaint - Robicheaux et al v. Caldwell
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JURISDICTION AND VENUE
4.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, the United States Constitution,
including without limitation the Fourteenth Amendment, and the Enabling Act of the State of
Louisiana, Chapter 21, 22 Stat. 641.
5.

Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b)(2) because the Defendants perform their official duties in this district,
as well as throughout the State of Louisiana, and this is the judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated.
FACTUAL BACKGROUND
6.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple,
thus depriving a legally married same-sex couple from securing any benefits of marriage within
the State of Louisiana and stripping them of any rights to which a same-sex couple was vested
prior to residing in the State of Louisiana.

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Third Amended Complaint - Robicheaux et al v. Caldwell
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The State Laws at Issue
7.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Article XII, Section 15. Marriage in the state of Louisiana shall consist only of the
union of one man and one woman. No official or court of the state of Louisiana
shall construe this constitution or any state law to require that marriage or the
legal incidents thereof be conferred upon any member of a union other than the
union of one man and one woman. A legal status identical or substantially similar
to that of marriage for unmarried individuals shall not be valid or recognized. No
official or court of the state of Louisiana shall recognize any marriage contracted
in any other jurisdiction which is not the union of one man and one woman.

8.

Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

9.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
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Third Amended Complaint - Robicheaux et al v. Caldwell
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expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
10.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the
characteristics relevant to marriage.

11.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness.
12.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
13.
The Plaintiffs and other same-sex couples in Louisiana, if their marriages in other states
in which marriage is legal were recognized, would benefit no less than opposite-sex couples
from the many legal protections and the social recognition afforded to married couples.

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Third Amended Complaint - Robicheaux et al v. Caldwell
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14.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.
15.
The exclusion from marriage undermines the Plaintiffs abilities to achieve the life goals
and dreams with their spouses; threatens their mutual economic stability; and denies them "a
dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18
(U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

16.
By refusing to recognize same-sex marriage marriages from others states, the States laws
deprive same-sex couples married in other states of numerous legal protections that are available
to opposite-sex couples in Louisiana by virtue of their marriages. By way of example only: The
State provides that a living spouse is entitled to benefits upon the death of his or her spouse
should the decedent die intestate. Louisiana Civil Code Art. 890. There is no protection for the
widow or widower for same-sex spouses married in another State in which they were legally and
properly married.

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Third Amended Complaint - Robicheaux et al v. Caldwell
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17.
Same-sex married couples are excluded from this and many other legal protections
provided for married couples under Louisiana law.
18.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access
such federal protections as long as Louisiana refuses to recognize their existing marriage.
19.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
20.
Although the Plaintiffs are in long-term committed relationships, they and other same-sex
couples are denied the stabilizing effects of marriage, which helps keep couples together during
times of crisis or conflict.
21.
Excluding same-sex married couples from recognizing their marriages also harms
couples and their children by denying them the social recognition that comes with marriage.
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Marriage has profound social significance both for the couple that gets married and the family,
friends and community that surround them. The terms "married" and "spouse" have universally
understood meanings that command respect for a couple's relationship and the commitment they
have made.
22.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.

23.
The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
24.
The plaintiffs recognize that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

25.
As the evidence will show, the prohibition against recognition of marriage for same-sex
couples in Louisiana is not closely tailored to serve an important government interest or
substantially related to an exceedingly persuasive justification. In fact, as the evidence also will
show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to
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Third Amended Complaint - Robicheaux et al v. Caldwell
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any legitimate justifications that were offered in support of it when the Constitution was
amended in 2004 or to any legitimate interest of the State that Defendants might now offer as a
basis for denying same-sex married couples recognition in Louisiana.
26.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

27.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
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Third Amended Complaint - Robicheaux et al v. Caldwell
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nation, on those subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."

28.

Congress passed the Louisiana Enabling Act, Ch. 21, 22 Stat. 641 on February 20, 1811,
which stated in pertinent part that Congress authorized:
the inhabitants of all that part of the territory or country ceded under the name of
Louisiana . . . to form for themselves a constitution and state government, and to
assume such name as they may deem proper, under the provisions and upon the
conditions hereinafter mentioned . . . [p]rovided, [t]he constitution to be formed,
in virtue of the authority herein given, shall be republican, and consistent with the
constitution of the United States ; that it shall contain the fundamental principles
of civil and religious liberty ; that it shall secure to the citizen the trial by jury in
all criminal cases, and the privilege of the writ of habeas corpus, conformable to
the provisions of the constitution of the United States ; and that after the
admission of the said territory of Orleans as a state into the Union, the laws which
such state may pass shall be promulgated and its records of every description shall
be preserved, and its judicial and legislative written proceedings conducted in the
language in which the laws and the judicial and legislative written proceedings of
the United States are now published and conducted.

22 Stat. 641, Ch. 21, Article 3.



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Third Amended Complaint - Robicheaux et al v. Caldwell
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CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

29.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
30.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
31.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
32.
Louisiana law denies the Plaintiffs and other individuals in same-sex marriages this
fundamental right by denying them access to the state-recognized institution of marriage and
refusing to recognize the marriages they entered into in other states and countries.

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33.
The State can demonstrate no important interest to justify denying the Plaintiffs this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
34.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions and prohibition for the courts and officials of the State from doing so violates the
Due Process Clause.
35.
The Defendants, acting under color of state law, are depriving Plaintiffs of rights secured
by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

36.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
37.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
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38.
By denying the Plaintiffs and other lesbian and gay couples the ability have their out-of-
state marriages recognized, the State, through Defendants, disadvantages lesbian and gay people
on the basis of their sexual orientation. It denies them significant legal protections. And it
"degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples
interact, including their own children," that their relationship is "less worthy" than the
relationships of others. Windsor, Slip Op., at 25.
39.

Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
40.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
41.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.
42.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
43.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
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Third Amended Complaint - Robicheaux et al v. Caldwell
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of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
44.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.
45.
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.

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Third Amended Complaint - Robicheaux et al v. Caldwell
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46.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
47.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

48.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
49.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
50.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Article XII, Section 15 of the
Louisiana Constitution.

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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 16
51.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
52.
The marriages of Plaintiffs, for example, are denied recognition solely because they are
both men and both women, respectively.
53.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
54.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
55.
The Defendants can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.
56.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.

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Third Amended Complaint - Robicheaux et al v. Caldwell
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57.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

58.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
59.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

60.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 18
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

61.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Article XII, Section 15 of the
Louisiana Constitution.
62.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
63.
Plaintiffs herein have been denied requests to file as married couples filing jointly
pursuant to Louisiana Department of Revenue policy as stated in Internal Revenue Service
Revenue Ruling 2013-17, as shown in Revenue Information Bulletin No. 13- 024, dated
September 13, 2013 for Individual Income Tax, attached hereto as Exhibit A.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution;
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Third Amended Complaint - Robicheaux et al v. Caldwell
Page 19
2. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution;
3. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of
the United States Constitution.
4. Enter a permanent injunction enjoining Defendants from denying the Plaintiffs and all
other same-sex couples the benefits of marriage and to recognize marriages validly
entered into by the Plaintiff and his Husband and other same-sex couples outside of the
State of Louisiana;
5. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. 1988; and
6. Enter all further relief to which Plaintiffs may be justly entitled.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs, Jon Robicheaux,
Derek Penton, Courtney Blanchard and
Nadine Blanchard





Case 2:13-cv-05090-MLCF-ALC Document 37-2 Filed 12/03/13 Page 19 of 19
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO FILE THIRD AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioner, Jonathan P. Robicheaux be and
is hereby granted leave to file the Third Amended Complaint for Declaratory and Injunctive
Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of December,
2013.

_______________________________
JUDGE


UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that undersigned counsel for the plaintiffs will submit
for consideration the accompanying Motion to Amend of the Federal Rules of
Civil Procedure before the Honorable Martin L.C. Feldman, United States District
Court Judge, Eastern District of Louisiana, 500 Poydras Street, New Orleans,
Louisiana on the 15th day of January 2014 at 10 a.m.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 2, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 37-4 Filed 12/03/13 Page 1 of 1




UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD DEFENDANT

MAY IT PLEASE THE COURT.
This matter comes on for cause on the Motion for Leave to Amend Complaint to Add
Defendant filed by the plaintiffs, Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard and
Courtney Blanchard, requesting this Honorable Court for leave to amend the complaint pursuant
to Rule 15(a) of the Federal Rules of Civil Procedure to add Secretary Tim Barfield of the
Louisiana Department of Revenue and Secretary Kathy Kliebert of the Louisiana Department of
Health and Hospitals as Defendants.
This supplemental memorandum is being filed for the purpose of advising the Court of
the conversation that counsel for the plaintiffs and counsel for the Louisiana Attorney General
had after filing the memorandum in support a short while ago. More particularly, we were
advised that the Louisiana Attorney General is of the position that he is not a proper party to the
action and has been dismissed as a defendant. Accordingly, he neither objects nor agrees to the
Motion to Amend but it is by virtue of his position that he is not a party and that he would not
be a party to contradict in any manner.
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Robicheaux v. Caldwell
Page 2
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 3, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 38 Filed 12/03/13 Page 2 of 2
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX CI VI L ACTI ON
ET AL.
VERSUS NUMBER: 13- 5090
J AMES D. CALDWELL SECTI ON: F( 5)
ORDER SETTING ORAL ARGUMENT
VIA TELEPHONE
Or al ar gument on pl ai nt i f f s' Mot i on f or Leave t o Amend
Compl ai nt t o Add Def endant ( r ec. doc. 37) wi l l be conduct ed
t el ephoni cal l y on J anuar y 15, 2014 at 11: 00 a. m. or as soon
t her eaf t er on t hat dat e and t i me as t he Cour t s docket per mi t s.
The par t i es ar e t hus i nst r uct ed t o be st andi ng by t hei r t el ephones
f r om11: 00 a. m. on and t hey wi l l be cont act ed by t he Cour t as i t
makes i t s way t hr ough i t s mot i on docket .
New Or l eans, Loui si ana, t hi s ___ day of December , 2013.

ALMA L. CHASEZ
UNI TED STATES MAGI STRATE J UDGE
5th
Case 2:13-cv-05090-MLCF-ALC Document 40 Filed 12/05/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION TO EXPEDITE HEARING

NOW INTO COURT, through undersigned counsel, come JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD AND COURTNEY
BLANCHARD and move this Honorable Court to expedite the hearing before Magistrate Judge
Alma L. Chasez on their Third Motion to Amend their complaint to add the Secretaries of
Revenue and Health and Hospitals to cure the deficiencies in their complaint with the Attorney
General as the only defendant under the concept of sovereign immunity. The movants filed both
a motion to reconsider and a motion to amend at the same time after Judge Martin Feldman
dismissed the Attorney General and filed notices of submission to Judge Feldman on January
15
th
at 10:00 a.m. The Clerk of Court under the local rules reset the motion to amend before
Magistrate Judge Chasez at 11:00 a.m. on the same day. The movants desire that the motion to
amend be heard on an expedited basis. The Louisiana Attorney General has been contacted and
neither agrees nor objects to the motion, maintaining the position that he has been dismissed and
is not a party to this lawsuit.
Case 2:13-cv-05090-MLCF-ALC Document 41 Filed 12/16/13 Page 1 of 2


Robicheaux v. Caldwell
Page 2
WHEREFORE, petitioners pray that the hearing on the Motion to Amend before
Magistrate Judge Alma Chasez be heard on an expedited basis.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 16, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 41 Filed 12/16/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO EXPEDITE HEARING

Considering the foregoing motion and finding that the Movants are entitled to the relief
sought and finding that the relief sought is authorized under the law and in the best interest of
justice,
IT IS HEREBY ORDERED that the hearing on the Third Motion to Amend the
complaint is upset and rescheduled for _________________________________.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of December,
2013.

_______________________________
JUDGE


UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


ORDER TO EXPEDITE HEARING

Considering the foregoing motion and finding that the Movants are entitled to the relief
sought and finding that the relief sought is authorized under the law and in the best interest of
justice,
IT IS HEREBY ORDERED that the hearing on the Third Motion to Amend the
complaint is upset and rescheduled for _________________________________.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of December,
2013.

_______________________________
JUDGE


January
at 11:00 a.m. via telephone.
United States Magistrate Judge
17th
Case 2:13-cv-05090-MLCF-ALC Document 43 Filed 12/17/13 Page 1 of 1
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX, ET AL. CI VI L ACTI ON
v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON " F"
LOUI SI ANA ATTORNEY GENERAL
ORDER
I T I S HEREBY ORDERED t hat pl ai nt i f f s' mot i on f or l eave t o f i l e
t hi r d amended compl ai nt i s r eset t o J anuar y 15, 2014, t o be deci ded
by t he Cour t on t he paper s t oget her wi t h pl ai nt i f f s' mot i on f or
r econsi der at i on.
New Or l eans, Loui si ana, December 30, 2013
______________________________
MARTI N L. C. FELDMAN
UNI TED STATES DI STRI CT J UDGE
Case 2:13-cv-05090-MLCF-ALC Document 44 Filed 12/30/13 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


PLAINTIFFS MOTION TO FILE SUPPLEMENTAL MEMORANDUM
IN SUPPORT OF MOTION FOR RECONSIDERATION

NOW INTO COURT, through undersigned counsel, come the Plaintiffs, Jon Robicheaux,
Derek Penton, Nadine Blanchard and Courtney Blanchard, who request leave of court to file the
attached Supplemental Memorandum in Support of their Motion for Reconsideration.
1.
On November 26, 2013, this Honorable Court granted Defendant, James D. Caldwells
Motion to Dismiss invoking sovereign immunity.
2.
On December 2, 2013, your Movants filed a Motion for Reconsideration that was set for
hearing on the papers on January15, 2013.
3.
The attached supplemental memorandum supplements the argument in the memorandum
in support filed on December 2, 2013 by specifically arguing that states are not entitled to
sovereign immunity according to the United States Constitution notwithstanding jurisprudence.

