When attorneys for same-sex couples from Louisiana, Texas and Mississippi argued their case before the U.S. 5th Circuit Court of Appeals on Jan. 9, they focused national attention on the issue of same-sex marriage in the Deep South. Ultimately, legal observers predicted, the issue would have to be settled by the U.S. Supreme Court — in fact, plaintiffs as well as states' attorneys in the local cases had asked the high court to take up the matter directly.
On Jan. 12, the Supreme Court rejected their request. But on Jan. 16, the high court announced it would take up four other pending same-sex marriage cases in April and issue a ruling by summer — deciding once and for all whether states can write same-sex marriage bans into their constitutions by a vote of the people, as Louisiana did in 2004.
The Supreme Court still will not be hearing the local plaintiffs' case. Instead, the court will consolidate and consider four cases from Kentucky, Michigan, Ohio and Tennessee, where bans on same-sex marriage were upheld by the U.S. 6th Circuit Court of Appeals. But if the Supreme Court rules such bans are indeed unconstitutional, the ruling would affect every state in the country.
Today, same-sex marriage is legal in 36 states and the District of Columbia. Besides Louisiana, Texas and Mississippi, states where it's not legal include Alabama, Arkansas, Georgia, Kentucky, Michigan, Nebraska, North Dakota, Ohio, South Dakota and Tennessee.
The scoreboard changes almost daily. Just a few days before the 5th Circuit hearing, federal courts cleared the way for same-sex nuptials in Florida, making it the only state in the Deep South where gay marriage is legal. On Jan. 12, a federal judge in South Dakota struck down that state's ban, but that order was stayed pending appeal.
In September 2014, U.S. District Judge Martin Feldman upheld Louisiana's constitutional ban on same-sex marriage in the case of Robicheaux v. Caldwell. In that case, six Louisiana couples and the Forum For Equality challenged the constitutional ban. It was the first major legal setback for same-sex marriage proponents after a string of legal victories in other states.
That ruling set the stage for this month's appellate arguments at the 5th Circuit, which gave no timetable for a decision.
For some, it can't come quickly enough.
Standing outside the massive appellate court building on Camp Street on the day of the hearing, Helen Barnes posed for photographs with a T-shirt reading "Str8 Mom for Marriage Equality." Barnes, who lives in Mississippi, held a sign that she also brought to same-sex marriage rallies in Washington, D.C., in 2009 and 2013. Her son made the sign when he was 14 years old. He is now 20.
Barnes was among dozens of supporters filling courtrooms and huddling outside in 40-degree weather as the federal appeals court heard oral arguments on behalf of same-sex couples from Louisiana, Mississippi and Texas against those states' laws banning gay marriage. Crowds lined up before 7 a.m. hoping to get a seat to hear the arguments in front of the three-judge panel. The appellate judges assigned to the case are Jerry E. Smith and Patrick Higginbotham (both appointed by President Ronald Reagan) and James Graves (appointed by President Barack Obama).
At a press conference outside the courthouse, attorneys for same-sex marriage advocates in all three states expressed confidence in a "just" decision and praised the judges' questions.
"They expressed significant discomfort with this discrimination," said Camilla Taylor of Lambda Legal, who had presented a rebuttal to Kyle Duncan of the Louisiana Attorney General's office. Duncan had told the court that same-sex unions would be a "brand new perspective" on marriage in the history of the institution. Throughout history, Duncan said, marriage has been considered a normal part of the procreation process, and the state has an interest in promoting strong families.
Gene Mills, president of the Louisiana Family Forum, stood nearby, applauding Attorney General Buddy Caldwell's team for "a masterful job defending Louisiana's rationale for defining marriage as a legal relationship between one man and one woman." He acknowledged that the purpose of marriage is more complex than to facilitate procreation, but the history of the institution has confined it to heterosexual relationships. "I think it's a valid question," Mills told Gambit. "I don't believe that the issue will be finally decided by a three-judge panel in the 5th Circuit."
"It is virtually unprecedented to have so many federal courts considering the same issue at the same time," Steven Hartmann, a spokesman for the Attorney General's office, told Gambit before the Supreme Court announced its decision. "If the 5th Circuit rules against Louisiana, which is by no means certain, Attorney General Caldwell is committed to pursuing the best option at the time to safeguard the right of Louisiana citizens to determine for themselves this profound and important policy issue. If the 5th Circuit rules for Louisiana, then the plaintiffs will have the same options."
Mills alluded to Feldman's recent decision upholding Louisiana's ban on same-sex marriage. Among other points, Feldman said the democratic process is a legitimate way of allowing states to make their own decisions about marriage. Louisiana's constitutional amendment banning gay marriage was approved by voters in a statewide referendum after lawmakers overwhelmingly opted to put it on the ballot in 2004. In several other states, however, federal courts have overturned voter-approved constitutional bans against gay marriage.
