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Righteous and Holy

Cross-posted from The Ind:


Wednesday, Oct. 1, 2014

Photo by Robin May
RubinEd 140925 6515 RMay
District Judge Edward Rubin

For a few brief seconds on Thursday, Sept. 25, 2014, for the first time ever, same-sex marriage was legal in Louisiana, specifically Acadia, Lafayette, and Vermilion parishes. But before any vows could be exchanged and any certificates could be issued, a suspensive appeal was granted.

Three days before, Judge Edward Rubin of the 15th Judicial District Court became the first sitting judge in Louisiana history to rule, definitively, that the state’s ban on same-sex marriage was unconstitutional. Only 19 days earlier, another Louisiana judge, U.S. District Judge Martin Feldman of New Orleans, also made history. In upholding Louisiana’s ban, Judge Feldman broke a streak of more than 20 consecutive decisions from all over the country striking down bans against same-sex marriage.

Although Feldman’s opinion was the subject of intense national media attention (largely because it was such an outlier), Rubin’s decision, at least within the context of Louisiana jurisprudence, will likely be remembered as much more historically significant.

But before I explain why, please allow me to digress.

Despite what the punchlines of far too many jokes may suggest, you cannot marry your first cousin in Louisiana, Arkansas or even Mississippi. But if you really want to marry your first cousin and have your marriage legally recognized in Louisiana, there’s no reason to panic: All you need to do is get hitched in Alabama or, to be fair, New York, California, Florida, Hawaii, or one of the 18 other states across the country that recognize incestuous marriages between first cousins.

If you’re feeling particularly adventurous, you could even tie the knot in Iran, because Louisiana also recognizes incestuous marriages between first cousins entered into in the Islamic Republic of Iran. I’m not kidding.

In 2008, Louisiana’s First Circuit Court of Appeal recognized the validity of an Iranian marriage, performed in 1976, between first cousins, even though the husband had moved to the United States only a year later and even though he had subsequently married and divorced an American woman (apparently to help him expedite his citizenship status) and then, decades later, remarried another woman from Baton Rouge. The court explains (emphasis added):

Based upon the law of Louisiana, first cousins may legally cohabitate, have intimate relations, and even produce children; however, they are merely prohibited from regularizing their union by marriage. This disparity would tend to negate any contention that Louisiana has a strong public policy against marriages between first cousins, since it is in conflict with this state’s policy to legally solidify such unions for the good of society at large and for the benefit of any potential posterity. (Ghassemi v. Ghassemi, 998 So. 2d 731, 748)

It is also worth noting that in Louisiana and throughout the entire country, two serial killers behind bars on death row still maintain a “fundamental right” to marry one another, as long as they are not of the same sex.

Why do we recognize that it’s important to “legally solidify” unions between first cousins from Iran who haven’t even been together for nearly 40 years and unions between murderers and rapists and violent domestic abusers? How are those unions “for the good of society at large and the benefit of any potential prosperity”? What does this really say about the “sanctity of marriage”?

During the last three years, Louisiana Gov. Bobby Jindal and Attorney General Buddy Caldwell have spent hundreds of thousands in taxpayer dollars and countless hours in order to prevent gay and lesbian American citizens from accessing the fruits and benefits of a right so fundamental to our nation that it can still be enjoyed by prisoners stripped of virtually every other right. Their arguments are specious and easily discounted by the law and by reality.

Marriage, they suggest in one breath, is about incentivizing the traditional nuclear family and ensuring children remained tethered to their biological parents. This, of course, belies the fact that Louisiana already recognizes marriages between cousins, common law marriages, and marriages between people who are elderly, infertile or simply uninterested in ever having children.

In the next breath, they argue that marriage is a state’s rights issue via the 10th Amendment, and that any federal intrusion on a state’s sovereign ability to regulate marriage is thereby unconstitutional. After speaking with Special Assistant Attorney General Kyle Duncan, the D.C.-based attorney hired by Caldwell at $385 an hour to defend Louisiana’s prohibition on same-sex marriage and who had also been hired by Caldwell in 2004 to promote Louisiana’s constitutional amendment banning same-sex marriage, I think it’s safe to say that they think this is their strongest argument. But it’s a house of cards.

