STATE AND FEDERAL LEGAL ISSUES:
Executive Orders, Proposed Legislation, Legal Cases, U.S. Supreme Court Cases
Louisiana Executive Orders
(Compiled by Sanika Nanda)
La. Exec. Order No. EWE 92-7 (1992)
Prohibits discrimination on the basis of sexual orientation in state employment, contracts, and governmental services. This executive order was issued by then-Governor Edwin Edwards in 1992. This order only protected public employees. This order lapsed in 1996 when a new governor took office by Governor Murphy J. Foster.
La. Exec. Order No. KBB 2004-54 (2004)
The previous order banning discrimination in state employment based on sexual orientation is reissued by Governor Kathleen Blanco in 2004. This executive order went further than the one issued by Edwards, as it also ordered non-discrimination policies to be enacted by business who were in contracts with the state, rather than only affecting public employees in the state of Louisiana. This order lapsed once again in 2008, when Governor Bobby Jindal was in office and did not renew it.
Executive Order No. JBE 2016-11 (2016)
On April 3, 2016 Governor John Bel Edwards issued an executive order which banned discrimination of LGBT employees by companies who were contracted with the state. The Louisiana Supreme Court refused to hear Edwards’ appeal to maintain this order with a vote of 5-2 after trial and appellate courts stated that Edwards had overstepped his bounds as governor in issuing this executive order, as the Legislature had not intended to create policies for protection based upon “gender identity” yet. This executive order was struck down in 2018.
Proposed Legislation in Louisiana (Not Passed)
(Compiled by Sanika Nanda)
H. B. 443 (2008)
Representative LaFonta introduced this bill into the State Legislature, and if passed it would have prohibited employment discrimination based on real or perceived sexual orientation, gender identity, and gender expression in hiring and of employees. This bill, being introduced in March, was sent to committee in May but Representative LaFonta chose to pull the bill from being considered.
H. B 981 (2008)
HB 981 would have prohibited the state and the officers of agencies of the state to discriminate or harass people based upon race, gender, color, religion, sex, disability, national origin, political affiliation as well as sexual orientation. This bill then also amended the definition of “sexual orientation” in order to include heterosexuality, bisexuality, and homosexuality. It was also proposed by State Representative LaFonta. This bill did not make it past the Committee on House and Governmental Affairs.
Senate Bill 332 (2016)
This bill would have protected LGBT Louisianans through statewide non-discrimination statutes. This bill only made it onto the Senate floor, and as of April 2019 no statewide protections exist for LGBT people in the state of Louisiana.
Senate Bill 98
Gender Neutral Language in Marriage and Parenting Laws
This law would have changed terms such as “husband” and “wife” to spouse when used in marriage and parental laws in Louisiana, suggested after Obergefell v. Hodges was decided and same-sex marriage was legalized nationwide. This legislation had further implications for transgender rights as well, by taking gender out of the equation, as other terms such as “grandmother” and “grandfather” would have been “grandparent.” The bill, suggested by Senator J.P. Morell of New Orleans, the Senate Judiciary A Committee rejected the bill in a 4-1 vote.
Senate Bill 228
Senator Morrell proposed legislation to prohibit discrimination against students based on sexual orientation and identity in schools which receive state funding. Students would also not be prohibited from attending any such school which receives state funds due to national origin, race or disability, including public schools. Morrell pulled this bill the day before the Louisiana Supreme Court announced that they declined to consider a case that may have allowed Governor Edwards to ban discrimination against LGBT people who work for the state government.
S. B. 862 (2001)
Don Cravins and Paulette Irons, State Senators of Louisiana, introduced this bill in 2001. This bill would have provided employment protections for gays and lesbians and stated specifically that employers with 25 or more employees would not be able to discriminate against any employees based upon their perceived or actual sexual orientation. S. B 862 was successful in making it out of committee, but it was killed on the Senate floor.
Louisiana Legal Cases
(Compiled by Sanika Nanda)
Holt v. Rapides Parish School Board (1996)
A tenured female teacher, and coach for women’s sports, at Oak Hill High School was fired upon suspicion of being a lesbian. Holt was suspected of having an inappropriate relationship with a student who in reality was related to her, as Holt was cousins with this girl’s father. With a 5-4 vote, Holt was fired and proceeded to file suit. The trial and appeal courts both decided the case in her favor, saying that the school board was arbitrary in dismissing Holt from her position.