Case 2:13-cv-05090-MLCF-ALC Document 45 Filed 12/31/13 Page 1 of 2


Motion for Leave to File Supplemental Memorandum
Robicheaux v. Caldwell et al
Page 2
4.
It is within the Courts discretion to grant motions to supplement when it is in the best
interest of justice and does not prejudice an opposing party in the lawsuit.
5.
The Plaintiffs, movants herein, respectfully suggest that this supplemental memorandum
will assist your Honor in deciding and ruling on the motion.
WHEREFORE, your plaintiffs pray for leave of Court to file the attached Supplemental
Memorandum in Support of their Motion for Reconsideration.
Respectfully submitted:


SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs


CERTIFICATE OF SERVICE

I hereby certify that I have served upon Defense counsel of record a copy of the
foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill
at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on December 31, 2013, I
electronically filed the foregoing with the Clerk of Court by using the CM/EMF system, which
will send a notice of filing to all counsel of record.



_________________________
Scott J. Spivey, Esq.
Case 2:13-cv-05090-MLCF-ALC Document 45 Filed 12/31/13 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


ORDER

IT IS ORDERED that the Motion for Leave to File Supplemental Memorandum in Support
of Plaintiffs Motion for Reconsideration filed by the Plaintiffs, is GRANTED.
New Orleans, Louisiana, this ______ day of December, 2013.

_____________________________________
Judge Martin L.C. Feldman
United States District Court
Eastern District of Louisiana

UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


FIRST SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
MOTION TO RECONSIDER UNDER
RULES 59 AND 60 OF THE FEDERAL RULES OF CIVIL PROCEDURE

MAY IT PLEASE THE COURT.
This matter comes on for cause on your plaintiffs motion to reconsider the Order signed
on November 26, 2013, granting the Louisiana Attorney Generals Motion to Dismiss under
Rule 12(b)(1) under the concept of Sovereign Immunity (Doc. 33). In this regard, your plaintiffs
respectfully submit that regardless of the Ex parte Young exceptions to the concept frequently
referred to as Sovereign Immunity, the plaintiffs have properly named the Louisiana Attorney
General as a defendant in their claim that one provision of the Louisiana Constitution and one
provision of the Louisiana Civil Code is in violation of the United States Constitution.
In the first memorandum, Plaintiffs argue that the State has specifically violated the
enabling and formation Act of Congress in the enactment and judicial operation of the two laws
at issue. In this supplemental memorandum, the plaintiffs urge this Honorable Court to
specifically review the actual language of the United States Constitution and applicable case law
and find that the concept of Sovereign Immunity does not apply in the case sub judice.
Case 2:13-cv-05090-MLCF-ALC Document 45-2 Filed 12/31/13 Page 1 of 12


Robicheaux v. Caldwell
Page 2
In your Honors Order and Reasons, it specifically states: The Eleventh Amendment to
the U.S. Constitution bars suits by private citizens against a state in federal court. K.P. v.
LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)(citing Hutto v. Finney, 437 U.S. 678, 700 (1978)).
This immunity extends to protect state actors who are acting in their official capacities. Id. Case
2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 3 of 7. However, the plaintiffs
would like to begin with the actual language of the Eleventh Amendment to the United States
Constitution.
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. AMEND. XI. Nowhere does the Eleventh Amendment state that the judicial
power of the United State shall not be construed to extend to any suit commenced or prosecuted
against one of the United States by Citizens of its own State.
The Eleventh Amendment, which was the first Constitutional amendment after the
adoption of the Bill of Rights, was adopted following the Supreme Court's ruling in Chisholm v.
Georgia, 2 U.S. 419 (1793). In Chisholm, the Court ruled that federal courts had the authority to
hear cases in law and equity brought by private citizens against states and that states did not
enjoy sovereign immunity from suits made by citizens of other states in federal court. Thus, the
amendment clarified Article III, Section 2 of the Constitution, which gave diversity jurisdiction
to the judiciary to hear cases "between a state and citizens of another state." In Hollingsworth v.
Virginia, 3 U.S. 378 (1798), the Supreme Court held that every pending action brought under
Chisholm had to be dismissed because of the amendment's adoption. The amendment's text does
not mention suits brought against a state by its own citizens. However, in Hans v. Louisiana,
Case 2:13-cv-05090-MLCF-ALC Document 45-2 Filed 12/31/13 Page 2 of 12


Robicheaux v. Caldwell
Page 3
134 U.S. 1 (1890), the Supreme Court ruled that the amendment reflects a broader principle of
sovereign immunity. As Justice Anthony Kennedy, writing for a five Justice majority, stated in
Alden v. Maine, 527 U.S. 706 (1999):
[S]overeign immunity derives not from the Eleventh Amendment but from the
structure of the original Constitution itself....Nor can we conclude that the specific
Article I powers delegated to Congress necessarily include, by virtue of the
Necessary and Proper Clause or otherwise, the incidental authority to subject the
States to private suits as a means of achieving objectives otherwise within the
scope of the enumerated powers.

Alden v. Maine, 527 U.S. 706 (1999).

Writing for a four-Justice dissent in Alden, Justice David Souter said, in pertinent part,
that the States surrendered their sovereign immunity when they ratified the Constitution. The
dissenting justices read the amendment's text as reflecting a narrow form of sovereign immunity
that limited only the diversity jurisdiction of the federal courts. They concluded that the states are
not insulated from suits by individuals by either the Eleventh Amendment in particular or the
Constitution in general. See Alden v. Maine, 527 U.S. 706 (1999) dissent.
This is where your plaintiffs would like to draw the Courts attention. Your plaintiffs
respectfully suggest that the dissenting Justices were and are correct. Despite the legal
application of the concept of Sovereign Immunity throughout jurisprudence and indeed the very
beginning of Constitutional Law study at any institution of higher academic learning, there is
nothing in the United States Constitution that allows the State of Louisiana and the Louisiana
Attorney General in the case at bar to claim Sovereign Immunity. Indeed, the State has a right to
defend itself in claims that its laws are unconstitutional and in the absence of a States
willingness to do so, other interested parties have been given standing to do so. In this regard we
Case 2:13-cv-05090-MLCF-ALC Document 45-2 Filed 12/31/13 Page 3 of 12


Robicheaux v. Caldwell
Page 4
look to the Ninth Circuit Court of Appeals decision in Perry v. Brown, 671 F.3d 1052, 1069-73,
(9th Cir., 2012):

III

We begin, as we must, with the issue that has prolonged our consideration of
this case: whether we have jurisdiction over an appeal brought by the defendant-
intervenor Proponents, rather than the defendant state and local officers who were
directly enjoined by the district court order. 8 In view of Proponents' authority
under California law, we conclude that they do have standing to appeal.

For purposes of Article III standing, we start with the premise that a State
has standing to defend the constitutionality of its [laws]. Diamond v. Charles,
476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). When a state law is ruled
unconstitutional, either the state or a state officer charged with the law's
enforcement may appeal that determination. Typically, the named defendant in an
action challenging the constitutionality of a state law is a state officer, because
sovereign immunity protects the state from being sued directly. See Ex parte
Young, 209 U.S. 123, 15758, 28 S.Ct. 441, 52 L.Ed. 714 (1908); L.A. County
Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992). In such cases, if a court
invalidates the state law and enjoins its enforcement, there is no question that the
state officer is entitled to appeal that determination. See, e.g., Ysursa v. Pocatello
Educ. Ass'n, 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (Idaho
Secretary of State and Attorney General appealed decision striking down an Idaho
law on First Amendment grounds); Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct.
2597, 147 L.Ed.2d 743 (2000) (Nebraska Attorney General appealed decision
holding unconstitutional a Nebraska abortion law). Moreover, there is no reason
that a state itself may not also choose to intervene as a defendant, and indeed a
state must be permitted to intervene if a state officer is not already party to an
action in which the constitutionality of a state law is challenged. See 28 U.S.C.
2403(b); Fed.R.Civ.P. 5.1; cf. Fed. R.App. P. 44(b). When a state does elect to
become a defendant itself, the state may appeal an adverse decision about the
constitutionality of one of its laws, just as a state officer may. See, e.g., Caruso v.
Yamhill County ex rel. County Comm'r, 422 F.3d 848, 85253 & n. 2 (9th
Cir.2005) (sole appellant was the State of Oregon, which had intervened as a
defendant in the district court). In other words, in a suit for an injunction against
enforcement of an allegedly unconstitutional state law, it makes no practical
difference whether the formal party before the court is the state itself or a state
officer in his official capacity. Cf. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 114 n. 25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (discussing the
fiction of Ex parte Young ); see also Idaho v. Coeur d'Alene Tribe of Idaho, 521
U.S. 261, 26970, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (same).
Case 2:13-cv-05090-MLCF-ALC Document 45-2 Filed 12/31/13 Page 4 of 12


Robicheaux v. Caldwell
Page 5

Whether the defendant is the state or a state officer, the decision to assert the
state's own interest in the constitutionality of its laws is most commonly made by
the state's executive branchthe part of state government that is usually charged
with enforcing and defending state law. See, e.g., Ysursa, 555 U.S. at 354, 129
S.Ct. 1093 (Idaho state officers represented by state Attorney General); Caruso,
422 F.3d at 851 (State of Oregon represented by Oregon Department of Justice).
Some sovereigns vest the authority to assert their interest in litigation exclusively
in certain executive officers. See, e.g., 28 U.S.C. 51619; 28 C.F.R. 0.20.

The states need not follow that approach, however. It is their prerogative, as
independent sovereigns, to decide for themselves who may assert their interests
and under what circumstances, and to bestow that authority accordingly. In
Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), for example,
the Supreme Court held that the State of New Jersey was properly represented in
litigation by the Speaker of the General Assembly and the President of the Senate,
appearing on behalf of the Legislature, because the New Jersey Legislature had
authority under state law to represent the State's interests. Id. at 82, 108 S.Ct. 388
(citing In re Forsythe, 91 N.J. 141, 450 A.2d 499, 500 (1982)).9 Principles of
federalism require that federal courts respect such decisions by the states as to
who may speak for them: there are limits on the Federal Government's power to
affect the internal operations of a State. Va. Office for Protection & Advocacy v.
Stewart, U.S. , 131 S.Ct. 1632, 1641, 179 L.Ed.2d 675 (2011). It is not
for a federal court to tell a state who may appear on its behalf any more than it is
for Congress to direct state law-enforcement officers to administer a federal
regulatory scheme, see Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138
L.Ed.2d 914 (1997), to command a state to take ownership of waste generated
within its borders, see New York v. United States, 505 U.S. 144, 112 S.Ct. 2408,
120 L.Ed.2d 120 (1992), or to dictate where a state shall locate its capital, see
Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911). Who may speak
for the state is, necessarily, a question of state law. All a federal court need
determine is that the state has suffered a harm sufficient to confer standing and
that the party seeking to invoke the jurisdiction of the court is authorized by the
state to represent its interest in remedying that harm.

. . . .

It matters not whether federal courts think it wise or desirable for California
to afford proponents this authority to speak for the State, just as it makes no
difference whether federal courts think it a good idea that California allows its
constitution to be amended by a majority vote through a ballot measure in the first
place. Cf. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56
L.Ed. 377 (1912) (holding nonjusticiable a Guaranty Clause challenge to Oregon's
initiative system). The People of California are largely free to structure their
Case 2:13-cv-05090-MLCF-ALC Document 45-2 Filed 12/31/13 Page 5 of 12


Robicheaux v. Caldwell
Page 6
system of governance as they choose, and we respect their choice. All that
matters, for federal standing purposes, is that the People have an interest in the
validity of Proposition 8 and that, under California law, Proponents are authorized
to represent the People's interest. That is the case here.

Perry v. Brown, 12 Cal. Daily Op. Serv. 1550, 671 F.3d 1052, 1069 - 73, 2012
Daily Journal D.A.R. 1705 (9th Cir., 2012)

As the Court is well-aware, the United States Supreme Court reversed finding that the
proponents had no standing.
The only individuals who sought to appeal that order were petitioners, who had
intervened in the District Court. But the District Court had not ordered them to do
or refrain from doing anything. To have standing, a litigant must seek relief for an
injury that affects him in a "personal and individual way." Defenders of Wildlife,
supra, at 560, n. 1. He must possess a "direct stake in the outcome" of the case.
Arizonans for Official English, supra, at 64 (internal quotation marks omitted).
Here, however, petitioners had no "direct stake" in the outcome of their appeal.
Their only interest in having the District Court order reversed was to vindicate the
constitutional validity of a generally applicable California law.

We have repeatedly held that such a "generalized grievance," no matter how
sincere, is insufficient to confer standing. A litigant "raising only a generally
available grievance about government-claiming only harm to his and every
citizen's interest in proper application of the Constitution and laws, and seeking
relief that no more directly and tangibly benefits him than it does the public at
large-does not state an Article III case or controversy." Defenders of Wildlife,
supra, at 573-574; see Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam)
("Our refusal to serve as a forum for generalized grievances has a lengthy
pedigree."); Allen v. Wright, 468 U. S. 737, 754 (1984) ("an asserted right to have
the Government act in accordance with law is not sufficient, standing alone, to
confer jurisdiction on a federal court"); Massachusetts v. Mellon, 262 U. S. 447,
488 (1923) ("The party who invokes the [judicial] power must be able to show . . .
that he has sustained or is immediately in danger of sustaining some direct injury .
. . and not merely that he suffers in some indefinite way in common with people
generally.").

Petitioners argue that the California Constitution and its election laws give
them a " 'unique,' 'special,' and 'distinct' role in the initiative process-one
'involving both authority and responsibilities that differ from other supporters of
the measure.'" Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d,
at 1006, 1017-1018, 1030). True enough-but only when it comes to the process of
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Robicheaux v. Caldwell
Page 7
enacting the law. Upon submitting the proposed initiative to the attorney general,
petitioners became the official "proponents" of Proposition 8. Cal. Elec. Code
Ann. 342 (West 2003). As such, they were responsible for collecting the
signatures required to qualify the measure for the ballot. 9607-9609. After
those signatures were collected, the proponents alone had the right to file the
measure with election officials to put it on the ballot. 9032. Petitioners also
possessed control over the arguments in favor of the initiative that would appear
in California's ballot pamphlets. 9064, 9065, 9067, 9069.

But once Proposition 8 was approved by the voters, the measure became "a
duly enacted constitutional amendment or statute." 52 Cal. 4th, at 1147, 265 P. 3d,
at 1021. Petitioners have no role-special or otherwise-in the enforcement of
Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not "possess any
official authority . . . to directly enforce the initiative measure in question"). They
therefore have no "personal stake" in defending its enforcement that is
distinguishable from the general interest of every citizen of California. Defenders
of Wildlife, supra, at 560-561.