Remember, there’s still a Constitution and 25 other amendments (26 if you count the 18th Amendment, which enforced the prohibition of alcohol, though Louisiana never counted that one anyway). States can’t constrict or constrain any of the protections and fundamental rights guaranteed by the Constitution; they can only expand and enhance those protections and fundamental rights.

In our conversation and in the briefs he filed with Judge Feldman’s and Judge Rubin’s courts, Duncan repeatedly quoted from Supreme Court Justice Anthony Kennedy’s majority opinion in United States v. Windsor, the 2013 case that struck down portions of the federal Defense of Marriage Act as unconstitutional.

Angela Costanza and Chasity Brewer, the couple whose custody
case led to Judge Ed Rubin’s historic decision clearing the state’s
ban on same-sex marriage unconstitutional

That may seem paradoxical to some: How could you possibly use a Supreme Court opinion striking down federal discrimination on the basis of sexual orientation in order to justify state discrimination on the basis of sexual orientation? The short answer is: You probably can’t, but you can try.

Duncan, writing on behalf of the state of Louisiana, argues that Windsor actually reaffirmed the supremacy of state regulation of marriage. In Windsor, an elderly widow who legally married her wife in Canada and had their marriage recognized by the state of New York was denied more than $300,000 in federal survivor’s benefits, because the Defense of Marriage Act prohibited same-sex couples from accessing or receiving benefits.

At the risk of boring you with the minutia, I think this is important, because it’s the argument our taxpayer dollars are funding: The Supreme Court, Duncan suggests, was less concerned about striking down a federal law that discriminated against gay and lesbian couples than it was with deferring to a state law protecting those couples. Therefore, according to his logic, even though Windsor represented the biggest victory for gay and lesbian rights in American history, and even though it obliterated a federal law that had been passed by the Congress and signed by the president, it actually was a green light for states to pass laws banning same-sex marriages and same-sex adoptions.

So far, only one judge in the entire country has agreed with Duncan’s logic: Feldman in New Orleans.

It is easy for some to become more focused on theory than practice. And in practice, these bans are most assuredly discriminatory; they most certainly are based on animus toward gay and lesbian Americans; they tangibly hurt families and children; they perpetuate a culture of bigotry and bullying and blind hatred.

As a heterosexual white male from an upper middle class family, I don’t need to have a dog in this fight, but I feel obligated because of people like Chasity and Angela.

Ten years ago, Chasity Brewer realized a dream for her and her partner Angela Costanza. Thanks to the marvels of modern medicine, Chasity gave birth to the couple’s first child, a healthy little baby boy. Like most spouses, Angela was right by Chasity’s side the entire time. And even though Chasity was the “biological mother,” Angela was actually the first to hold their baby boy in her arms.

Four years later and only three months after California’s Proposition 22 (the precursor to Proposition 8) was found to be unconstitutional, Chasity and Angela were finally able to make it official: They got properly, legally married.

With their little boy in tow, Chasity and Angela decided to settle for good in Lafayette. And although they likely knew their marriage would not be recognized in Louisiana, as it would have been if they were opposite sex first cousins, they hoped, at the very least, that their family would be dignified and recognized. Angela and Chasity filed for an intrafamily adoption, so that Angela would be legally recognized as a parent of their son, in the same way that countless stepfathers and stepmothers have been granted adoption rights for decades.

They hired a smart, young attorney, Josh Guillory, an Iraqi War veteran who graduated at the top of his class in law school. Louisiana is a small state, and as it turns out, unbeknownst to me when I began writing this article, he happens to be the same Josh Guillory I knew as a classmate in high school. I call him up and congratulate him on his victory, and just as he was at Alexandria Senior High, Josh is gracious and humble. I ask him what attracted him to take up this case.

“I’m a conservative,” he says, more than once. “And I’m a member of the NRA, even though I don’t own any guns right now,” he laughs. For Josh, this case has nothing to do with partisan politics; it is about ensuring equal protection under the law.