EEOC v. Boh Bros. Construction Co. (2014)
Sex discrimination / same-sex harassment case. A superintendent, Chuck Wolfe, was charged with harassment of Kerry Woods, including sexual taunts and exposing himself to Woods. During the trial, Wolfe admitted to harassing Woods because he thought he was “feminine” and was not conforming to Wolfe’s stereotype of “rough iron workers.” The construction company was charged with creating a hostile work environment which is constituted illegal sex discrimination according to the Civil Rights Act of 1964, specifically Title VII.
Forum for Equality Louisiana v. Barfield (2015)
In 2014, four same-sex married couples filed a lawsuit against the State of Louisiana seeking to have found that Louisiana laws that don’t recognize same-sex marriage are unconstitutional. This was based upon the “Louisiana Anti-Recognition Laws” which do not allow Louisiana to recognize the marriage and rights of same-sex couples who were legally married in another state. The suit was brought citing that the LAR Laws violate the Due Process and Equal Protection clauses as well as the freedom speech. The Court used the precedent of Obergefell v. Hodges (as this case was still on the docket when Obergefell had been decided) to decide Louisiana had to recognize same-sex marriages as legal and valid, and respect the legal implications of a marriage, reversing the lower court’s decision
Robicheaux v. Caldwell (2015)
The plaintiff was a Louisiana resident who married his husband legally in the state of Iowa. He went on to sue the state of Louisiana, stating that the laws that deny the recognition of his legal out-of-state marriage were unconstitutional and in violation of his civil liberties. The plaintiff claimed these laws, by not recognizing legal marriages, violated the Full Faith and Credit Clause of the Constitution. This case was settled and closed after the decision from Obergefell v. Hodges was decided by the US Supreme Court.
Costanza v. Caldwell (2015) Louisiana Supreme Court
Costanza and Brewer were a same sex couple who had gotten married in California and sought to have their marriage recognized in Louisiana. The case originated when the couple sought to have the son of one plaintiff be able to be legally be adopted by the other. The case was originally dismissed, then appealed to the 15th Judicial District Court, and when the case was decided in favor of Costanza, it was appealed by the state of Louisiana to the Louisiana Supreme Court. This case concludes that, by using the precedent of Obergefell v. Hodges, Louisiana can no longer legally ban same-sex couples from getting married, as these bans effectively violate the 14th Amendment.
Louisiana Birth Certificate Gender Marker Law
In order to change the gender marker on a birth certificate, a court order that certifies gender change must be presented. “The court shall require such proof as it deems necessary to be convinced that the petitioner was properly diagnosed as a transsexual or pseudo-hermaphrodite, that sex reassignment or corrective surgery has been properly performed upon the petitioner, and that as a result of such surgery and subsequent medical treatment the anatomical structure of the sex of the petitioner has been changed to a sex other than that which is stated on the original birth certificate of the petitioner." This court order must be approved, and a copy should be sent to the state registrar of New Orleans, and there is a ten day time cap to do this. Then, a new birth certificate will be issued.
U.S. Supreme Court Cases
(Compiled by Sanika Nanda)
Bowers v. Hardwick
478 U. S. 186 (1986) Oyez, 20 Mar. 2019, www.oyez.org/cases/1985/85-140.
Michael Hardwick was charged with violating a Georgia law that made sodomy illegal, when he was seen engaging in homosexual acts in his house by a police officer. In a 5-4 decision, the Court decided there was no constitutional right for homosexuals to engage in sodomy, thus affirming that state’s anti-sodomy laws were legal. Justice Byron White feared ruling in favor of Hardwick would be the judiciary making law, as sodomy was not an “implicit right” and not “rooted in the history” of the US. Thus, states were in their right to make anti-sodomy laws.