Article III standing "is not to be placed in the hands of 'concerned
bystanders,' who will use it simply as a 'vehicle for the vindication of value
interests.'" Diamond, 476 U. S., at 62. No matter how deeply committed
petitioners may be to upholding Proposition 8 or how "zealous [their] advocacy,"
post, at 4 (KENNEDY, J., dissenting), that is not a "particularized" interest
sufficient to create a case or controversy under Article III. Defenders of Wildlife,
504 U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65
("Nor has this Court ever identified initiative proponents as Article-III-qualified
defenders of the measures they advocated."); Don't Bankrupt Washington
Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077
(1983) (summarily dismissing, for lack of standing, appeal by an initiative
proponent from a decision holding the initiative unconstitutional).
Hollingsworth v. Perry, 570 U.S. ___ (2013), pp. 11-13.
How can it stand to reason that an attorney general or those with a particularized
interest can defend a law and a states attorney general cannot be called as a defendant to
defend a law? And this backward logic is further exacerbated when a person seeks to strike
down laws regarding civil rights and standing such as the right to have his or her marriage
recognized.
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Robicheaux v. Caldwell
Page 8
The Ex parte Young progeny of cases speak to a plaintiffs right to seek an injunction
against an enforcer of the laws. But, what if the enforcer is actually the courts themselves? For
example, the plaintiffs have already drawn your Honors attention to a Louisiana case, In re
Constanza, wherein there was no state actor or enforcer of the law per se. The trial judge was
bound by his position to obey and apply the state constitution that directly stated: No official or
court of the state of Louisiana shall construe this constitution or any state law to require that
marriage or the legal incidents thereof be conferred upon any member of a union other than the
union of one man and one woman.
All judges are absolutely immune from civil litigation absent proof that he was acting
outside of his judicial capacity or that he acted in the complete absence of all jurisdiction.
Mireles v. Waco, 502 U.S. 9, 13, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). So, then, how would a
citizen of a state have any vehicle for redress when a state law infringes on his or her rights as an
American Citizen in violation of the United States Constitution? An obvious example would be
if Louisiana had a law that said that white people and non-white people could not be married and
marriages between white people and non-white people who are legally married in other states
would not be recognized? We all know that Loving v. Virginia has resolved this issue and it was
properly brought in federal court because the state arrested Mr. Loving. But, what if the law did
not require incarceration what if the law did not make it a crime per se? Would that mean that
the state could operationally prevent federal review? The law at hand was properly challenged in
federal court in 2004, at which time the Louisiana Supreme Court upheld the amendment to the
Louisiana Constitution: Forum for Equality PAC v. McKeithen, 893 So.2d 715 (La., 2005). The
Forum for Equality PAC sued the Attorney General and the claim was lost. It is respectfully
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Robicheaux v. Caldwell
Page 9
submitted that there is nothing in the United States Constitution that prevents a citizen from
suing its State or the Attorney General in his official capacity when it has a law that violates the
United States Constitution and the rights given to the people thereunder.
The United States Supreme Court has already ruled that a federal law that discriminated
against same-sex married couples was a violation of the United States Constitution. In Windsor,
the Court considered the constitutionality of Section 3 of DOMA, which defined marriage as the
legal union between one man and one woman as husband and wife for the purposes of federal
law. United States v. Windsor, 133 S. Ct. 2675 (2013); 1 U.S.C. 7 (2012). A majority of the
Court found that this statute was unconstitutional because it violated the Fifth Amendment of the
United States Constitution. Windsor, 133 S. Ct. at 2696. The Court found that DOMA violated
the Fifth Amendment because the statute place[d] same-sex couples in an unstable position of
being in a second-tier marriage, a differentiation that demean[ed] the couple, whose moral and
sexual choices the Constitution protects[.] Id. at 2694. So, the issue was not the enforcement of
the law, per se. The issues were a second class citizen status and the demeaning effect of the
law. Together they make the issue of recognition not enforcement per se. How then does a
simple injunction provision against a specific department of the Executive Branch of the state
government resolve the violation. If indeed the United States Constitution protects the moral and
sexual choices of the people of the United States, then that protection must be by requiring
abrogation of violative laws.
This issue was recently reviewed by the United States District Court, Utah District in
Kitchen v. Herbert (D. Utah, 2013), 13-cv-00217. The Court provided as follows:
The court begins its analysis by determining the effect of the Supreme Courts
recent decision in United States v. Windsor, 133 S. Ct. 2675 (2013). In Windsor,
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Robicheaux v. Caldwell
Page 10
the Court considered the constitutionality of Section 3 of DOMA, which defined
marriage as the legal union between one man and one woman as husband and
wife for the purposes of federal law. 1 U.S.C. 7 (2012). A majority of the
Court found that this statute was unconstitutional because it violated the Fifth
Amendment of the United States Constitution. Windsor, 133 S. Ct. at 2696.

Both parties argue that the reasoning in Windsor requires judgment in their favor.
The State focuses on the portions of the Windsor opinion that emphasize
federalism, as well as the Courts acknowledgment of the States historic and
essential authority to define the marital relation. Id. at 2692; see also id. at 2691
([S]ubject to [constitutional] guarantees, regulation of domestic relations is an
area that has long been regarded as a virtually exclusive province of the States.
(quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975))). The State interprets Windsor
to stand for the proposition that DOMA was unconstitutional because the statute
departed from the federal governments history and tradition of reliance on state
law to define marriage. Id. at 2692. Just as the federal government cannot choose
to disregard a states decision to recognize same-sex marriage, Utah asserts that
the federal government cannot intrude upon a states decision not to recognize
same-sex marriage. In other words, Utah believes that it is up to each individual
state to decide whether two persons of the same sex may occupy the same status
and dignity as that of a man and woman in lawful marriage. Id. at 2689.

The Plaintiffs disagree with this interpretation and point out that the Windsor
Court did not base its decision on the Tenth Amendment. Instead, the Court
grounded its holding in the Due Process Clause of the Fifth Amendment, which
protects an individuals right to liberty. Id. at 2695 (DOMA is unconstitutional as
a deprivation of the liberty of the person protected by the Fifth Amendment of the
Constitution.). The Court found that DOMA violated the Fifth Amendment
because the statute place[d] same-sex couples in an unstable position of being in
a second-tier marriage, a differentiation that demean[ed] the couple, whose
moral and sexual choices the Constitution protects[.] Id. at 2694. The Plaintiffs
argue that for the same reasons the Fifth Amendment prohibits the federal
government from differentiating between same-sex and opposite-sex couples, the
Fourteenth Amendment prohibits state governments from making this distinction.

Both parties present compelling arguments, and the protection of states rights and
individual rights are both weighty concerns. In Windsor, these interests were
allied against the ability of the federal government to disregard a state law that
protected individual rights. Here, these interests directly oppose each other. The
Windsor court did not resolve this conflict in the context of state-law prohibitions
of same-sex marriage. See id. at 2696 (Roberts, C.J., dissenting) (The Court does
not have before it . . . the distinct question whether the States . . . may continue to
utilize the traditional definition of marriage.). But the Supreme Court has
considered analogous questions that involve the tension between these two values
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Robicheaux v. Caldwell
Page 11
in other cases. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (balancing the
states right to regulate marriage against the individuals right to equal protection
and due process under the law). In these cases, the Court has held that the
Fourteenth Amendment requires that individual rights take precedence over
states rights where these two interests are in conflict. See id. at 7 (holding that a
states power to regulate marriage is limited by the Fourteenth Amendment).

The Constitutions protection of the individual rights of gay and lesbian citizens is
equally dispositive whether this protection requires a court to respect a state law,
as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here.
In his dissenting opinion, the Honorable Antonin Scalia recognized that this result
was the logical outcome of the Courts ruling in Windsor:

In my opinion, however, the view that this Court will take of state
prohibition of same-sex marriage is indicated beyond mistaking by
todays opinion. As I have said, the real rationale of todays
opinion . . . is that DOMA is motivated by bare . . . desire to
harm couples in same-sex marriages. How easy it is, indeed how
inevitable, to reach the same conclusion with regard to state laws
denying samesex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court
agrees with Justice Scalias interpretation of Windsor and finds that the important
federalism concerns at issue here are nevertheless insufficient to save a state-law
prohibition that denies the Plaintiffs their rights to due process and equal
protection under the law.

Kitchen v. Herbert (D. Utah, 2013), 13-cv-00217.
It is respectfully submitted that the United States Constitution in its very language has
never provided for sovereign immunity per se. It is further respectfully submitted that the United
States Supreme Court in Hans v. Louisiana created a perverse application of the Xth and XIth
Amendments to the United States Constitution to prevent citizens from requiring the state
governments to obey the legal contruct and governance of the United States Constitution but
did so primarily to prevent financial liability of the state governments. It drawing the Hans
decision out for the one hundred and twenty-three years, the federal courts have allowed states to
opt-out of complying with the United States Constitutional mandates by simply invoking
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Robicheaux v. Caldwell
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sovereign immunity a concept that violates the very establishment of the democratic form of
government in which the American Citizenry are themselves, individually and corporately.
For these reasons, and those addressed in the original memorandum, it is respectfully
prayed that this Honorable Court reconsider and reverse its November 26, 2013 dismissal of
plaintiffs complaint against the Louisiana Attorney General acting in his official capacity
representing the State of Louisiana.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 31, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 45-2 Filed 12/31/13 Page 12 of 12
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


ORDER

IT IS ORDERED that the Motion for Leave to File Supplemental Memorandum in Support
of Plaintiffs Motion for Reconsideration filed by the Plaintiffs, is GRANTED.
New Orleans, Louisiana, this ______ day of December, 2013.

_____________________________________
Judge Martin L.C. Feldman
United States District Court
Eastern District of Louisiana

2nd
January, 2014.
Case 2:13-cv-05090-MLCF-ALC Document 46 Filed 01/02/14 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux et al
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


FIRST SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
MOTION TO RECONSIDER UNDER
RULES 59 AND 60 OF THE FEDERAL RULES OF CIVIL PROCEDURE

MAY IT PLEASE THE COURT.
This matter comes on for cause on your plaintiffs motion to reconsider the Order signed
on November 26, 2013, granting the Louisiana Attorney Generals Motion to Dismiss under
Rule 12(b)(1) under the concept of Sovereign Immunity (Doc. 33). In this regard, your plaintiffs
respectfully submit that regardless of the Ex parte Young exceptions to the concept frequently
referred to as Sovereign Immunity, the plaintiffs have properly named the Louisiana Attorney
General as a defendant in their claim that one provision of the Louisiana Constitution and one
provision of the Louisiana Civil Code is in violation of the United States Constitution.
In the first memorandum, Plaintiffs argue that the State has specifically violated the
enabling and formation Act of Congress in the enactment and judicial operation of the two laws
at issue. In this supplemental memorandum, the plaintiffs urge this Honorable Court to
specifically review the actual language of the United States Constitution and applicable case law
and find that the concept of Sovereign Immunity does not apply in the case sub judice.
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Robicheaux v. Caldwell
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In your Honors Order and Reasons, it specifically states: The Eleventh Amendment to
the U.S. Constitution bars suits by private citizens against a state in federal court. K.P. v.
LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)(citing Hutto v. Finney, 437 U.S. 678, 700 (1978)).
This immunity extends to protect state actors who are acting in their official capacities. Id. Case
2:13-cv-05090-MLCF-ALC Document 33 Filed 11/27/13 Page 3 of 7. However, the plaintiffs
would like to begin with the actual language of the Eleventh Amendment to the United States
Constitution.
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. AMEND. XI. Nowhere does the Eleventh Amendment state that the judicial
power of the United State shall not be construed to extend to any suit commenced or prosecuted
against one of the United States by Citizens of its own State.
The Eleventh Amendment, which was the first Constitutional amendment after the
adoption of the Bill of Rights, was adopted following the Supreme Court's ruling in Chisholm v.
Georgia, 2 U.S. 419 (1793). In Chisholm, the Court ruled that federal courts had the authority to
hear cases in law and equity brought by private citizens against states and that states did not
enjoy sovereign immunity from suits made by citizens of other states in federal court. Thus, the
amendment clarified Article III, Section 2 of the Constitution, which gave diversity jurisdiction
to the judiciary to hear cases "between a state and citizens of another state." In Hollingsworth v.
Virginia, 3 U.S. 378 (1798), the Supreme Court held that every pending action brought under
Chisholm had to be dismissed because of the amendment's adoption. The amendment's text does
not mention suits brought against a state by its own citizens. However, in Hans v. Louisiana,
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Robicheaux v. Caldwell
Page 3
134 U.S. 1 (1890), the Supreme Court ruled that the amendment reflects a broader principle of
sovereign immunity. As Justice Anthony Kennedy, writing for a five Justice majority, stated in
Alden v. Maine, 527 U.S. 706 (1999):
[S]overeign immunity derives not from the Eleventh Amendment but from the
structure of the original Constitution itself....Nor can we conclude that the specific
Article I powers delegated to Congress necessarily include, by virtue of the
Necessary and Proper Clause or otherwise, the incidental authority to subject the
States to private suits as a means of achieving objectives otherwise within the
scope of the enumerated powers.

Alden v. Maine, 527 U.S. 706 (1999).

Writing for a four-Justice dissent in Alden, Justice David Souter said, in pertinent part,
that the States surrendered their sovereign immunity when they ratified the Constitution. The
dissenting justices read the amendment's text as reflecting a narrow form of sovereign immunity
that limited only the diversity jurisdiction of the federal courts. They concluded that the states are
not insulated from suits by individuals by either the Eleventh Amendment in particular or the
Constitution in general. See Alden v. Maine, 527 U.S. 706 (1999) dissent.
This is where your plaintiffs would like to draw the Courts attention. Your plaintiffs
respectfully suggest that the dissenting Justices were and are correct. Despite the legal
application of the concept of Sovereign Immunity throughout jurisprudence and indeed the very
beginning of Constitutional Law study at any institution of higher academic learning, there is
nothing in the United States Constitution that allows the State of Louisiana and the Louisiana
Attorney General in the case at bar to claim Sovereign Immunity. Indeed, the State has a right to
defend itself in claims that its laws are unconstitutional and in the absence of a States
willingness to do so, other interested parties have been given standing to do so. In this regard we
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Robicheaux v. Caldwell
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look to the Ninth Circuit Court of Appeals decision in Perry v. Brown, 671 F.3d 1052, 1069-73,
(9th Cir., 2012):

III

We begin, as we must, with the issue that has prolonged our consideration of
this case: whether we have jurisdiction over an appeal brought by the defendant-
intervenor Proponents, rather than the defendant state and local officers who were
directly enjoined by the district court order. 8 In view of Proponents' authority
under California law, we conclude that they do have standing to appeal.

