Same-Sex Marriages Are Not Created Equal: United States v. Windsor and Its Legal Aftermath in Louisiana

Author:Mallory Chatelain
Louisiana Law Review
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Same-Sex Marriages Are Not Created Equal: United
States v. Windsor and Its Legal Aftermath in
Meet Jonathan. Jonathan tells you that he has been in a
relationship with his significant other for seven years, and you
cannot resist asking why they have not already gotten married.
Jonathan could give you a number of predictable reasons for this
postponement: age, school, and finances are just a few. But when
Jonathan tells you that he is unsure, his answer surprises you, not
because Jonathan is unsure of the reason he is not married, but
because he is unsure of whether he is already married. You do not
understand. How can Jonathan not know whether he is married?
The answer is simple: after their wedding in Iowa—a state that
permits same-sex marriage—Jonathan and his significant other,
Derek, returned home to Louisiana to find that, although they were
considered married under many provisions of federal law, they
were not considered married at all under Louisiana law.
In fact, Jonathan Robicheaux and Derek Penton are a same-sex
couple who live in New Orleans, and Robicheaux has filed suit against
the state of Louisiana for failing to recognize his same-sex marriage.1
Copyright 2014, by MALLORY CHATELAIN.
a1. The author recognizes that the state of same-sex marriage in the United
States and Louisiana, specifically, is subject to constant change. For example, in
September 2014, days before the publication of this Comment, a Louisiana state
court judge ruled the state’s ban on same-sex marriage unconstitutional in t he
context of juvenile adoption. See Richard Burgess, Judge Rules State’s Ban on
Same-Sex Marriage Unconstitutional, THE ADVOCATE (Sept. 23, 2014),, archived
at The state appealed the trial court’s ruling, and
the trial court stayed the enforcement of the controversial decision. Id. Thus, the
decision had “no immediate impact on the status of same-sex marriages in
Louisiana.” Id. As of the publication date of this Comment, Louisiana still
maintained express constitutional and legislative bans on same-sex marriage,
evidencing the state’s historically strong public policy against such marriages. It
should be noted that this Comment’s argument is premised on the fact that
same-sex marriage is unconstitutional in Louisiana.
1. See Amended Complaint at 1–2, Robicheaux v. Caldwell, 2 F. Supp. 3d
910 (E.D. La. 2014) (No. 13-CV-05090), available at
/uploads/Amended_Complaint_2_clean.pdf, archived at
RVD4. See also Tania Dall, Local Same-Sex Couple Sues State To Have Their
Marriage Recognized, WWLTV (Sept. 20, 2013, 10:07 PM) , http://www
Equal-Rights-224662651.html, archived at S-88X5; Scott
Satchfield, Same-Sex N.O. Couple Challenging State’s Gay Marriage Laws with
In his complaint, Robicheaux alleges the unconstitutionality of
provisions of Louisiana law that both prohibit same-sex marriages in
the state and refuse to recognize same-sex marriages validly
performed in other states.2 These provisions include Louisiana
Constitution Article XII, Section 15, defining marriage in Louisiana as
between one man and one woman, and Louisiana Civil Code article
3520, designating same-sex marriage as a violation of strong public
policy in Louisiana.3 Robicheaux argues that as lo ng as Louis iana
refuses to recognize existing same-sex marriages, same-sex
couples living in the state will not be afforded numerous federal
protections to which they are now entitled as a result of the United
States Supreme Court’s decision in United States v. Windsor, such
as the tax and social security benefits that are typically available to
In its landmark decision, the Supreme Court held that Section 3
of the Defense of Marriage Act (DOMA), which defined marriage
for federal law purposes as “between one man and one woman,”
was unconstitutional.5 As a result, federal agencies are no longer
Federal Suit, FOX (Aug. 5, 2013, 9:45 PM),
al-suit, archived at
2. Amended Complaint, Robicheaux, supra note 1.
3. Id. See also LA. CONST. art. XII, § 15; LA. CIV. CODE art. 3520 (2012).
4. See Amended Complaint, Robicheaux, supra note 1, at 4–5; United
States v. Windsor, 133 S. Ct. 2675 (2013); see also Dall, supra not e 1. In
September 2014, a federal district judge held, in Robicheaux v. Caldwell, that
the provisions of Louisiana law that define marriage as between one man and
one woman and prohibit the recognition of same-sex marriage as a violation of
the state’s strong public policy “do not infringe the guarantees of the Equal
Protection and Due Process Clauses of the United States Co nstitution.” Order
and Reasons at 32, Rob icheaux v. Caldwell , 2 F. Supp. 3d 910 (E.D. La. 2014)
(No. 13-CV-05090), available at
content/uploads/2014/09/Louisiana-marriage-ruling-9-3-14.pdf, archived at The plaintiffs appealed that decision to the United
States Court of Appeals for the Fifth Circuit. See James Queally & Michael
Muskal, Bucking Trend, Federal Judge Upholds Gay Marriage Ban in
Louisiana, L.A. TIMES (Sept. 3, 2014, 5:13 PM),
tion/nationnow/la-na-nn-louisiana-marriage-ban-201 40903-story.html, archived
at; Richard Wolf, String of Gay Marriage Victories
Broken in Louisiana, USA TODAY (Sept. 3, 2014, 6:16 PM), http://www,
archived at
5. Windsor, 133 S. Ct. 2675. See also 1 U.S.C. § 7 (2012); Pete Williams &
Erin McClam, Supreme Court Strikes Down Defense of Marriage Act, NBC
POLITICS (June 26, 2013, 7:04 AM),
/2013/06/26/19151971-supreme-co urt-strikes-down-defense-of-marr iage-act-

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