"We asked the 5th Circuit in the state of Louisiana to recognize the dignity and respect and equality of our marriage, and the marriage of all same-sex couples in Louisiana, Texas and Mississippi," said Louisiana resident L. Havard Scott III, who has been with his partner Sergio March Prieto for 18 years. "If we don't get what we're seeking here, we'll get it from the U.S. Supreme Court. ... We simply love our partners, and we want our love to be respected to the same extent other peoples' marriages are respected, and we see no reason why the state of Louisiana can't respect our marriage like it does the marriages of other people."
Outside the courthouse, Jennifer Pierce proposed — again — to her wife Jena. The Biloxi, Mississippi, residents were married in Connecticut in 2013 but their marriage isn't recognized in their home state. Following a press conference, Pierce proposed (for a third time). "Third time's a charm," she said.
Evan Wolfson, founder and president of the New York-based advocacy group Freedom to Marry, told Gambit he was hopeful the 5th Circuit will find in favor of the plaintiffs. Wolfson called Judge Feldman's decision "way out of step with where virtually every other court has gone, having reviewed the Constitution. The language of the ruling was dismissive and hostile and the reasoning was thin and unconvincing."
In a statement issued by his office after the hearing, Caldwell cited states' rights as an underpinning of his argument that the ban is indeed constitutional. "As Louisiana's attorney general," Caldwell wrote, "I will do everything in my power to uphold the will of our citizens and the right of states to manage their own affairs."
"Part of the reason we have a Constitution, and part of the reason we have courts is that politicians sometimes get it wrong," Wolfson countered. "They're sometimes willing to demagogue or pander or play to a base that may not respect the constitutional guarantees that protect all of us. Fortunately, the Constitution is there to protect all of us, and the courts are there to enforce that constitutional protection for everybody."
After the Supreme Court announcement, Wolfson said, "We will keep working hard to underscore the urgency of the Supreme Court's bringing the country to national resolution, so that by June, all Americans share in the freedom to marry and our country stands on the right side of history."
Jon Robicheaux and Derek Penton-Robi-cheaux were married in Iowa on Sept. 23, 2012. The couple had been together five years before tying the knot. The Louisiana couple has spent their honeymoon years fighting for recognition of their marriage in their home state.
In 2013, one month after the U.S. Supreme Court overturned the Defense of Marriage Act, the couple filed a suit — Robicheaux v. Caldwell — against the state of Louisiana demanding to have their marriage recognized. The case was one of the first nationwide to target a state law. The name "Robicheaux" has become synonymous with the ongoing legal battle to overturn Louisiana's same-sex marriage ban.
"We got to thinking, 'We don't really have any of the legal protections of being married.' There are some federal things that apply to us now, but it goes way beyond that," Penton-Robicheaux says. "Tons and tons of state laws, tax laws and things that don't apply to us. We started on the journey to have that recognized not only for us but also for the countless same-sex couples who are married or want to get married in Louisiana."
"A billion dollars a year is what we're leaving on the table with the gay and lesbian community. And they want to get married here. Let them." — The Rev. Tony Talavera, officiant at the French Quarter Wedding Chapel
Later that year, Feldman dismissed their lawsuit. In February 2014, the couple joined a separate suit with five other Louisiana couples and the Forum for Equality. (Three of the couples in the case also are the parents of young children.) Though Feldman upheld Louisiana's ban, Penton-Robicheaux says he is optimistic the appellate panel will rule in their favor.
Stephen Griffin, a constitutional law professor at Tulane Law School, says the judges' questions to the state's attorneys should give hope to the plaintiffs.
"If you assumed they're approaching things with an open mind, I think they would be impressed by the federal circuits that already have ruled in favor of the plaintiffs — only the 6th District ruled against," Griffin says. "The judges know the score."
"We were almost uninterrupted with our presentation of our side of the case," Penton-Robicheaux told Gambit, nearly a week after the hearing but before the Supreme Court announcement. "You never know how the judges are going to rule, but it gives you a little bit of a ray of hope if it falls consistently with what happened with the other Circuit Courts. In those decisions, skeptical questions tend to be the way they rule. I'm not saying they're going to rule in our favor, but it gives us a little hope."
Penton-Robicheaux says the couple anticipated spending five years trying to overturn Louisiana's ban. In just two years, he says, their fight and similar suits nationwide have moved much farther than they expected.
"Knowing your state excludes you based on ... its moral beliefs about your relationship, to know that you are equal and inequalities shouldn't be in place, you step back and look at your life against everyone else's," he says. "The fight is a fire that is lit inside of you. If you haven't been on that side of it, you fundamentally don't understand. You fight for things that are yours, and for things you know are right and true. You stay with the course as long as it takes. It gets very frustrating. You do the best you can, and you know you're in it for the long haul."
The Rev. Tony Talavera has officiated more than 12,000 marriages at the French Quarter Wedding Chapel on Burgundy Street. Within the last few years, he also officiated 150 same-sex unions.
"A billion dollars a year is what we're leaving on the table with the gay and lesbian community. And they want to get married here. Let them," Talavera says. "We have a big population here already. People love our city. Why are we sticking our heads in the mud when all people want to do is have equal rights?"