For purposes of Article III standing, we start with the premise that a State
has standing to defend the constitutionality of its [laws]. Diamond v. Charles,
476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). When a state law is ruled
unconstitutional, either the state or a state officer charged with the law's
enforcement may appeal that determination. Typically, the named defendant in an
action challenging the constitutionality of a state law is a state officer, because
sovereign immunity protects the state from being sued directly. See Ex parte
Young, 209 U.S. 123, 15758, 28 S.Ct. 441, 52 L.Ed. 714 (1908); L.A. County
Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992). In such cases, if a court
invalidates the state law and enjoins its enforcement, there is no question that the
state officer is entitled to appeal that determination. See, e.g., Ysursa v. Pocatello
Educ. Ass'n, 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (Idaho
Secretary of State and Attorney General appealed decision striking down an Idaho
law on First Amendment grounds); Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct.
2597, 147 L.Ed.2d 743 (2000) (Nebraska Attorney General appealed decision
holding unconstitutional a Nebraska abortion law). Moreover, there is no reason
that a state itself may not also choose to intervene as a defendant, and indeed a
state must be permitted to intervene if a state officer is not already party to an
action in which the constitutionality of a state law is challenged. See 28 U.S.C.
2403(b); Fed.R.Civ.P. 5.1; cf. Fed. R.App. P. 44(b). When a state does elect to
become a defendant itself, the state may appeal an adverse decision about the
constitutionality of one of its laws, just as a state officer may. See, e.g., Caruso v.
Yamhill County ex rel. County Comm'r, 422 F.3d 848, 85253 & n. 2 (9th
Cir.2005) (sole appellant was the State of Oregon, which had intervened as a
defendant in the district court). In other words, in a suit for an injunction against
enforcement of an allegedly unconstitutional state law, it makes no practical
difference whether the formal party before the court is the state itself or a state
officer in his official capacity. Cf. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 114 n. 25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (discussing the
fiction of Ex parte Young ); see also Idaho v. Coeur d'Alene Tribe of Idaho, 521
U.S. 261, 26970, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (same).
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Robicheaux v. Caldwell
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Whether the defendant is the state or a state officer, the decision to assert the
state's own interest in the constitutionality of its laws is most commonly made by
the state's executive branchthe part of state government that is usually charged
with enforcing and defending state law. See, e.g., Ysursa, 555 U.S. at 354, 129
S.Ct. 1093 (Idaho state officers represented by state Attorney General); Caruso,
422 F.3d at 851 (State of Oregon represented by Oregon Department of Justice).
Some sovereigns vest the authority to assert their interest in litigation exclusively
in certain executive officers. See, e.g., 28 U.S.C. 51619; 28 C.F.R. 0.20.

The states need not follow that approach, however. It is their prerogative, as
independent sovereigns, to decide for themselves who may assert their interests
and under what circumstances, and to bestow that authority accordingly. In
Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), for example,
the Supreme Court held that the State of New Jersey was properly represented in
litigation by the Speaker of the General Assembly and the President of the Senate,
appearing on behalf of the Legislature, because the New Jersey Legislature had
authority under state law to represent the State's interests. Id. at 82, 108 S.Ct. 388
(citing In re Forsythe, 91 N.J. 141, 450 A.2d 499, 500 (1982)).9 Principles of
federalism require that federal courts respect such decisions by the states as to
who may speak for them: there are limits on the Federal Government's power to
affect the internal operations of a State. Va. Office for Protection & Advocacy v.
Stewart, U.S. , 131 S.Ct. 1632, 1641, 179 L.Ed.2d 675 (2011). It is not
for a federal court to tell a state who may appear on its behalf any more than it is
for Congress to direct state law-enforcement officers to administer a federal
regulatory scheme, see Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138
L.Ed.2d 914 (1997), to command a state to take ownership of waste generated
within its borders, see New York v. United States, 505 U.S. 144, 112 S.Ct. 2408,
120 L.Ed.2d 120 (1992), or to dictate where a state shall locate its capital, see
Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911). Who may speak
for the state is, necessarily, a question of state law. All a federal court need
determine is that the state has suffered a harm sufficient to confer standing and
that the party seeking to invoke the jurisdiction of the court is authorized by the
state to represent its interest in remedying that harm.

. . . .

It matters not whether federal courts think it wise or desirable for California
to afford proponents this authority to speak for the State, just as it makes no
difference whether federal courts think it a good idea that California allows its
constitution to be amended by a majority vote through a ballot measure in the first
place. Cf. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56
L.Ed. 377 (1912) (holding nonjusticiable a Guaranty Clause challenge to Oregon's
initiative system). The People of California are largely free to structure their
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Robicheaux v. Caldwell
Page 6
system of governance as they choose, and we respect their choice. All that
matters, for federal standing purposes, is that the People have an interest in the
validity of Proposition 8 and that, under California law, Proponents are authorized
to represent the People's interest. That is the case here.

Perry v. Brown, 12 Cal. Daily Op. Serv. 1550, 671 F.3d 1052, 1069 - 73, 2012
Daily Journal D.A.R. 1705 (9th Cir., 2012)

As the Court is well-aware, the United States Supreme Court reversed finding that the
proponents had no standing.
The only individuals who sought to appeal that order were petitioners, who had
intervened in the District Court. But the District Court had not ordered them to do
or refrain from doing anything. To have standing, a litigant must seek relief for an
injury that affects him in a "personal and individual way." Defenders of Wildlife,
supra, at 560, n. 1. He must possess a "direct stake in the outcome" of the case.
Arizonans for Official English, supra, at 64 (internal quotation marks omitted).
Here, however, petitioners had no "direct stake" in the outcome of their appeal.
Their only interest in having the District Court order reversed was to vindicate the
constitutional validity of a generally applicable California law.

We have repeatedly held that such a "generalized grievance," no matter how
sincere, is insufficient to confer standing. A litigant "raising only a generally
available grievance about government-claiming only harm to his and every
citizen's interest in proper application of the Constitution and laws, and seeking
relief that no more directly and tangibly benefits him than it does the public at
large-does not state an Article III case or controversy." Defenders of Wildlife,
supra, at 573-574; see Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam)
("Our refusal to serve as a forum for generalized grievances has a lengthy
pedigree."); Allen v. Wright, 468 U. S. 737, 754 (1984) ("an asserted right to have
the Government act in accordance with law is not sufficient, standing alone, to
confer jurisdiction on a federal court"); Massachusetts v. Mellon, 262 U. S. 447,
488 (1923) ("The party who invokes the [judicial] power must be able to show . . .
that he has sustained or is immediately in danger of sustaining some direct injury .
. . and not merely that he suffers in some indefinite way in common with people
generally.").

Petitioners argue that the California Constitution and its election laws give
them a " 'unique,' 'special,' and 'distinct' role in the initiative process-one
'involving both authority and responsibilities that differ from other supporters of
the measure.'" Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d,
at 1006, 1017-1018, 1030). True enough-but only when it comes to the process of
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Robicheaux v. Caldwell
Page 7
enacting the law. Upon submitting the proposed initiative to the attorney general,
petitioners became the official "proponents" of Proposition 8. Cal. Elec. Code
Ann. 342 (West 2003). As such, they were responsible for collecting the
signatures required to qualify the measure for the ballot. 9607-9609. After
those signatures were collected, the proponents alone had the right to file the
measure with election officials to put it on the ballot. 9032. Petitioners also
possessed control over the arguments in favor of the initiative that would appear
in California's ballot pamphlets. 9064, 9065, 9067, 9069.

But once Proposition 8 was approved by the voters, the measure became "a
duly enacted constitutional amendment or statute." 52 Cal. 4th, at 1147, 265 P. 3d,
at 1021. Petitioners have no role-special or otherwise-in the enforcement of
Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not "possess any
official authority . . . to directly enforce the initiative measure in question"). They
therefore have no "personal stake" in defending its enforcement that is
distinguishable from the general interest of every citizen of California. Defenders
of Wildlife, supra, at 560-561.

Article III standing "is not to be placed in the hands of 'concerned
bystanders,' who will use it simply as a 'vehicle for the vindication of value
interests.'" Diamond, 476 U. S., at 62. No matter how deeply committed
petitioners may be to upholding Proposition 8 or how "zealous [their] advocacy,"
post, at 4 (KENNEDY, J., dissenting), that is not a "particularized" interest
sufficient to create a case or controversy under Article III. Defenders of Wildlife,
504 U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65
("Nor has this Court ever identified initiative proponents as Article-III-qualified
defenders of the measures they advocated."); Don't Bankrupt Washington
Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077
(1983) (summarily dismissing, for lack of standing, appeal by an initiative
proponent from a decision holding the initiative unconstitutional).
Hollingsworth v. Perry, 570 U.S. ___ (2013), pp. 11-13.
How can it stand to reason that an attorney general or those with a particularized
interest can defend a law and a states attorney general cannot be called as a defendant to
defend a law? And this backward logic is further exacerbated when a person seeks to strike
down laws regarding civil rights and standing such as the right to have his or her marriage
recognized.
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Robicheaux v. Caldwell
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The Ex parte Young progeny of cases speak to a plaintiffs right to seek an injunction
against an enforcer of the laws. But, what if the enforcer is actually the courts themselves? For
example, the plaintiffs have already drawn your Honors attention to a Louisiana case, In re
Constanza, wherein there was no state actor or enforcer of the law per se. The trial judge was
bound by his position to obey and apply the state constitution that directly stated: No official or
court of the state of Louisiana shall construe this constitution or any state law to require that
marriage or the legal incidents thereof be conferred upon any member of a union other than the
union of one man and one woman.
All judges are absolutely immune from civil litigation absent proof that he was acting
outside of his judicial capacity or that he acted in the complete absence of all jurisdiction.
Mireles v. Waco, 502 U.S. 9, 13, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). So, then, how would a
citizen of a state have any vehicle for redress when a state law infringes on his or her rights as an
American Citizen in violation of the United States Constitution? An obvious example would be
if Louisiana had a law that said that white people and non-white people could not be married and
marriages between white people and non-white people who are legally married in other states
would not be recognized? We all know that Loving v. Virginia has resolved this issue and it was
properly brought in federal court because the state arrested Mr. Loving. But, what if the law did
not require incarceration what if the law did not make it a crime per se? Would that mean that
the state could operationally prevent federal review? The law at hand was properly challenged in
federal court in 2004, at which time the Louisiana Supreme Court upheld the amendment to the
Louisiana Constitution: Forum for Equality PAC v. McKeithen, 893 So.2d 715 (La., 2005). The
Forum for Equality PAC sued the Attorney General and the claim was lost. It is respectfully
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Robicheaux v. Caldwell
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submitted that there is nothing in the United States Constitution that prevents a citizen from
suing its State or the Attorney General in his official capacity when it has a law that violates the
United States Constitution and the rights given to the people thereunder.
The United States Supreme Court has already ruled that a federal law that discriminated
against same-sex married couples was a violation of the United States Constitution. In Windsor,
the Court considered the constitutionality of Section 3 of DOMA, which defined marriage as the
legal union between one man and one woman as husband and wife for the purposes of federal
law. United States v. Windsor, 133 S. Ct. 2675 (2013); 1 U.S.C. 7 (2012). A majority of the
Court found that this statute was unconstitutional because it violated the Fifth Amendment of the
United States Constitution. Windsor, 133 S. Ct. at 2696. The Court found that DOMA violated
the Fifth Amendment because the statute place[d] same-sex couples in an unstable position of
being in a second-tier marriage, a differentiation that demean[ed] the couple, whose moral and
sexual choices the Constitution protects[.] Id. at 2694. So, the issue was not the enforcement of
the law, per se. The issues were a second class citizen status and the demeaning effect of the
law. Together they make the issue of recognition not enforcement per se. How then does a
simple injunction provision against a specific department of the Executive Branch of the state
government resolve the violation. If indeed the United States Constitution protects the moral and
sexual choices of the people of the United States, then that protection must be by requiring
abrogation of violative laws.
This issue was recently reviewed by the United States District Court, Utah District in
Kitchen v. Herbert (D. Utah, 2013), 13-cv-00217. The Court provided as follows:
The court begins its analysis by determining the effect of the Supreme Courts
recent decision in United States v. Windsor, 133 S. Ct. 2675 (2013). In Windsor,
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Robicheaux v. Caldwell
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the Court considered the constitutionality of Section 3 of DOMA, which defined
marriage as the legal union between one man and one woman as husband and
wife for the purposes of federal law. 1 U.S.C. 7 (2012). A majority of the
Court found that this statute was unconstitutional because it violated the Fifth
Amendment of the United States Constitution. Windsor, 133 S. Ct. at 2696.

Both parties argue that the reasoning in Windsor requires judgment in their favor.
The State focuses on the portions of the Windsor opinion that emphasize
federalism, as well as the Courts acknowledgment of the States historic and
essential authority to define the marital relation. Id. at 2692; see also id. at 2691
([S]ubject to [constitutional] guarantees, regulation of domestic relations is an
area that has long been regarded as a virtually exclusive province of the States.
(quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975))). The State interprets Windsor
to stand for the proposition that DOMA was unconstitutional because the statute
departed from the federal governments history and tradition of reliance on state
law to define marriage. Id. at 2692. Just as the federal government cannot choose
to disregard a states decision to recognize same-sex marriage, Utah asserts that
the federal government cannot intrude upon a states decision not to recognize
same-sex marriage. In other words, Utah believes that it is up to each individual
state to decide whether two persons of the same sex may occupy the same status
and dignity as that of a man and woman in lawful marriage. Id. at 2689.