Josh submitted a trove of documents to the trial court, including “an Authentic Act of Consent to Adoption by the biological mother, Chasity Brewer, a criminal records check from the Lafayette Parish Sheriff’s Office, the recommendations and records check for any validated complaints of child abuse or neglect from the Department of Child and Family Services and the Child Welfare State Central Registry Check.” Everything turned up clean. His i’s and j’s were dotted, and the t’s were crossed. Judge Rubin granted adoption rights to Angela, and for the first time ever, their rights as an intact and loving family unit, including their now 10-year-old son who had known them since birth as his parents, had been recognized in Louisiana.

However, the office of Attorney General Caldwell and, particularly, Special Assistant Attorney General Duncan, who had only just been hired back, were not pleased with the decision, and they tried their best to convince the court that these two loving, committed, legally married women shouldn’t be allowed an intrafamily adoption of the boy they raised together since his birth.

Perhaps unwittingly, Caldwell and Duncan, in attempting to invalidate the adoption of a 10-year-old boy by a parent who had known him, cared for him and loved him since the very moment of his birth, turned this case into a much broader set of issues about the constitutionality of laws that prohibit same-sex marriages in Louisiana.

I am well aware that Louisiana is, at least for now, a reliably conservative state, and I fully appreciate the influence of the religious right in our politics. But what are we doing here?

We’re paying a lawyer in Washington, D.C., $385 an hour to write creative essays styled as legal briefs about why two loving parents shouldn’t be allowed to adopt their own child. We’re denying decent, hardworking, patriotic and compassionate Americans — our neighbors — the basic dignity and the fundamental right of marriage. Louisiana taxpayers don’t spend money attempting to prevent serial killers from marrying one another, and we don’t spend money to stop 18-year-old girls from marrying predatory 65-year-old creeps.

I spent a great deal of my childhood in the classrooms and the sanctuary of First United Methodist Church in Alexandria. I taught Sunday School when I was a teenager, sang in the youth choir and, when I was 17, I delivered a sermon from the pulpit; the topic was grace. I earned a degree in religious studies when I was an undergraduate at Rice University. I don’t know if any of this really qualifies me to opine on religion, but I know this: There is nothing righteous or holy about Bobby Jindal and Buddy Caldwell’s relentless persecution of our LGBT brothers and sisters.

That was an awfully long digression. My apologies.

So, why will Judge Rubin’s decision be remembered as historically significant? Because it was righteous and holy.

Lamar White Jr. is a native of Alexandria and author of, an award-winning blog about Louisiana politics. He is in his final year of law school, concentrating on constitutional law and public policy, at the SMU Dedman School of Law in Dallas, where he lives with his golden retriever, Lucy Ana.

Sen. Landrieu: Koch Brothers Have Spent $7.5M In TV Ads in Louisiana, But Not “More Than A Week Here In Their Entire Lives”

In 2007, in his second attempt at the Governor’s Mansion, Congressman Bobby Jindal raised more campaign money than any candidate for state office in Louisiana history: $11 million. At the time, it was considered a staggering amount of money, made even more staggering when you considered what his closest opponents spent out of their own pockets. Walter Boasso, who finished in second place with 18% of the vote, put up $5 million, and John Georges, who received 14% of the vote, loaned his campaign $10 million. “The race was one of the highest-spending in Louisiana history,” The Washington Post reported, and that may have been an understatement.

Consider this: In 1991, when Edwin Edwards faced David Duke in a run-off, the total amount of money raised and spent in that campaign was less than $4 million, and it was considered the most important gubernatorial election in the country. Donations poured in for both candidates from all across the country.

Suffice it to say, things have changed, and the money spent in the gubernatorial elections in 1991 and even in 2007 pale in comparison to the money currently being spent in Louisiana this year in the race for the United States Senate. According to the most recent reporting, which is now months old, Mary Landrieu has raised more than $14 million, and her main challenger, Bill Cassidy, has raised at least $8.6 million. But that only tells part of the story.

