Executive order JBE 16-11 promulgated last month mostly reinstates a much older order that “[a]ll state agencies, departments, offices, commissions, boards, entities, or officers of the state of Louisiana” shall not “harass or discriminate on the basis of race, color, religion, sex, sexual orientation, national origin, political affiliation or disabilities” in the provision of services, in personnel practices, in contracting, and that contractors must do the same. Also mirroring the past order, this one mandates cooperation from “any political subdivision” in Louisiana. It differs from the past one in that it specifies two additional protected classes, “age” and “gender identity.”
In response, a number of Republicans from the House of Representative petitioned Republican Atty. Gen. Jeff Landry to review unclear aspects of the order, both of those parts copying the older version and the newly introduced protected classes. Legislators may make such a request on an aspect of state law, and in this instance they ask several good questions about how the order impacts how several parts of government may carry out their constitutional and statutory duties. The opinion issued serves as the definitive interpretation of the law until such time the Legislature enacts or a judicial organ rules something different.
A query about whether the order applies to all branches and to local governments perhaps would reach the farthest in implications. Technically, executive orders apply only as the name implies, to the executive branch, in providing guidance into implementing law. Any application further afield runs afoul of the doctrine of separated powers, where other branches can dictate their own implementation of the law. Thus, it seems questionable if local governments must “cooperate with the implementation of the provisions of this Order,” as well as of the necessity of the Legislature and its agencies and of any judicial organ to adhere to the order.
Another question arises from whether such an order can extend to contractors in all situations. The letter points out a potential conflict with R.S. 13:5234 and R.S. 1:10, where a “person,” which would describe a contractor, includes a “church, association of churches or other religious order, body or institution which qualifies” as a charitable organization under federal regulation and also a “body of persons, whether incorporated or not.”
The order exempt as contractors to which it applies any “religious corporation, religious association, religious educational institution, or religious society,” but fails to define these, nor does statute. These potentially would exist somewhat in conflict with the defined persons in R.S. 13:5234, but more importantly, do not include the definition of “person” in R.S. 1:10, meaning that possibly no contractor would qualify as subject to the order, even as the order clearly intends to exempt a narrow set that may not be consistent with the law.
Finally, the very term “gender identity,” the authors note, has no clear definition under the Louisiana and U.S. Constitutions, and they wish Landry to clarify its meaning. Consequent to that, they wonder whether that means individuals may pick whatever public restrooms in government buildings to use according to these people’s feelings about their genders and whether that extends to restroom facilities provided by contractors.
Thus, the GOP House Republicans do the state a service by presenting these questions to Landry, whose history suggests he will decide on the basis of constitutional law rather than by fad or ideology. Meaning that Edwards’ order, particularly regarding the gender identification standard, will not survive. Which does a service to the polity, because without the rule of law a representative democracy forfeits any claim to expressing the will of the people.
When law becomes a function of assertion of power and overreach, as Edwards’ executive order lacking sufficient vetting suggests, and not as a result of democratic expression through agreed-upon rules for distribution of that power, the people lose by their cession of authority to elements wishing to aggrandize power. The request to Landry checks this attempt, and his ruling within the next 30 days should mitigate any breach of the rule of law.