The Plaintiffs disagree with this interpretation and point out that the Windsor
Court did not base its decision on the Tenth Amendment. Instead, the Court
grounded its holding in the Due Process Clause of the Fifth Amendment, which
protects an individuals right to liberty. Id. at 2695 (DOMA is unconstitutional as
a deprivation of the liberty of the person protected by the Fifth Amendment of the
Constitution.). The Court found that DOMA violated the Fifth Amendment
because the statute place[d] same-sex couples in an unstable position of being in
a second-tier marriage, a differentiation that demean[ed] the couple, whose
moral and sexual choices the Constitution protects[.] Id. at 2694. The Plaintiffs
argue that for the same reasons the Fifth Amendment prohibits the federal
government from differentiating between same-sex and opposite-sex couples, the
Fourteenth Amendment prohibits state governments from making this distinction.

Both parties present compelling arguments, and the protection of states rights and
individual rights are both weighty concerns. In Windsor, these interests were
allied against the ability of the federal government to disregard a state law that
protected individual rights. Here, these interests directly oppose each other. The
Windsor court did not resolve this conflict in the context of state-law prohibitions
of same-sex marriage. See id. at 2696 (Roberts, C.J., dissenting) (The Court does
not have before it . . . the distinct question whether the States . . . may continue to
utilize the traditional definition of marriage.). But the Supreme Court has
considered analogous questions that involve the tension between these two values
Case 2:13-cv-05090-MLCF-ALC Document 47 Filed 01/02/14 Page 10 of 12


Robicheaux v. Caldwell
Page 11
in other cases. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (balancing the
states right to regulate marriage against the individuals right to equal protection
and due process under the law). In these cases, the Court has held that the
Fourteenth Amendment requires that individual rights take precedence over
states rights where these two interests are in conflict. See id. at 7 (holding that a
states power to regulate marriage is limited by the Fourteenth Amendment).

The Constitutions protection of the individual rights of gay and lesbian citizens is
equally dispositive whether this protection requires a court to respect a state law,
as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here.
In his dissenting opinion, the Honorable Antonin Scalia recognized that this result
was the logical outcome of the Courts ruling in Windsor:

In my opinion, however, the view that this Court will take of state
prohibition of same-sex marriage is indicated beyond mistaking by
todays opinion. As I have said, the real rationale of todays
opinion . . . is that DOMA is motivated by bare . . . desire to
harm couples in same-sex marriages. How easy it is, indeed how
inevitable, to reach the same conclusion with regard to state laws
denying samesex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court
agrees with Justice Scalias interpretation of Windsor and finds that the important
federalism concerns at issue here are nevertheless insufficient to save a state-law
prohibition that denies the Plaintiffs their rights to due process and equal
protection under the law.

Kitchen v. Herbert (D. Utah, 2013), 13-cv-00217.
It is respectfully submitted that the United States Constitution in its very language has
never provided for sovereign immunity per se. It is further respectfully submitted that the United
States Supreme Court in Hans v. Louisiana created a perverse application of the Xth and XIth
Amendments to the United States Constitution to prevent citizens from requiring the state
governments to obey the legal contruct and governance of the United States Constitution but
did so primarily to prevent financial liability of the state governments. It drawing the Hans
decision out for the one hundred and twenty-three years, the federal courts have allowed states to
opt-out of complying with the United States Constitutional mandates by simply invoking
Case 2:13-cv-05090-MLCF-ALC Document 47 Filed 01/02/14 Page 11 of 12


Robicheaux v. Caldwell
Page 12
sovereign immunity a concept that violates the very establishment of the democratic form of
government in which the American Citizenry are themselves, individually and corporately.
For these reasons, and those addressed in the original memorandum, it is respectfully
prayed that this Honorable Court reconsider and reverse its November 26, 2013 dismissal of
plaintiffs complaint against the Louisiana Attorney General acting in his official capacity
representing the State of Louisiana.

Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I, Scott J. Spivey, hereby certify that, on December 31, 2013, I electronically filed the
forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of
electronic filing to all counsel of record.





Case 2:13-cv-05090-MLCF-ALC Document 47 Filed 01/02/14 Page 12 of 12
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090
*
*
*
Versus *
*
JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF
ATTORNEY GENERAL *
* MAGISTRATE JUDGE: ALC
******************************************************************************

THE ATTORNEY GENERALS OPPOSITION TO THE PLAINTIFFS MOTION TO
RECONSIDER

MAY IT PLEASE THE COURT, through undersigned counsel, comes the named
Defendant, James D. Buddy Caldwell, in his official capacity as Attorney General of the State
of Louisiana, who files this Opposition Memorandum to the Plaintiffs Motion to Reconsider
Under Rules 59 and 60 of the Federal Rules of Civil Procedure granting the Attorney Generals
Motion to Dismiss for lack of subject matter jurisdiction. This Honorable Court correctly
dismissed the only defendant in this matter based on the Attorney Generals Motion to Dismiss
for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
1

The Plaintiffs Motion to Reconsider should be denied. It has no merit; nowhere in their
Motion do they present any evidence or argument that should sway this Honorable Courts
decision. The Attorney General is protected from suit in federal court based on Eleventh
Amendment immunity.
2

Even though the Federal Rules of Civil Procedure allow for the reconsideration of final
judgments, Fed. R. Civ. P. 59 and 60, there is a strong public policy in favor of the finality of

1
Rec. Doc. 33.
2
Rec. Doc. 33.
Case 2:13-cv-05090-MLCF-ALC Document 48 Filed 01/07/14 Page 1 of 5
2
judgments. Such a consideration is especially true when applying Fed. R. Civ. P. 60(b)(6) to
justify relief from an operation of judgment. In re Ferro Corp. Derivative Litigation, 511 F.3d
611. (6th Cir. 2008).
3
[C]ourts must apply Rule 60(b)(6) relief only in unusual and extreme
situations . Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund, 249 F.3d
519, 524 (6th Cir. 2001) (internal citation omitted). Although the Plaintiffs do not expressly
state their claim under Fed. R. Civ. P. 60(b)(6), their motion appears to be based on that rule.
Although the Ex Parte Young doctrine is discussed in detail in both the Attorney
Generals Motion to Dismiss
4
as well as this Honorable Courts Order and Reasons,
5
the
Plaintiffs make no argument in their Motion for Reconsideration on this matter.
6
In fact, the
Plaintiffs memorandum concedes the Ex Parte Young doctrines application here stating as
you[r] Honor has clearly ruled on that issue as well as failing to bring forth any arguments
challenging that aspect of this Honorable Courts decision.
7

The Plaintiffs two memoranda focus on Eleventh Amendment immunity.
8
Their
argument, albeit unique, has no basis in law and would ask this court to undo over one hundred
years of valid precedent. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890);
K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010). This Honorable Court correctly held that
officials acting in their official capacity are protected from suit by Eleventh Amendment
immunity in federal court.
9
It is undisputed that the Attorney General is a state official acting in
his official capacity.

3
Although the Federal Sixth Circuit Court of Appeals is not binding precedent upon this court it does
provide strong persuasive support for the assertions that granting motions to reconsider is remedy scarcely applied.
4
See Rec. Doc. 24.
5
See Rec. Doc. 33, p. 3.
6
See Rec. Doc. 35-1 and 47.
7
See Rec. Doc. 35-1, p. 8; See also Rec. Doc. 47.
8
See Rec. Doc. 35-1 and 47.
9
See Rec. Doc. 33, p. 3 (citing K.P., 627 F.3d at 124).
Case 2:13-cv-05090-MLCF-ALC Document 48 Filed 01/07/14 Page 2 of 5
3
The Plaintiffs two supporting memoranda focus entirely on the argument that the well-
established principle of Eleventh Amendment immunity does not apply in this matter.
10
Such a
suggestion is not legally supportable. The application of Eleventh Amendment immunity to
states and state officials is a well-settled principle and under common law jurisdiction, to which
the federal system affiliates, court-determined precedent is binding law barring serious
significant reasons to overturn such a principle. Adhering to precedent is usually the wise
policy, because in most matters it is more important that the applicable rule of law be settled than
it be settled right. Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d
720 (1991) (internal citation omitted). The United States Supreme Court refers to this adherence
as the principle of stare decisis. Stare decisis ensures that the law
will not merely change erratically, but will develop in a principled and intelligible
fashion. That doctrine permits society to presume that bedrock principles are
founded in the law rather than in the proclivities of individuals, and thereby
contributes to the integrity of our constitutional system of government, both in
appearance and in fact.

Vasquez v. Hillery, 474 U.S. 254, 265-66, 106 S. Ct. 617, 624, 88 L. Ed. 2d 598 (1986).

The Plaintiffs ask this court to ignore past precedent in its interpretation of Eleventh
Amendment immunity. The Plaintiffs argument fails to consider the gravity of ignoring past
precedent. Nor do they provide enough of a persuasive argument or material support to give the
Court even a moments pause in deciding to uphold its Motion to Dismiss. The Plaintiffs
assertion that this Honorable Court should ignore past precedent based on a dissenting opinion
and their unique argument is simply nonsensical. Additionally, the lengthy block quote from
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)
11
that quotation addresses only the standing of the

10
See Rec. Doc. 35-1 and 47.
11
Vacated and Remanded by Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (2013).

Case 2:13-cv-05090-MLCF-ALC Document 48 Filed 01/07/14 Page 3 of 5
4
state to intervene in a case, not when the state or state official is named as a party defendant.
12

Thus, it is not applicable here nor is it precedential.
The Plaintiffs Motion for Reconsideration makes an alternative argument that if this
Honorable Court does not grant their request they seek to be allowed to amend their suit to name
new defendants.
13
It is respectfully submitted that nothing within that amendment will remedy
this Honorable Courts lack of subject matter jurisdiction as to the Attorney General.
To conclude, the Plaintiffs Motion to Reconsider should be denied as it has no merit. .
WHEREFORE, James D. Buddy Caldwell, in his official capacity as Attorney General
of the State of Louisiana, prays that this Court deny the Plaintiffs Motion for Reconsideration.

RESPECTFULLY SUBMITTED,
James D. Buddy Caldwell
ATTORNEY GENERAL

/s/Jessica MP Thornhill________________
Jessica MP Thornhill (La. Bar # 34118)
Angelique Duhon Freel (La. Bar # 28561)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division
P. O. BOX 94005
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6060
Facsimile: (225) 326-6098
Email: thornhillj@ag.state.la.us
freela@ag.state.la.us







12
See Rec. Doc. 47, p. 4.
13
See Rec. Doc. 35-1, p. 10. Additionally, the Plaintiffs have filed a motion to requesting to amend their
petition, which is set to be heard before this Honorable Court on January 15, 2014. Rec. Doc. 38.
Case 2:13-cv-05090-MLCF-ALC Document 48 Filed 01/07/14 Page 4 of 5
5
CERTIFICATE OF SERVICE

I hereby certify that, on January 7, 2014, I electronically filed the forgoing with the Clerk
of Court by using the CM/EMF system, which will send a notice of electronic filing to all
counsel of record.

_____/s/Jessica MP Thornhill_______
Jessica MP Thornhill
Case 2:13-cv-05090-MLCF-ALC Document 48 Filed 01/07/14 Page 5 of 5
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX, ET AL. CI VI L ACTI ON
v. NO. 13- 5090