Charles and David Koch, two of the world’s wealthiest men, have already spent nearly as much in the Senate campaign in Louisiana as Bill Cassidy, the candidate they ostensibly support, has raised in total. As of a month ago, the Koch brothers, through their affiliated advocacy groups, had paid for more than 4,900 ads in Louisiana. To be sure, those advocacy groups aren’t required by law to disclose their donors, but as The Times-Picayune reports, “the Koch brothers have made little secret that they support the groups with donations.” Back in February, the Koch brothers hired actors to star in a commercial attacking Senator Landrieu’s support of the Affordable Care Act. Quoting from a report by ThinkProgress:

The Koch-backed group Americans for Prosperity is out with a new ad featuring several people — who appear to be Louisiana residents — receiving notices in the mail that their insurance plans have been cancelled thanks to Obamacare. “Send Senator Landrieu a message: Obamacare is hurting Louisiana families,” the ad concludes.

But the people featured in the hard-hitting ad aren’t actually Louisiana residents at all. In reality, they’re paid actors hired by the right-wing group.

“Hiring professional actors to impersonate Louisiana families is low even for the billionaire Koch brothers,” the senator’s campaign manager, Adam Sullivan, told ABC News.

The Koch brothers aren’t the only outsiders spending money on advertising. Two days ago, the National Rifle Association launched a provocative television commercial warning Louisiana voters that Mary Landrieu wanted to take their guns away. The NRA’s timing couldn’t have been more off. The ad debuted on the same day that Landrieu and Senator Joe Manchin campaigned together at a shooting range in Maurice, Louisiana. But why does the NRA believe Landrieu wants to take your guns away? According to Politifact, the NRA based its argument on the fact that Landrieu voted to confirm Sonya Sotomayor to the Supreme Court and favored background checks at gun shows, a claim so egregious that it earned a “Pants on Fire” rating.

Notably, this is the second time in only a week that a commercial attacking Sen. Landrieu has been rated as categorically false by an objective third-party fact-checker. Bill Cassidy’s recent ad suggesting that Landrieu voted in favor of amnesty for illegal immigrants was thoroughly debunked by The Washington PostCassidy, the Post reported, put “his credibility on the line” by so brazenly lying about Landrieu’s record. Months ago, the Post also debunked an ad attacking Landrieu, calling it “nonsensical.” “Television stations in Louisiana should be ashamed of falling for such an obvious gambit,” the paper argued.

False and misleading campaign attack ads aren’t exactly a new thing, but because of the proliferation of outside money from anonymous donors in our elections, it’s become increasingly difficult to hold anyone accountable and responsible for lying to voters and manipulating the facts. And this is troubling, because it distorts our political process and prevents the public from ever having a sensible debate and conversation on the real issues. It drowns out the voices of actual voters and allows billionaire brothers from Kansas and ideologues from Washington D.C. to hijack an election that, presumably, should be about who is best equipped to represent the people of Louisiana.

When I spoke with Sen. Landrieu on Tuesday, I asked her about the corrupting influence of money in politics, prompting her with a question about the controversial 2010 Supreme Court case Citizens United v. Federal Election Commission. Here is an excerpt of the transcript (emphasis mine):

Lamar: Maybe we can turn to Citizens United, if you don’t mind.

Landrieu: Go ahead.

Lamar: Recently, a couple of days ago, Justice Ginsburg called Citizens United the worst case of the current Court. Do you agree with that assessment? Would you support a Constitutional amendment to limit the influence of money in politics?

Landrieu: I agree that it is a very bad decision, and it’s very hurtful, I believe, to our democratic process. Because what the Court did is say that corporations, like people, should be able to contribute unlimited and undisclosed money to affect the public debate. While individuals have a free right to speech and unlimited speech, it’s clearly arguable if corporations are entitled to the same privilege. And what that does is it skews things.

Assuming corporations have a great deal of money- even small corporations are usually wealthier than individuals, have a net worth higher than individuals- it denies ‘one man one vote,’ ‘one man one voice,’ ‘one woman one vote,’ ‘one woman one voice.’

