Concurring state justice calls gay marriage ruling 'utter travesty'; another sees adoption exception
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The Louisiana Supreme Court said in a per curiam opinion on Tuesday that it was bound by the U.S. Supreme Court’s gay-marriage decision in an adoption case involving same-sex partners, but one justice disagreed and another reluctantly concurred.
The concurring justice blasted the Supreme Court decision in Obergefell v. Hodges as an “utter travesty,” while a dissenter said the definition of marriage “cannot be changed by legalisms.” The Advocate noted the disagreement among members of the seven-member court.
The court decision (PDF) dismissed as moot a state appeal of a state judge’s ruling striking down the state’s ban on same-sex marriage. After the state judge ruled, the U.S. Supreme Court decided Obergefell and a federal judge struck down the state’s gay-marriage ban.
The plaintiffs, Angela Costanza and Chasity Brewer, had sought legal recognition of their California marriage and recognition of Costanza as a parent to Brewer’s biological son, according to the Advocate story. Because of the legal developments, the couple had received all the relief they requested, the per curiam opinion said.
Concurring Justice Jeanette Theriot Knoll wrote that she was “constrained to follow the rule of law” but she was writing separately to express her views about the “horrific impact” of the 5-4 decision on the democratic rights of the American people to define marriage.
“This is not a constitutionally-mandated decision, but a super-legislative imposition of the majority’s will,” Knoll wrote.
“It is a sad day in America,” Knoll wrote, “when five lawyers beholden to none and appointed for life can rob the people of their democratic process, forcing so-called civil liberties regarding who can marry on all Americans when the issue was decided by the states as solemn expressions of the will of the people. I wholeheartedly disagree and find that, rather than a triumph of constitutionalism, the opinion of these five lawyers is an utter travesty as is my constrained adherence to their ‘law of the land’ enacted not by the will of the American people but by five judicial activists.”
Dissenting Justice Jefferson Hughes III said he couldn’t surrender his convictions to reach agreement.
“Marriage is not only for the parties,” he wrote. “Its purpose is to provide children with a safe and stable environment in which to grow. It is the epitome of civilization. Its definition cannot be changed by legalisms.
“This case involves an adoption. The most troubling prospect of same sex marriage is the adoption by same sex partners of a young child of the same sex. Does the 5-4 decision of the United States Supreme Court automatically legalize this type of adoption? While the majority opinion of Justice Kennedy leaves it to the various courts and agencies to hash out these issues, I do not concede the reinterpretation of every statute premised upon traditional marriage.”
Another concurring justice, Greg Guidry, said Hughes “appears to be unaware of the facts of the case before us, which involves the intrafamily adoption of a boy by the female spouse of the boy’s biological mother. … In any event, the dissenting opinion cites no legal or scientific authority, nor does the record contain any evidence, that would support its insinuation.”