J AMES D. CALDWELL, SECTI ON " F"
LOUI SI ANA ATTORNEY GENERAL
ORDER & REASONS
Bef or e t he Cour t ar e pl ai nt i f f s' mot i ons t o r econsi der and f or
l eave t o f i l e a t hi r d amended compl ai nt . For t he r easons t hat
f ol l ow, t he mot i ons ar e DENI ED.
Backgr ound
Thi s l awsui t chal l enged t he const i t ut i onal i t y of Loui si ana' s
ban on same- sex mar r i age and i t s r ef usal t o r ecogni ze same- sex
mar r i ages per mi t t ed i n ot her st at es. J onat han Robi cheaux mar r i ed
hi s same- sex par t ner i n I owa, but l i ves i n Or l eans Par i sh,
Loui si ana; he al l eged t hat Loui si ana' s def ense of mar r i age
amendment t o t he st at e const i t ut i on ( La. Const . ar t . 12, 15) and
ar t i cl e 3520 of t he Loui si ana Ci vi l Code ( whi ch decr ees t hat same-
sex mar r i age vi ol at es Loui si ana' s st r ong publ i c pol i cy and
pr ecl udes r ecogni t i on of any such mar r i age cont r act f r om anot her
st at e) vi ol at e hi s f eder al const i t ut i onal r i ght s.
Robi cheaux named t he Loui si ana At t or ney Gener al J ames " Buddy"
1
Case 2:13-cv-05090-MLCF-ALC Document 49 Filed 01/13/14 Page 1 of 6
Cal dwel l as t he onl y def endant i n t hi s case. When Robi cheaux f i r st
br ought sui t , he al l eged onl y vi ol at i ons of t he f ul l f ai t h and
cr edi t cl ause; however , he t hen amended hi s compl ai nt t o add cl ai ms
of due pr ocess and equal pr ot ect i on vi ol at i ons. And al t hough
Robi cheaux i ni t i al l y br ought t hi s sui t al one, he amended hi s
compl ai nt f or a second t i me t o i ncl ude as addi t i onal pl ai nt i f f s hi s
par t ner , Der ek Pent on, and anot her coupl e al so mar r i ed i n I owa but
now l i vi ng i n Loui si ana, Nadi ne and Cour t ney Bl anchar d.
At t or ney Gener al Cal dwel l moved t o di smi ss or t r ansf er t he
case f or i mpr oper venue, and t hen t o di smi ss f or l ack of
j ur i sdi ct i on based on sover ei gn i mmuni t y. On November 26, 2013,
t he Cour t gr ant ed t he At t or ney Gener al ' s mot i on t o di smi ss f or l ack
of j ur i sdi ct i on and deni ed t he mot i on t o di smi ss or t r ansf er f or
i mpr oper venue as moot . The Cour t hel d t hat pl ai nt i f f s f el l shor t
of sat i sf yi ng t he r equi r ement of Ex par t e Young
1
t hat t he st at e
of f i ci al have " some connect i on" t o t he enf or cement of t he
chal l enged st at e l aw. Si x days l at er , pl ai nt i f f s f i l ed t hi s mot i on
aski ng t he Cour t t o r econsi der i t s r ul i ng. Pl ai nt i f f s have al so
f i l ed a mot i on f or l eave t o f i l e a t hi r d amended compl ai nt .
I .
A.
Mot i ons r equest i ng r econsi der at i on of cour t or der s gener al l y
f al l under Rul e 59( e) or Rul e 60 of t he Feder al Rul es of Ci vi l
1
209 U.S. 123 (1908).
2
Case 2:13-cv-05090-MLCF-ALC Document 49 Filed 01/13/14 Page 2 of 6
Pr ocedur e. See Hi ggi ns v. Cai n, No. 07- 9729, 2012 WL 3309716, at
*1 ( E. D. La. Aug. 13, 2012) . Rul e 59( e) pr ovi des t hat a mot i on t o
al t er or amend a j udgment must be f i l ed no l at er t han t went y- ei ght
days af t er t he ent r y of j udgment . Fed. R. Ci v. P. 59( e) . Rul e
60( b) , on t he ot her hand, appl i es t o mot i ons f i l ed af t er t he
t went y- ei ght day per i od, but demands mor e exact i ng subst ant i ve
r equi r ement s. See Lavesper e v. Ni agar a Machi ne & Tool Wor ks,
I nc. , 910 F. 2d 167, 173- 74 ( 5t h Ci r . 1990) , abr ogat ed on ot her
gr ounds, Li t t l e v. Li qui d Ai r Cor p. , 37 F. 3d 1069, 1078 ( 5t h Ci r .
1994) ( en banc) . Because t he Cour t ent er ed t he or der di smi ssi ng
t he case on November 26, 2013, and t he pl ai nt i f f s f i l ed t he mot i on
t o r econsi der si x days l at er on December 2, 2013, t he mot i on i s
t i mel y under Rul e 59( e) , and such anal ysi s i s appr opr i at e.
B.
A Rul e 59( e) mot i on cal l s i nt o quest i on t he cor r ect ness of
a j udgment . Templ et v. Hydr ochem, I nc. , 367 F. 3d 473, 478 ( 5t h
Ci r . 2004) ( quot i ng I n r e Tr anst exas Gas Cor p. , 303 F. 3d 571, 581
( 5t h Ci r . 2002) ) . Because of t he i nt er est i n f i nal i t y, Rul e 59( e)
mot i ons may onl y be gr ant ed i f t he movi ng par t y shows t her e was a
mi st ake of l aw or f act or pr esent s newl y di scover ed evi dence t hat
coul d not have been di scover ed pr evi ousl y. I d. at 478- 79.
Mor eover , Rul e 59 mot i ons shoul d not be used t o r el i t i gat e ol d
mat t er s, r ai se new ar gument s, or submi t evi dence t hat coul d have
been pr esent ed ear l i er i n t he pr oceedi ngs. See i d. at 479;
3
Case 2:13-cv-05090-MLCF-ALC Document 49 Filed 01/13/14 Page 3 of 6
Rosenbl at t v. Uni t ed Way of Gr eat er Houst on, 607 F. 3d 413, 419 ( 5t h
Ci r . 2010) ( [ A] mot i on t o al t er or amend t he j udgment under Rul e
59( e) must cl ear l y est abl i sh ei t her a mani f est er r or of l aw or
f act or must pr esent newl y di scover ed evi dence and cannot be used
t o r ai se ar gument s whi ch coul d, and shoul d, have been made bef or e
t he j udgment i ssued. ) ( ci t i ng Rosenzwei g v. Azur i x Cor p. , 332 F. 3d
854, 864 ( 5t h Ci r . 2003) ( quot i ng Si mon v. Uni t ed St at es, 891 F. 2d
1154, 1159 ( 5t h Ci r . 1990) ) . The gr ant of such a mot i on i s an
ext r aor di nar y r emedy t hat shoul d be used spar i ngl y. I ndep. Coca-
Col a Empl oyees Uni on of Lake Char l es, No. 1060 v. Coca- Col a
Bot t l i ng Co. Uni t ed, I nc. , 114 F. App x 137, 143 ( 5t h Ci r . 2004)
( ci t i ng Templ et , 367 F. 3d at 479) . The Cour t must bal ance t wo
i mpor t ant j udi ci al i mper at i ves i n deci di ng whet her t o r eopen a case
i n r esponse t o a mot i on f or r econsi der at i on: ( 1) t he need t o br i ng
t he l i t i gat i on t o an end; and ( 2) t he need t o r ender j ust deci si ons
on t he basi s of al l t he f act s. Templ et , 367 F. 3d at 479.
I I .
Pl ai nt i f f s cont end t hat t he Cour t shoul d r econsi der i t s or der
di smi ssi ng t hi s case f or l ack of j ur i sdi ct i on based on sover ei gn
i mmuni t y. However , i nst ead of asser t i ng a mi st ake of l aw or f act ,
pl ai nt i f f s submi t f or t he f i r st t i me a new cl ai mt hat La. Const .
ar t . 12, 15 vi ol at es not onl y t he U. S. Const i t ut i on but al so t he
Enabl i ng Act of t he St at e of Loui si ana.
2
Pl ai nt i f f s al so cont end
2
ch. 21, 2 St at . 641 ( 1811) .
4
Case 2:13-cv-05090-MLCF-ALC Document 49 Filed 01/13/14 Page 4 of 6
t hat not wi t hst andi ng Hans v. Loui si ana
3
and over one hundr ed year s
of j ur i spr udence, El event h Amendment sover ei gn i mmuni t y does not
act ual l y appl y t o sui t s commenced agai nst a st at e by i t s own
ci t i zens. Pl ai nt i f f s mai nt ai n t hat a st at e si mpl y cannot be i mmune
f r omi t s obl i gat i on t o compl y wi t h f eder al l aw.
Pl ai nt i f f s f ai l t o per suade t he Cour t t hat t he ext r aor di nar y
r emedy of r econsi der at i on i s war r ant ed. Pl ai nt i f f s mer el y t r y t o
r el i t i gat e i ssues and add ar gument s t hat t hey i gnor ed ear l i er ; t hey
show no mi st ake of l aw or f act i n t he Cour t ' s pr i or r ul i ng, nor do
t hey pr esent anyt hi ng t hat under mi nes t he Cour t ' s or der .
I I I .
Al t er nat i vel y, pl ai nt i f f s ur ge t he Cour t t o per mi t t hem t o
f i l e a t hi r d amended compl ai nt i n or der t o name anot her st at e
of f i ci al wi t h t he r equi si t e enf or cement connect i on necessar y t o
avoi d sover ei gn i mmuni t y. Pl ai nt i f f s cont end t hat under Fed. R.
Ci v. P. 15( a) ( 2) , " [ t ] he cour t shoul d f r eel y gi ve l eave when
j ust i ce so r equi r es. " However , pl ai nt i f f s do not di sput e t he mor e
exact i ng st andar d appl i cabl e t o r equest s f or l eave t o amend f i l ed
af t er a case has been di smi ssed. " Post - j udgment amendment t o a
compl ai nt can onl y occur once t he j udgment i t sel f i s vacat ed under
Rul e 59( e) . See Hei ml i ch v. Har r i s Cnt y. , Texas, 81 F. App' x 816,
817 ( 5
t h
Ci r . 2003) ( ci t i ng Vi el ma v. Eur eka Co. , 218 F. 3d 458, 468
( 5
t h
Ci r . 2000) ) . The Fi f t h Ci r cui t has i nst r uct ed t hat [ i ] n cases
3
134 U. S. 1 ( 1890) .
5
Case 2:13-cv-05090-MLCF-ALC Document 49 Filed 01/13/14 Page 5 of 6
wher e a par t y seeks t o amend a compl ai nt af t er ent r y of j udgment ,
we have consi st ent l y uphel d t he deni al of l eave t o amend wher e t he
par t y seeki ng t o amend has not cl ear l y est abl i shed t hat he coul d
not r easonabl y have r ai sed t he new mat t er pr i or t o t he t r i al
cour t s mer i t s r ul i ng. I d. ( ci t i ng Br i ddl e v. Scot t , 63 F. 3d
364, 380 ( 5
t h
Ci r . 1995) ) .
The Cour t has decl i ned t o gr ant r econsi der at i on of i t s or der
di smi ssi ng pl ai nt i f f s' cl ai ms. And pl ai nt i f f s pr ovi de no suppor t
f or t hei r posi t i on t hat t he Cour t shoul d gr ant l eave t o amend f or
a t hi r d t i me, nor do t hey pr ovi de any cr edi bl e and compet ent
expl anat i on why per mi ssi on f or such amendment was not r equest ed
bef or e now.
Accor di ngl y, pl ai nt i f f s' mot i ons f or r econsi der at i on and f or
l eave t o f i l e a t hi r d amended compl ai nt ar e DENI ED.
New Or l eans, Loui si ana, J anuar y 13, 2014
______________________________
MARTI N L. C. FELDMAN
UNI TED STATES DI STRI CT J UDGE
6
Case 2:13-cv-05090-MLCF-ALC Document 49 Filed 01/13/14 Page 6 of 6




United States District Court for the Eastern District Of Louisiana

Case No. 13-CV-05090

Jonathan P. Robicheaux et al
Plaintiff/Petitioner NOTICE OF APPEAL
v.

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent


Notice is hereby given that Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard, and
Courtney Blanchard in the above named case hereby appeal to the United States Court of
Appeals for the Federal Circuit from the Order and Reasons entered in this action on January 13,
2014.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

Case 2:13-cv-05090-MLCF-ALC Document 50 Filed 01/16/14 Page 1 of 1




United States District Court for the Eastern District Of Louisiana

Case No. 13-CV-05090

Jonathan P. Robicheaux et al
Plaintiff/Petitioner NOTICE OF APPEAL
v.

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent
District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


Notice is hereby given that Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard, and
Courtney Blanchard in the above named case hereby appeal to the United States Court of
Appeals for the Fifth Circuit from the Order and Reasons entered in this action on January 13,
2014.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs

Case 2:13-cv-05090-MLCF-ALC Document 51 Filed 01/16/14 Page 1 of 1
Case 2:13-cv-05090-MLCF-ALC Document 52 Filed 01/16/14 Page 1 of 1
UNI TED STATES DI STRI CT COURT
EASTERN DI STRI CT OF LOUI SI ANA
J ONATHAN P. ROBI CHEAUX, ET AL. * CI VI L ACTI ON
VERSUS * NO. 14- 0097
DEVI N GEORGE * SECTI ON F ( 5)
I t havi ng come t o t he Cour t s at t ent i on t hat Ci vi l Act i on No.
13- 5090, Sect i on F( 5) i s r el at ed t o t he above case,
I T I S ORDERED t hat t he above mat t er s ar e consol i dat ed.
Pur suant t o t he Cour t s di r ect i ve, al l pl eadi ngs her eaf t er
f i l ed i n t hi s consol i dat ed pr oceedi ng shal l bear t he capt i on of t he
l ead consol i dat ed case t oget her wi t h t he docket number of al l cases
wi t hi n t he consol i dat i on t o whi ch t he document appl i es or t he
not at i on " ALL CASES" i f i t appl i es t o al l cases.
The cl er k of cour t i s di r ect ed t o est abl i sh a mast er f i l e and
a mast er docket sheet f or t he consol i dat ed gr oup of cases.
Al l ent r i es shal l be made on t he mast er docket sheet onl y,
wi t h a not at i on l i st i ng t he cases t o whi ch t he document appl i es,
except t hat or der s and document s t er mi nat i ng a par t y or di sposi ng
of a case wi l l al so be ent er ed on t he i ndi vi dual docket sheet . Al l
document s shal l be f i l ed i n t he mast er f i l e onl y, except t hat
or der s and document s t er mi nat i ng a par t y or di sposi ng of a case
wi l l al so be f i l ed i n t he r ecor d of t he i ndi vi dual case.
Case 2:13-cv-05090-MLCF-ALC Document 53 Filed 01/21/14 Page 1 of 2
I n t he event t hat a case i s separ at ed f r omt he consol i dat ed
gr oup i t shal l be t he r esponsi bi l i t y of counsel t o j oi nt l y
desi gnat e t he document s necessar y t o t he cont i nued l i t i gat i on of
t he case t o f i l e such desi gnat i on and copi es of t he document s.
2
Case 2:13-cv-05090-MLCF-ALC Document 53 Filed 01/21/14 Page 2 of 2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J ONATHAN P. ROBICHEQUX, ET AL. CIVIL ACTION
VERSUS NO. 13-5090
J AMES D. CALDWEL SECTION "F"(5)
J U D G M E N T
For the written reasons of the Court on file herein, accordingly;
IT IS ORDERED, ADJ UDGED AND DECREED that there be judgment in favor of
defendant, J ames D. Caldwell and against plaintiffs, J onathan P. Robicheaux, Derek Penton,
Nadine Blanchard and Courtney Blanchard, dismissing plaintiffs claims for lack of jurisdiction
based on sovereign immunity.
New Orleans, Louisiana, this day of J anuary, 2014.

UNITED STATES DISTRICT J UDGE
Case 2:13-cv-05090-MLCF-ALC Document 54 Filed 01/21/14 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w

Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD PLAINTIFFS

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD and COURTNEY
BLANCHARD, and move this Honorable Court for leave to amend the complaint in
Robicheaux at al v. George et al, 14-cv-00097, pursuant to Rule 15(a) of the Federal Rules of
Civil Procedure to add Robert Welles and Garth Beauregard as plaintiffs and to add the cause of
action to allow Robert Welles and Garth Beauregard to be issued a license to marry in Louisiana.
Rule 15(a) provides that leave to amend should be freely given when justice so requires. For
the reasons set forth in greater detail in the attached supporting memorandum, it is respectfully
submitted that adding these parties as plaintiffs is in the best interest of justice and judicial
economy.
Case 2:13-cv-05090-MLCF-ALC Document 55 Filed 01/22/14 Page 1 of 5


Robicheaux v. Caldwell
Page 2
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs, Jon Robicheaux, Derek
Penton, Nadine Blanchard and Courtney Blanchard

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Robicheaux v. Caldwell
Page 3
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w

Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN SUPPORT OF
MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD PLAINTIFFS

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiffs Motion for Leave to File Amended
Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
The Complaint was filed January 14, 2014 and after the Attorney General, James
Caldwell, was dismissed in the lead case. The parties filed a Notice of Appeal on January 16,
2014. On January 17, 2014, the subsequent complaint, the basis of this motion, was consolidated
by Order of the Court with the lead case. Letters have been sent to the defendants requesting
waiver of service. No responses have been received. No answers or other responsive pleadings
have been filed by the defendants.
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Robicheaux v. Caldwell
Page 4
SUMMARY OF LAW
Rule 15 of the Federal Rules of Civil Procedure is the rule regarding Amended and
Supplemental Pleadings. It reads in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.

