Louisiana Appeals Court Rejects Challenge To New Orleans Domestic Partnership Registry
Written by Arthur S. Leonard Friday, 23 January 2009 11:07
A unanimous three-judge panel of the Louisiana 4th Circuit Court of Appeal has rejected a challenge brought by the Alliance Defense Fund against a New Orleans municipal ordinance that created a domestic partnership registry for the city.
The court’s January 15 opinion in Ralph v. City of New Orleans, No. 2008-CA-0767, written by Chief Judge Joan Bernard Armstrong, affirmed Trial Judge Nadine M. Ramsey’s ruling from a year ago that the city had the legislative authority to adopt the measure, and intimated as well that the ordinance did not violate the state’s "Defense of Marriage Amendment," passed by the voters in 2004, two years after the lawsuit was filed.
The New Orleans City Council unanimously enacted the Domestic Partnership ordinance in July 1993, then amended and readopted it in 1999. The ordinance merely establishes a registry in which adult cohabiting couples who are not married, either different-sex or same-sex, can register their relationships with the city. After the ordinance was enacted, the city’s Chief Administrative Officer made access to health insurance available to registered domestic partners of city employees. As of 2003 when discovery was being conducted in the case, only ten registered domestic partner couples had applied for insurance benefits, and the evidence indicated a minimal cost of a few hundred dollars a year to provide the insurance coverage.
In 2002, the Alliance Defense Fund filed suit on behalf of a group of New Orleans taxpayers to challenge the Council’s authority to enact the ordinance. The suit generated procedural litigation under which lower courts found that the plaintiffs lacked standing to challenge the ordinance, but the state Supreme Court decided that they did have standing and sent the case back to a trial court for a hearing on the merits. The trial court ruled a year ago, rejecting the challenge.
The plaintiffs argued that under the home rule charter and the state constitution, New Orleans was precluded from establishing new legal forms of family relationships. They relied primarily on Article VI, Section 9 of the Louisiana Constitution, which states that "no local governmental subdivision shall . . . enact an ordinance governing private or civil relationships." So the question for the court was whether the establishment of a domestic partnership registry could be said to be "governing private or civil relationships."
The court decided that the ordinance did not "govern" relationships, but instead merely recognized their existence. Wrote Judge Armstrong, "It is clear from the legislative history of the ordinance that it did not create the concept of domestic partnership, and was intended merely to acknowledge the previous and continuing existence of these arrangements, not to give them any particular legal status by setting forth a set of legal rights and obligations that would flow from the already existing relationships."
The court looked to the dictionary definition of "govern," "to control and direct the making and administration of policy in," and found it inapplicable to this situation. "The ordinance does not control the making and administration of domestic partnerships," she wrote, "it merely provides a mechanism whereby persons may register these partnerships with the City." Armstrong further observed that "private contracts that might form domestic partnerships are not controlled, regulated or directed by the ordinance. The terms and legal effect of these and all other contracts are regulated only by the applicable general laws of the state, city and nation. . . It would stretch any proffered definitions to find that the registry ordinance ‘governs’ private, civil relationships."
Furthermore, the court rejected the plaintiffs’ argument that "the registry ordinance would confuse the marital status, rights and benefits accruing to married persons ‘as they drive from Lafayette’ to New Orleans." Armstrong observed that the ordinance had no effect on the state statutes dealing with marriage, "creates no obligations between the parties who choose to register, and provides neither an enforcement mechanism nor a cause of action for which redress may be sought in the courts of this state."
Of course, the New Orleans ordinance is of the minimalist registry-only variety. Were the city to try to load up registered domestic partnerships with rights, entitlements, and obligations, similar to those contained in more broadly worded domestic partnership ordinances such as the one enacted by New York City during the 1990s, it might well exceed its legislative authority in light of the constitutional restriction.
The state’s Defense of Marriage constitutional amendment was enacted in 2004, two years after this lawsuit was filed, and was never formally made part of the case, but during the argument of this appeal, the plaintiffs argued that it provided an additional basis to strike down the ordinance. Among other things, the Marriage Amendment provides that "a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized." The court found that the claim of unconstitutionality based on this amendment "was not raised by petition, answer, or exception," was not before the trial court, and was not served on the Attorney General, as required by state procedural rules, and thus was not properly before the court.
The plaintiffs sought to argue that the Marriage Amendment was relevant in showing a public policy of preferring traditional different-sex marriages to any other arrangement. However, in a footnote, the court observed, "When La. Const. Art. XII, sec. 15 defines marriage, it does not speak to a preference; it merely provides that the incidents of marriage are to flow only from marriage as it is defined in that section," thus intimating that even had a challenge based on the amendment been before the court, it would most likely not have been successful.
Since the challengers are represented by a cause organization, it seems likely they will seek to appeal this ruling to the Louisiana Supreme Court. The New Orleans City Attorney’s Office defended the ordinance, with Lambda Legal intervening on behalf of some New Orleans domestic partners seeking to protect their rights.
Read the original story by Leonard Link
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