Now, you know, I’m on the same side as John McCain. There are Republicans and Democrats that feel strongly about this. This is not necessarily a straight party line issue.

But people in this campaign are seeing the results of this out-of-control spending.

The Koch brothers have spent $7.5 million just in television ads in Louisiana, and I don’t know if they’ve even spent more than a week here in their entire lives.

Jindal Administration Deceives Louisiana’s Clerks of Court About Same-Sex Marriage Decision

On September 25, 2014, at 9:26 in the morning, hours before State District Judge Edward Rubin’s historic decision striking down Louisiana’s ban against same-sex marriage would become official, the Louisiana Department of Health and Hospitals sent out a deceptive and misleading memorandum to all of the state’s Clerks of Court. The DHH, under the imprimatur of Governor Bobby Jindal, told Clerks in all 64 parishes that Judge Rubin’s decision had nothing to do with legalizing same-sex marriage and everything to do with a couple in Lafayette seeking an intrafamily adoption of their own child.

Screen Shot 2014-09-27 at 2.01.03 AM

Let’s get a few things clarified and corrected right now:

1) While it is true that the case involved a lesbian couple who had gotten legally married in California and now sought an intrafamily adoption of their own 10-year-old son in Louisiana, it manifestly, clearly, obviously concerned the issuance of marriage licenses in Louisiana, at least licenses granted in Acadia, Vermilion, and Lafayette parishes. Judge Rubin struck down Louisiana’s same-sex marriage ban as unconstitutional. It may have begun as an adoption case, but it ended as a marriage case.

2) Rulings from trial courts don’t always exclusively effect or apply to the specific case at bar. In this case, the Judge struck down laws that affect thousands of gay and lesbian Louisiana citizens, not merely this one couple.

3) At the time in which this memorandum was issued, the judge’s ruling had not yet been suspended, which meant that for at least three hours on September 25th, licenses for same-sex marriage could have been granted in three parishes: Acadia, Vermilion, and Lafayette.

According to the DHH, the memorandum was drafted by Devin George, the State Registrar of Vital Records. As his social media account publicly discloses, Mr. George is a fan of “Forum for Equality,” one of the state’s oldest and most prominent LGBT advocacy organizations and a party to the recent case decided by Federal District Judge Martin Feldman; George is also listed as a member of the Louisiana Stonewall Democrats, the state’s largest political organization for LGBT citizens. I don’t know Mr. George, but, considering his political persuasions and his alliances with same-sex marriage organzations, I had a very difficult time believing that he would actually have written this particular memorandum. So, I asked a spokesperson from the DHH for clarification; she was kind, gracious, and in so many words, let me know how she stood on the subject, adhering impressively to an old adage by Uncle Earl, “Don’t write anything you can phone. Don’t phone anything you can talk. Don’t talk anything you can whisper. Don’t whisper anything you can smile. Don’t smile anything you can nod. Don’t nod anything you can wink.” Suffice it to say, I give her the benefit of the doubt, but I was still confused why the Jindal Administration sent out a deceptive memorandum signed by a man who, presumably, supports marriage equality.

“Devin wrote it,” she said, “but the lawyers looked over it.” With all due respect to Mr. George, I am going to assume that the lawyer, Kyle Duncan, who was specifically hired to work on this case, wrote the memorandum, and Mr. George merely signed his initials.

“I’m guessing they added the talking points?” I asked.

“Yes, they helped,” she said.

Here’s what Judge Rubin’s order actually said. Please, feel free to compare it to the DHH memorandum:

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On Wednesday, I’ll be publishing a longer piece about this on The Independent Monthly, but for now, I thought it was important to point  this out: Your taxpayer dollars working to confuse, distort, and lie about a historical decision in order to improperly advise and deceive Clerks in the affected parishes so that they wouldn’t issue a single same-sex marriage license before the State was able to finish its motion for a suspensive appeal. Make no mistake: On Thursday afternoon, gay and lesbian couples in Louisiana could have gotten married, and the only reason that they weren’t able to is because the Jindal Administration lied about the decision and its implications to the Clerks who are charged with issuing those licenses.

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