Unless there is a substantial reason to deny leave to amend, the discretion of the district
court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th
Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist.,
28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading
U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so
requires," Fed. R. Civ. P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack
Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider
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Robicheaux v. Caldwell
Page 5
include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and
futility of amendment." Id.
PERTINENT FACTS
The parties remain within the twenty-one day time period under Rule 15(a)(1)(A) of the
Federal Rules of Civil Procedure.

CONCLUSION

Based upon the foregoing, it is respectfully prayed that this Honorable Court allow the
parties to amend the complaint with the submitted First Amended Complaint to the Complaint
filed on January 14, 2014..
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs, Jon Robicheaux, Derek
Penton, Nadine Blanchard and Courtney Blanchard

Case 2:13-cv-05090-MLCF-ALC Document 55 Filed 01/22/14 Page 5 of 5
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w Civil Action No. 14-CV-00097


ORDER TO FILE AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioners, Jonathan P. Robicheaux,
Derek Penton, Nadine Blanchard and Courtney Blanchard be and are hereby granted leave to file
the First Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of January,
2014.

_______________________________
JUDGE


UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w

Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


FIRST AMENDED COMPLAINT
FOR DELARATORY AND INJUNCTIVE RELIEF

NOW INTO COURT, through undersigned counsel, come
JONATHAN P. ROBICHEAUX, a person of full age and majority who is a resident of
Orleans Parish, residing in the United States District Court, Eastern District of Louisianas
district,
DEREK PENTON, a person of full age and majority who is a resident of Orleans Parish,
residing in the United States District Court, Eastern District of Louisianas district,
COURTNEY BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district, and
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FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
George et al
Page 2
NADINE BLANCHARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
ROBERT WELLES, a person of full age and majority who is a resident of Orleans
Parish, residing in the United States District Court, Eastern District of Louisianas district,
GARTH BEAUREGARD, a person of full age and majority who is a resident of
Lafourche Parish, residing in the United States District Court, Eastern District of Louisianas
district,
and respectfully represent:
THE PARTIES

1.
Made defendants herein are:
Devin George in his official capacity as State Registrar and Center Director at Louisiana
Department of Health and Hospitals;
Tim Barfield in his official capacity as Secretary, Louisiana Department of Revenue; and
Kathy Kliebert in her official capacity as Secretary, Louisiana Department of Health and
Hospitals.
2.
The Plaintiff, Jon Robicheaux, is a man residing in Louisiana who was legally married to
his Husband, Plaintiff, Derek Robicheaux in Clayton County, Iowa on September 23, 2012 after
having been in a committed relationship together since 2005 commingling funds, living together
and holding themselves out as monogamous partners that are living together as one union.
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FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
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3.
The Plaintiff, Courtney Blanchard, is a woman residing in Louisiana who was legally
married to her Wife, Plaintiff, Nadine Blanchard in Clinton County, Iowa on August 30, 2013
after having been in a committed relationship with a child, C.B., commingling funds, living
together and holding themselves out as monogamous partners that are living together as one
union.
4.
The Plaintiffs, Robert Welles and Garth Beauregard are men who currently reside in
Orleans Parish and have been in a committed relationship, commingling funds, owning property
together, living together and holding themselves out as monogamous partners that are living
together as one union of partners for twenty-four years.
JURISDICTION AND VENUE
5.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343
because the suit raises federal questions under 42 U.S.C. 1983, the United States Constitution,
including without limitation the Fourteenth Amendment.
6.

Venue is proper in the United States District Court for the Eastern District of Louisiana
under 28 U.S.C. 1391(b)(2) because the Defendants perform their official duties in this district,
as well as throughout the State of Louisiana, and this is the judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated and the location where plaintiffs, Robert Welles and
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Garth Beauregard went to the Orleans Parish Marriage License Application office on January 22,
2014 and their application was refused because they are a same-sex couple.
FACTUAL BACKGROUND
7.
The State of Louisiana prevents any official or court of the State of Louisiana from
recognizing a valid marriage from another State or Country that is between a same-sex couple
and prevents a same-sex couple from securing a marriage license and marrying in Louisiana,
thus depriving a legally married same-sex couple who were married in another state and
depriving a same-sex couple that wishes to be married in Louisiana from securing any benefits of
marriage within the State of Louisiana and stripping the legally married same-sex couple of any
rights to which the same-sex couple was vested prior to residing in the State of Louisiana or that
they enjoy in other states that recognize their marriage.
The State Laws at Issue
8.
On September 18, 2004 by popular vote, an amendment was made to the Louisiana
Constitution that reads as follows:
Article XII, Section 15. Marriage in the state of Louisiana shall consist only of the
union of one man and one woman. No official or court of the state of Louisiana
shall construe this constitution or any state law to require that marriage or the
legal incidents thereof be conferred upon any member of a union other than the
union of one man and one woman. A legal status identical or substantially similar
to that of marriage for unmarried individuals shall not be valid or recognized. No
official or court of the state of Louisiana shall recognize any marriage contracted
in any other jurisdiction which is not the union of one man and one woman.


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9.

Article 3520 of the Louisiana Civil Code reads as follows:
Art. 3520. Marriage

A. A marriage that is valid in the state where contracted, or in the state where the
parties were first domiciled as husband and wife, shall be treated as a valid
marriage unless to do so would violate a strong public policy of the state whose
law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public
policy of the state of Louisiana and such a marriage contracted in another state
shall not be recognized in this state for any purpose, including the assertion of any
right or claim as a result of the purported marriage.

Acts 1991, No. 923, 1, eff. Jan. 1, 1992; Acts 1999, No. 890, 1.

Same-Sex and Opposite-Sex Couples Are
Similarly Situated for Purposes of Marriage Benefits

10.
The United State Supreme Court has called marriage the most important relation in life,
Zablocki v. Redhail, 434 U.S. 374,384 (1978) (internal quotation marks omitted), and an
expression of emotional support and public commitment. Turner v. Safely, 482 U.S. 78, 95
(1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two
people...." United States v. Windsor, No. 12-307, Slip Op., at 20 (U.S. June 26, 2013). This is as
true for same-sex couples as it is for opposite-sex couples.
11.

Same-sex couples such as Plaintiffs are identical to opposite-sex couples in all of the
characteristics relevant to marriage.


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12.
Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples build their lives together, plan their futures together
and hope to grow old together. Like opposite-sex couples, same-sex couples support one another
emotionally and financially and take care of one another physically when faced with injury or
illness.
13.
Same-sex couples who marry are just as willing and able as opposite-sex couples to
assume the obligations of marriage.
14.
The Plaintiffs and other same-sex couples in Louisiana, if they were allowed to marry or
if their marriages in other states in which marriage is legal were recognized, would benefit no
less than opposite-sex couples from the many legal protections and the social recognition
afforded to married couples.
15.
There was a time when an individual's sex was relevant to his or her legal rights and
duties within the marital relationship. For example, husbands had a duty to support their wives
but not vice versa and husbands had legal ownership of all property belonging to their wives.
But these legal distinctions have all been removed such that the legal rights and duties of
husbands and wives are now identical.

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16.
The exclusion from marriage undermines the Plaintiffs abilities to achieve the life goals
and dreams with their spouses; threatens their mutual economic stability; and denies them "a
dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18
(U.S. June 26, 2013).
The Exclusion of Same-Sex Couples from the Recognition of Marriage
and the Benefits of Marriage Causes Substantial Harm to Couples and Their Families

17.
By refusing to allow same-sex couples to marry and refusing to recognize same-sex
marriage marriages from others states, the States laws deprive the plaintiffs of numerous legal
protections that are available to opposite-sex couples in Louisiana by virtue of their marriages.
By way of example only: The State provides that a living spouse is entitled to benefits upon the
death of his or her spouse should the decedent die intestate. Louisiana Civil Code Art. 890.
There is no protection for the widow or widower for same-sex spouses married in another State
in which they were legally and properly married. There is no protection for the surviving partner
of a same-sex couple that is committed, monogamous and in a loving legal relationship together.
18.
Same-sex married couples and same-sex couples who are not allowed to marry in the
state are excluded from this and many other legal protections provided for married couples under
Louisiana law.

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19.
The exclusion of same-sex couples from marriage also denies them eligibility for
numerous federal protections afforded to married couples including in the areas of immigration
and citizenship, taxes, and social security. Some of the federal protections for married couples
are only available to couples if their marriages are legally recognized in the state in which they
live. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (marriage for eligibility for social security benefits
based on law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same
for Family Medical Leave Act). Thus, even Plaintiffs, who are already married, cannot access
such federal protections as long as Louisiana refuses to recognize their existing marriage.
20.
The exclusion from marriage also harms same-sex couples and their families in less
tangible ways.
21.
Although the Plaintiffs are in long-term committed relationships, they and other same-sex
couples are denied the stabilizing effects of marriage, which helps keep couples together during
times of crisis or conflict.
22.
Excluding same-sex married couples from recognizing their marriages and preventing
same-sex couples from marrying also harms couples and their children by denying them the
social recognition that comes with marriage. Marriage has profound social significance both for
the couple that gets married and the family, friends and community that surround them. The
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FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
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terms "married" and "spouse" have universally understood meanings that command respect for a
couple's relationship and the commitment they have made.
23.
The exclusion from the esteemed institution of marriage also demeans and stigmatizes
lesbian and gay couples and their children by sending the message that they are less worthy and
valued than families headed by opposite-sex couples.

24.

The impact of the exclusion from marriage on same-sex couples and their families is
extensive and real. The denial of the right to marry causes these couples and their families to
suffer significant emotional, physical, and economic hardships.
25.
The plaintiffs recognize that marriage entails both benefits to and obligations on the
partners and welcomes both.
Excluding Same-Sex Couples from the Recognition and Benefits of Marriage Is Not
Rationally Related to a Legitimate Government Interest -
Let Alone Able to Withstand Heightened Scrutiny

26.
As the evidence will show, the prohibition against marriage for same-sex couples in
Louisiana is not closely tailored to serve an important government interest or substantially
related to an exceedingly persuasive justification. In fact, as the evidence also will show, the
prohibition fails any level of constitutional scrutiny. It is not even rationally related to any
legitimate justifications that were offered in support of it when the Constitution was amended in
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2004 or to any legitimate interest of the State that Defendants might now offer as a basis for
denying same-sex married couples recognition in Louisiana.
27.
The Supreme Court has made clear that the law cannot, directly or indirectly, give effect
to private biases and has expressly rejected moral disapproval of marriage for same-sex couples
as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op.,
at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only
marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
The State of Louisiana Is Not Entitled to Ignore the Constitution of the United States
by Amending its Constitution and Enacting Laws to Enshrine
Its Prejudices That Have No Legitimate State Interest

28.

As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 US 316:
This Government is acknowledged by all to be one of enumerated powers. The
principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it necessary
to urge; that principle is now universally admitted. But the question respecting the
extent of the powers actually granted is perpetually arising, and will probably
continue to arise so long as our system shall exist. In discussing these questions,
the conflicting powers of the General and State Governments must be brought
into view, and the supremacy of their respective laws, when they are in
opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might
expect it would be this -- that the Government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result
necessarily from its nature. It is the Government of all; its powers are delegated
by all; it represents all, and acts for all. Though any one State may be willing to
control its operations, no State is willing to allow others to control them. The
nation, on those subjects on which it can act, must necessarily bind its component
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parts. But this question is not left to mere reason; the people have, in express
terms, decided it by saying, [p406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of
the land," and by requiring that the members of the State legislatures and the
officers of the executive and judicial departments of the States shall take the oath
of fidelity to it. The Government of the United States, then, though limited in its
powers, is supreme, and its laws, when made in pursuance of the Constitution,
form the supreme law of the land, "anything in the Constitution or laws of any
State to the contrary notwithstanding."

CLAIMS FOR RELIEF
COUNT I:
Deprivation of the Fundamental Right to Marry in
Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

29.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
30.
The Fourteenth Amendment to the United States Constitution precludes any State from
"depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, 1. Governmental interference with a fundamental right may be sustained only
upon a showing that the legislation is closely tailored to serve an important governmental
interest.
31.
The Supreme Court has long recognized that marriage is a fundamental right and that
choices about marriage, like choices about other aspects of family, are a central part of the liberty
protected by the Due Process Clause.
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32.
Louisiana law denies the Plaintiffs and other individuals in same-sex marriages and
relationship this fundamental right by denying them access to the state-recognized institution of
marriage and refusing to recognize the marriages they entered into in other states and countries.
33.
The State can demonstrate no important interest to justify denying the Plaintiffs this
fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate
interest at all.
34.
The State's refusal to recognize marriages entered into by same-sex couples in other
jurisdictions, refusal to allow same-sex couples to marry, and prohibition for the courts and
officials of the State from doing so violates the Due Process Clause.
35.
The Defendants, acting under color of state law, are depriving Plaintiffs of rights secured
by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
COUNT II:
Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

36.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
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37.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV, 1.
38.
By denying the Plaintiffs and other lesbian and gay couples the ability to marry within
the State or to have their out-of-state marriages recognized, the State, through Defendants,
disadvantages lesbian and gay people on the basis of their sexual orientation. It denies them
significant legal protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all
persons with whom same-sex couples interact, including their own children," that their
relationship is "less worthy" than the relationships of others. Windsor, Slip Op., at 25.
39.

Same-sex couples and opposite-sex couples are similarly situated for purposes of
marriage.
40.
The evidence will show that classifications based on sexual orientation demand
heightened scrutiny.
41.
Lesbians and gay men are members of a discrete and insular minority that has suffered a
history of discrimination in the State and across the United States.

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42.
Sexual orientation bears no relation to an individual's ability to perform or contribute to
society.
43.
Sexual orientation is a core, defining trait that is so fundamental to one's identity that a
person may not legitimately be required to abandon it (even if that were possible) as a condition
of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to
change through intervention. Efforts to change a person's sexual orientation through
interventions by medical professionals have not been shown to be effective. No mainstream
mental health professional organization approves interventions that attempt to change sexual
orientation, and many including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the
public about these treatments.
44.
Prejudice against lesbians and gay men continues to seriously curtail the operation of the
political process preventing this group from obtaining redress through legislative means.
Lesbians and gay men lack statutory protection against discrimination in employment, public
accommodations, and housing at the federal level and in more than half of the states, including
Louisiana. Lesbians and gay men have far fewer civil rights protections at the state and federal
level than women and racial minorities had when sex and race classifications-were declared to be
suspect or quasi suspect.