Not quite a billion dollars — but not chump change, either. According to New York City tourism organization NYC & Company, the economic impact last year of legalizing gay marriage in that state was $259.5 million, plus $16.5 million in tax revenue.
Mark Romig, CEO of the New Orleans Tourism and Marketing Campaign (NOTMC), points out that New Orleans is not New York, but says, "We want to be there.
"We think it's the right thing to do, as well," Romig adds.
In 2003, Louisiana enacted a "quickie weddings" law, removing a 72-hour residency requirement for out-of-state couples looking to get hitched in Louisiana. The state and tourism groups haven't figured out how to market New Orleans as a wedding destination, Talavera says, as couples still must navigate the appropriate paperwork.
"Weddings aren't tourism and they're not conventions," Talavera says. "Couples come here for romance, for a wedding. They are not here, normally speaking, on a honeymoon. They're here to get married." If the court overturns Louisiana's ban, Talavera anticipates more same-sex couples getting married in New Orleans — if, he says, the state and tourism boards learn how to attract those couples to New Orleans.
Romig points out that with celebrations such as Gay Pride in June and Southern Decadence over Labor Day weekend, New Orleans has long been a friendly and welcoming place for LGBT tourists. But, he says, "We had to be careful in what we were promising the visitor. So we couldn't do what other states have done, and that is to say: 'Come and celebrate your marriage here in Louisiana' and have it approved and so forth. We could take advantage of people wanting to take their honeymoons or celebrate their marriage. We just weren't able to offer the complete package."
Romig adds that New Orleans in particular "needed to keep up with a lot of other destinations that are way ahead of us on this."
City Council President Stacy Head noted the city of New Orleans already extends its employment benefits to same-sex domestic partners.
"If the courts force the state to go further, I think that's a good thing," Head told Gambit. She said New Orleans will clearly welcome same-sex partners from elsewhere who come here to wed, and she expects it to be a "desirable" destination for them. "As far as being open to all different kinds of couples," Head said, "certainly New Orleans is, and that's part of the beauty of this place."
In the past few months, Romig and his team have fleshed out an LGBT section of the official NOTMC website, www.neworleansonline.com. They've also created targeted ads for the site's visitors who identify themselves as LGBT.
In the event that same-sex marriage becomes legal in Louisiana, Romig says, his team has been brainstorming a tourism campaign specifically focused on couples and romance, and a potential wedding sweepstakes later in the year, using cities like Ft. Lauderdale, Las Vegas and New York City as examples of best practices.
Earlier this month, Florida became the first Deep South state to legalize same-sex marriages, and Richard Gray, director of LGBT strategizing for the Greater Fort Lauderdale Convention and Visitors Bureau, is expecting the city's number of visitors to increase exponentially — in some ways, because Fort Lauderdale, like New Orleans, is a liberal outpost in a conservative state.
"We're progressive," Gray said. "The state has not been progressive. But Broward County, where Fort Lauderdale is, without a doubt, one of the most progressive counties in the state of Florida."
Fort Lauderdale is the only city in the country with a designated department within its tourism board for LGBT tourism, according to Gray. The city launched it in 1996 and progressed in baby steps. In 1996, the department didn't use the word "gay" to describe same-sex visitors — it used the term "rainbow" — and had a budget of $35,000. Today its budget is $1.5 million, and it has an entire landing page on its website devoted to transgender visitors (that campaign is called "Where Happy Meets Go Lucky").
Gray started strategizing a marriage equality campaign nine months ago, so once the decision was announced, he was able to begin advertising Fort Lauderdale as a wedding destination for all couples. He organized a contest couples could enter to get married on the beach, in addition to holding a photo shoot for the tourism website's new LGBT-friendly images. The board also is holding a mass wedding in February, marrying 100 couples in a sunrise ceremony on Greater Fort Lauderdale Beach.
But wedding packages and financial benefits are just one part of the story. For Wolfson, marriage equality is part of a larger narrative, one that squashes long-held stereotypes and beliefs about gay people and brings same-sex couples into the framework of American families. It opens up a conversation, he says, "about who gay people really are and the love and commitment these couples have ... and the fact that they're living in Louisiana and they're raising kids and they're worrying about their aging parents and they're fighting over who takes out the garbage.
"All of those dawning realities and greater understood truths are helping reduce prejudice and are helping people be more supportive of including gay people as part of the American picture."
"It looks to me like we will have marriage equality in June," Forum For Equality Louisiana spokesman John Hill told Gambit. "It's hard to see the tea leaves any other way."
Acceptance and legalization of same-sex marriage in America has occurred with astonishing speed ever since 2004, when Massachusetts became the first state to issue marriage licenses to same-sex couples. Today, 70 percent of Americans live in areas where same-sex marriage is the law of the land.
This summer, we're likely to find out whether Louisiana will join them.
— This story was written by Gambit staff writers Kevin Allman, Jeanie Riess and Alex Woodward, along with Robert Morris of Uptown Messenger (www.uptownmessenger.com).