Boy Scouts of America v. Dale
530 U. S. 640 (2000) Oyez, 10 Mar. 2019, www.oyez.org/cases/1999/99-699.
The premise of the case was Eagle Scout and assistant scoutmaster James Dale’s adult membership of the Boy Scouts was revoked when it was found out that Dale was homosexual and advocated for gay rights. Filing charges, Dale claimed Boy Scouts violated a NJ statute prohibiting discrimination; the Boy Scouts were not-for-profit and claimed, “homosexual conduct was inconsistent with the values it was attempting to instill in young people.” The case was decided 5-4 in favor of the Boy Scouts, saying that requiring the Boy Scouts to let Dale into the organization violates the Boy Scouts’ freedom of expressive association rights (First Amendment rights). As the Boy Scouts were asserting that homosexuality was not consistent with the values they were attempting to instill, a gay troop leader would demonstrate their acceptance of “homosexual conduct as a legitimate form of behavior.”
Lawrence v. Texas
539 U. S. 558 (2003). Oyez, www.oyez.org/cases/2002/02-102. Accessed 26 Apr. 2019.
Houston police entered the residence of John Lawrence after having reports of a “weapons disturbance” in the area. The police saw Lawrence engaged in sexual acts with another adult man, and the two were arrested in violation of a Texas law banning sexual acts between two people of the same sex. The Court decided that this Texas law violated the Due Process Clause, as these two men were adults and had to right to engage in sexual conduct in the privacy of their home, without government intervention. The case was decided in a 6-3 decision.
United States v. Windsor
570 U. S. 744 (2013) Oyez, 10 Mar. 2019, www.oyez.org/cases/2012/12-307.
Focused on in the case was the Defense of Marriage Act (DOMA) which was passed in 1966. DOMA stated that in terms of federal law, the term “marriage” and “spouse” would refer exclusively to unions between one man and one woman. Edith Windsor was the widow of The Spyer, and Windsor was the sole executor of her will. The couple married in Canada, and upon moving to New York, their marriage was recognized by the state of New York. In her will, Spyer left her estate to Windsor, but since their marriage was not recognized federally, Windsor was ordered to pay $363,000 to the government in taxes, and there was no marital exception since their marriage was not recognized. The decision was made 5-4 in favor of Windsor. Writing the majority opinion, Kennedy stated that states have the right to define marital relationships, and that the goal of DOMA was to impose a stigma and create a separate status for people in same-sex marriages, and thus was unconstitutional. In a dissent, Roberts wrote that the court lacked the jurisdiction to even review the case as it should be a state matter and the court was overstepping.
Obergefell v. Hodges
576 U. S. ___ (2015).
A married couple from Maryland, both males, sued the state of Ohio in July 2013 for not recognizing their marriage, which they claimed was unconstitutional under the First and the Fourteenth Amendments. One plaintiff, John Arthur, had ALS and was going to pass soon, and the couple sought to have Ohio recognize their marriage on Arthur’s death certificate. Arthur passed in October 2013. In 2015, the Supreme Court reversed previous decisions and stated that the right to marriage was a fundamental right that should not be denied to same-sex couples, thus stating that the 14th Amendment does not give states the ability to ban same-sex marriage.
Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission
584 U. S. ___ (2018) Oyez, 21 Mar. 2019, www.oyez.org/cases/2017/16-111.
The decision was 7-1 in favor of Masterpiece Cakeshop. The case originated in 2012 when a couple, Charlie Craig and David Mullins, asked the owner of Masterpiece Cakeshop to create a cake for their wedding. This occurred in Lakewood, Colorado. Phillips believed that the act of decorating cakes was a way to honor God through art, and in Phillips’ view, creating a cake for a same-ex couple would be displeasing to God. Charges of discrimination based on sexual orientation were filed by Mullins and Craig, following the Colorado Anti-Discrimination Act. The Colorado Civil Rights Commission affirmed a ruling made in favor of Mullins and Craig. Once taken to the Supreme Court on appeal, the Court decided that the “religious and philosophical objections to same-sex marriage” are protected and are protected forms of expression. The Colorado law that was being looked at was only to be applied in a neutral manner in terms of religion, and since decorating and creating cakes was seen as artistic expression and a part of Phillips’ religious beliefs he had the right to decline the request. The Commission was accused of showing hostility with regard to Phillips’ religious beliefs which went against the “neutral treatment” implied in the law. Ginsburg and Sotomayor wrote a dissenting opinion.