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45.
For all these reasons, classification based on sexual orientation should be reviewed under
heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The
State's exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest. All it does it disparage and injure lesbian and gay couples and their
children.
46.
The State's prohibition of marriage for same-sex couples and its refusal to recognize the
marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
46.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III:
Discrimination on the Basis of Sex in
Violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
(42 U.S.C. 1983)

48.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
49.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal
protection of the laws. U.S. Const. amend. XIV, 1.
Case 2:13-cv-05090-MLCF-ALC Document 55-2 Filed 01/22/14 Page 15 of 20


FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
George et al
Page 16
50.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Article XII, Section 15 of the
Louisiana Constitution.
51.
By defining marriage in this way, the State discriminates on the basis of sex. The only
reason that the legal marriage is prohibited is the sex of the partners.
52.
The marriages of Plaintiffs, for example, are denied recognition solely because they are
both men and both women, respectively.
53.
The Supreme Court has made clear that perpetuation of traditional gender roles is not a
legitimate government interest.
54.
Given that there are no longer legal distinctions between the duties of husbands and
wives, there is no basis for the sex-based eligibility requirements for the recognition of a legal
marriage performed in another state.
55.
The Defendants can demonstrate no exceedingly persuasive justification for this
discrimination based on sex.

Case 2:13-cv-05090-MLCF-ALC Document 55-2 Filed 01/22/14 Page 16 of 20


FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
George et al
Page 17
56.
State law prohibiting marriage and recognition of marriage for same-sex couples thus
violates the Equal Protection Clause.
57.
Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
CLAIMS FOR RELIEF
COUNT IV:
Deprivation of the Full Faith and Credit Clause
of the United States Constitution

58.
Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as
though fully set forth herein.
59.
Article IV, Section 1 of the United States Constitution states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

60.
28 USC 1738 reads:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto.

Case 2:13-cv-05090-MLCF-ALC Document 55-2 Filed 01/22/14 Page 17 of 20


FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
George et al
Page 18
The records and judicial proceedings of any court of any such State, Territory or
Possession, or copies thereof, shall be proved or admitted in other courts within
the United States and its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with a certificate of a judge
of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated,
shall have the same full faith and credit in every court within the United States
and its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.

61.
State law defines marriage as ". . . the union of one man and one woman and No
official or court of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman. Article XII, Section 15 of the
Louisiana Constitution.
62.
By prohibiting the courts and officials of the State of Louisiana from recognizing
marriage contracted in another state, the State is violating the Full Faith and Credit Clause of the
United States Constitution.
63.
Plaintiffs herein have been denied requests to file as married couples filing jointly
pursuant to Louisiana Department of Revenue policy as stated in Internal Revenue Service
Revenue Ruling 2013-17, as shown in Revenue Information Bulletin No. 13- 024, dated
September 13, 2013 for Individual Income Tax, attached hereto as Exhibit A.

Case 2:13-cv-05090-MLCF-ALC Document 55-2 Filed 01/22/14 Page 18 of 20


FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
George et al
Page 19
64.
Plaintiffs Nadine Blanchard and Courtney Blanchard have been denied requests to file for
joint adoptions of their son, CB, although Courtney Blanchard is the biological mother and
Nadine Blanchard is the birth mother, because they are a same sex married couple by the
Louisiana Department of Health and Hospitals.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution;
2. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution;
3. Enter a declaratory judgment that Article XII, Section 18 of the Louisiana Constitution
and Louisiana Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of
the United States Constitution.
4. Enter a permanent injunction enjoining Defendants from denying the Plaintiffs and all
other same-sex couples the benefits of marriage and to recognize marriages validly
entered into by the Plaintiff and his Husband and other same-sex couples outside of the
State of Louisiana;
5. Enter all further relief to which Plaintiffs may be justly entitled.

Case 2:13-cv-05090-MLCF-ALC Document 55-2 Filed 01/22/14 Page 19 of 20


FIRST AMENDED COMPLAINT FOR DELARATORY AND INJUNCTIVE RELIE - Robicheaux et al v.
George et al
Page 20
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
(888) 502-3935 (office fax)
Scott@SpiveyESQ.com
Attorney for Plaintiffs, Jon Robicheaux,
Derek Penton, Courtney Blanchard and
Nadine Blanchard


Case 2:13-cv-05090-MLCF-ALC Document 55-2 Filed 01/22/14 Page 20 of 20




UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w Civil Action No. 14-CV-00097


ORDER TO FILE AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioners, Jonathan P. Robicheaux,
Derek Penton, Nadine Blanchard and Courtney Blanchard be and are hereby granted leave to file
the First Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of January,
2014.

_______________________________
JUDGE


Denied for failure to show
the jurisdiction of this
Court. The consolidated
case is with the lead
case, which is on appeal
to the 5th Circuit.
Hello This is a Test
2/15/05
1/23/14
Case 2:13-cv-05090-MLCF-ALC Document 57 Filed 01/23/14 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w
Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez

MOTION TO UNCONSOLIDATE

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD and COURTNEY
BLANCHARD, and move this Honorable Court to unconsolidate civil actions 2013-cv-05090
and 2014-cv-00097 for the reasons set forth in the attached memorandum in support.
WHEREFORE, petitioner prays that after consideration, this Honorable Court will
unconsolidated civil actions 2013-cv-05090 and 2014-cv-00097, while keeping civil action
2014-cv-00097 as the master docket for filing purposes.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs, Jon Robicheaux, Derek
Penton, Nadine Blanchard and Courtney Blanchard

Case 2:13-cv-05090-MLCF-ALC Document 58 Filed 01/23/14 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w
Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez

ORDER

Considering the foregoing motion and finding that the relief prayed for is authorized
within the discretion of the Court and finding that it is in the best interest of justice,
IT IS HEREBY ORDERED that Civil Action 2013-cv-05090 shall continue to be the
Master File in these proceedings.
IT IS FURTHER ORDERED that Civil Action 2014-cv-00097 be and is hereby
unconsolidated from 2013-cv-05090 to allow the plaintiffs in 2014-cv-00097 to proceed while
2013-cv-05090 is on appeal before the Fifth Circuit Court of Appeal.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of January, 2014.


_______________________________
JUDGE



Robicheaux v. Caldwell
Page 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w
Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez

MEMORANDUM IN SUPPORT OF
MOTION TO UNCONSOLIDATE

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiffs Motion to Unconsolidate.
A Complaint was filed January 14, 2014 and after the Attorney General, James Caldwell,
was dismissed in the lead case and was assigned docket number 2014-cv-00097. On January 17,
2014, 2014-cv-00097 was consolidated by Order of the Court with the lead case, 2013-cv-05090.
The consolidation order was reportedly prepared by the Clerk of Court for management of the
lawsuits that are related to the lead matter, 2013-cv-05090. Although, your Honor Ordered that
2013-cv-05090 shall serve as the master file for these proceedings, when your movants sought to
amend their complaint within the twenty-one days allowed by the Federal Rules of Civil
Procedure, your Honor denied the motion on January 23, 2014 because in the words of the
Case 2:13-cv-05090-MLCF-ALC Document 58-2 Filed 01/23/14 Page 1 of 2


Robicheaux v. Caldwell
Page 3
Orders notes, Denied for failure to show the jurisdiction of this Court. The consolidated case is
with the lead case, which is on appeal to the 5th Circuit.
Naturally, the Court has vast discretion in the management of all cases. Based upon the
facts before the court and the allegations alleged in the complaints, it is respectfully submitted
that there is no need to consolidate the two cases, resulting in the stay of the second proceeding,
when the first proceeding is being appealed solely on the issue of sovereign immunity on the
dismissal of the Louisiana Attorney General, whereas the second proceeding seeks to secure
declaratory and injunctive relief against the Louisiana Secretary of Revenue, the Louisiana
Secretary of Health and Hospitals and the State Registrar. Whether the Court of Appeal upholds
or reverses your Honor on the dismissal of the Attorney General will have no effect on whether
the plaintiffs are entitled to proceed against the aforementioned defendants. These defendants
have yet to be served or waive service and are in no way proper parties to the 2014-cv-00097
action.
CONCLUSION

Based upon the foregoing, it is respectfully prayed that this Honorable Court
unconsolidated Civil Action 2014-cv-00097 and 2013-cv-05090 to allow your movants, the
plaintiffs to proceed in their complaint against the Louisiana Secretary of Revenue, the Louisiana
Secretary of Health and Hospitals and the State Registrar.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Case 2:13-cv-05090-MLCF-ALC Document 58-2 Filed 01/23/14 Page 2 of 2
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w
Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez

ORDER

Considering the foregoing motion and finding that the relief prayed for is authorized
within the discretion of the Court and finding that it is in the best interest of justice,
IT IS HEREBY ORDERED that Civil Action 2013-cv-05090 shall continue to be the
Master File in these proceedings.
IT IS FURTHER ORDERED that Civil Action 2014-cv-00097 be and is hereby
unconsolidated from 2013-cv-05090 to allow the plaintiffs in 2014-cv-00097 to proceed while
2013-cv-05090 is on appeal before the Fifth Circuit Court of Appeal.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of January, 2014.


_______________________________
JUDGE

Both cases are
obviously related.
Hello This is a Test
2/15/05
1/27/14
Case 2:13-cv-05090-MLCF-ALC Document 60 Filed 01/27/14 Page 1 of 1
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w

Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


SECOND MOTION FOR LEAVE
TO AMEND COMPLAINT TO ADD PLAINTIFFS

NOW INTO COURT, through undersigned counsel, comes JONATHAN P.
ROBICHEAUX, DEREK PENTON, NADINE BLANCHARD and COURTNEY
BLANCHARD, and in light of the dismissal of the appeal in the consolidated case, move this
Honorable Court for leave to amend the complaint in Robicheaux at al v. George et al, 14-cv-
00097, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to add Robert Welles and
Garth Beauregard as plaintiffs and to add the cause of action to allow Robert Welles and Garth
Beauregard to be issued a license to marry in Louisiana. Rule 15(a) provides that leave to amend
should be freely given when justice so requires. For the reasons set forth in greater detail in
the attached supporting memorandum, it is respectfully submitted that adding these parties as
plaintiffs is in the best interest of justice and judicial economy.
Case 2:13-cv-05090-MLCF-ALC Document 61 Filed 02/05/14 Page 1 of 3


Robicheaux v. Caldwell
Page 2
WHEREFORE, petitioner prays that after all due proceedings had, he be granted leave to
file the attached Amended Complaint.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs, Jon Robicheaux, Derek
Penton, Nadine Blanchard and Courtney Blanchard

Case 2:13-cv-05090-MLCF-ALC Document 61 Filed 02/05/14 Page 2 of 3


Robicheaux v. Caldwell
Page 3

Case 2:13-cv-05090-MLCF-ALC Document 61 Filed 02/05/14 Page 3 of 3

UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w

Civil Action No. 14-cv-00097

District Judge: Martin Leach-Cross Feldman

Magistrate Judge: Alma L. Chasez


MEMORANDUM IN SUPPORT OF SECOND
MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD PLAINTIFFS

MAY IT PLEASE THE COURT:

This matter comes on for cause on Plaintiffs Motion for Leave to File Amended
Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
The Complaint was filed January 14, 2014 and after the Attorney General, James
Caldwell, was dismissed in the lead case. The parties filed a Notice of Appeal on January 16,
2014. On January 17, 2014, the subsequent complaint, the basis of this motion, was consolidated
by Order of the Court with the lead case. Letters have been sent to the defendants requesting
waiver of service. No responses have been received. No answers or other responsive pleadings
have been filed by the defendants. On February 5, 2014, the Court of Appeal granted the
plaintiffs/appellants motion to dismiss appeal pursuant to Federal Rules of Civil Procedure rule
42.
Case 2:13-cv-05090-MLCF-ALC Document 61-1 Filed 02/05/14 Page 1 of 3


Robicheaux v. Caldwell
Page 2
SUMMARY OF LAW
Rule 15 of the Federal Rules of Civil Procedure is the rule regarding Amended and
Supplemental Pleadings. It reads in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to
an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.

Unless there is a substantial reason to deny leave to amend, the discretion of the district
court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th
Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist.,
28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading
U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so
requires," Fed. R. Civ. P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack
Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider
Case 2:13-cv-05090-MLCF-ALC Document 61-1 Filed 02/05/14 Page 2 of 3


Robicheaux v. Caldwell
Page 3
include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and
futility of amendment." Id.
PERTINENT FACTS
The parties remain within the twenty-one day time period under Rule 15(a)(1)(A) of the
Federal Rules of Civil Procedure.

CONCLUSION

Based upon the foregoing, it is respectfully prayed that this Honorable Court allow the
parties to amend the complaint with the submitted First Amended Complaint to the Complaint
filed on January 14, 2014.
Respectfully submitted:



SCOTT J. SPIVEY (#25257)
815 Dauphine St, Ste D
New Orleans, LA 70116
(504) 684-4904 (office phone)
Attorney for Plaintiffs, Jon Robicheaux, Derek
Penton, Nadine Blanchard and Courtney Blanchard
Case 2:13-cv-05090-MLCF-ALC Document 61-1 Filed 02/05/14 Page 3 of 3
UNITED STATES DISTRICT COURT
for the

Eastern District of Louisiana
Jonathan P. Robicheaux
Plaintiff/Petitioner
v. Civil Action No. 13-CV-05090

James D. Caldwell in his official capacity as the Louisiana Attorney General
Defendant/Respondent

c/w Civil Action No. 14-CV-00097


ORDER TO FILE AMENDED COMPLAINT

Considering the foregoing motion and finding that the verified application demonstrates
that the Movant is entitled to the relief sought and finding that the relief sought is authorized
under the law and in the best interest of justice,
IT IS HEREBY ORDERED that the Movant/Petitioners, Jonathan P. Robicheaux,
Derek Penton, Nadine Blanchard and Courtney Blanchard be and are hereby granted leave to file
the First Amended Complaint for Declaratory and Injunctive Relief.
Thus read, done and signed in New Orleans, Louisiana on this ____ day of February,
2014.

_______________________________
JUDGE

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