AP Photo/Janet McConnaughey
Wednesday, Feb. 12, 2014 | 9:30 p.m.
NEW ORLEANS — Four gay married couples filed a federal lawsuit challenging the Louisiana Constitution's prohibition against recognizing same-sex marriages performed legally in other states.
Two of the couples said their daughters — one 10 months old, the other 2 ½ years old — were their main reasons for joining the other couples and the Forum for Equality Louisiana in filing the lawsuit Wednesday.
Louisiana does not recognize both members of a same-sex union as parents, whether the child is adopted or born to the parents.
Jacqueline M. Brettner, an attorney, said that after her wife, nurse Lauren Brettner, gave birth to their daughter, she realized that she herself wouldn't have the right to deal with the child's medical or school problems. The Brettners have been committed since 2011 and married on Valentine's Day 2012 in New York. Their daughter is 10 months old.
"Lauren is the only parent listed on (the) birth certificate. I have no legal rights," Jacqueline M. Brettner said during a news conference.
Lauren Brettner said, "We feel no one should have to worry that their child would be raised by anybody other than their spouse if, God forbid, anything should happen."
Unless courts overturn a 2004 constitutional amendment defining marriage as "only of the union of one man and one woman," the state must do as it says, said state Secretary of Revenue Tim Barfield, a defendant in the suit. The amendment also forbids state officials or courts from recognizing a marriage "contracted in any other jurisdiction which is not the union of one man and one woman." Currently, 17 states allow gay marriage.
The suit was filed the same day that a federal judge in Kentucky struck down that state's ban on recognizing same-sex marriages performed in other states and that couples in Missouri and the American Civil Liberties Union filed a similar lawsuit in Missouri.
"We just got news of the Kentucky decision within the past few hours so the full ramifications aren't clear," said Chris Otten, chair-elect of the Forum for Equality and chair of its lawyers committee. "From what I've seen this judge is the latest in a string of judges to find, in issues very similar to ours, that it's just unconstitutional for states to discriminate against marriages legal in another state.
"It seems like the tide is changing."
Physician Nicholas Van Sickle and history teacher Andrew S. Bond, who married in August in Washington, D.C., have been committed since 2008. Van Sickle's name is on their 2 ½-year-old daughter Jules' birth certificate as her only parent.
"We were there for her birth and every moment since," Van Sickle said.
But he must renew a provisional custody document every year to give Bond limited legal rights to care for Jules.
Both of those couples live in New Orleans, as do Henry Lambert and R. Carey Bond, who are out of the country. Attorney L. Havard Scott III and actor Sergio March Prieto, a citizen of Spain who was able to get permanent residency papers after their marriage in Vermont, came from Shreveport, in northwest Louisiana, to participate in the news conference. They have lived together since 1997.
Andrew Bond and R. Carey Bond are not related.
The lawsuit also says that state revenue department policy, based on the ban, forces married same-sex couples who file joint federal tax returns to lie on their state returns, saying they're single. That violates their First Amendment right to free speech, Forum attorney Dalton Courson said.
He and Otten said that, as far as they know, the Forum's lawsuit is the first to bring that argument.
The lawsuit follows months of legal research following the U.S. Supreme Court ruling that struck down parts of the federal Defense of Marriage Act in June, finding that same-sex couples should get the same federal benefits as heterosexual couples.
That ruling led to a series of federal policy announcements regarding same-sex unions. One that comes into play in the Louisiana case is the Internal Revenue Service policy allowing legally married gay couples to file joint federal tax returns, even if they live in states that do not recognize same-sex marriages.
Louisiana law directs taxpayers to use the same status on state tax returns that they use on federal returns. But because of the state constitution's ban, the revenue department requires a gay couple filing as married on a federal tax return to file a Louisiana return as single or head of household.
That forces married couples who file joint federal returns to face different tax liabilities than other married couples in the state, the lawsuit says.
Barfield, who is an attorney, said department and outside lawyers advised that the state Constitution trumps state law.
"I'm sure they'll try to get the constitutional provision ruled unconstitutional. Until that happens, we have to uphold the Constitution and laws of Louisiana," he said. "If that challenge is unsuccessful, we'll continue business as usual."
He and State Registrar Devin George are defendants in the suit.
Forum attorney Dalton Courson said, "We're not asking Louisiana clerks of court to start issuing any marriage licenses," only to recognize legal marriages.
The suit also addresses other instances in which legally married gay couples are treated differently from married opposite-sex couples, noting that same-sex spouses are denied inheritance rights when one dies.
In another legal challenge in neighboring Mississippi, a woman is seeking to divorce the wife she married in California. She wants Mississippi to recognize the marriage so she can get the divorce.