Only Mississippi seems to follow Louisiana in waiting on allowing issuance of these, where the state’s Constitution prohibits state recognition of such unions but last week’s U.S. Supreme Court decision that used creative license to give birth to a new protected class defined only by its behavior will override that passage. The Court recognizes a 25 day period for reconsideration although that is extraordinarily unlikely to happen. As a result, almost all states have started to issue such licenses, including 12 of the 14 that either did not have the ability in their Constitution, by law, or by judicial fiat.
But Louisiana and Mississippi lay under the jurisdiction of the Fifth Circuit Court of Appeals, which previously had heard a district court case that had denied the federal government the power to impose a definition of marriage on states. The Supreme Court heard cases consolidated from another circuit. That means that the Fifth Circuit must remand the case it ruled on back to the district court to revisit its decision in light of the discovery of the new protected class and its rights granted by the highest court, but until then its interpretation stands, reaffirmed by Gov. Bobby Jindal. Already such a petition to review had been filed. Atty. Gen. Buddy Caldwell did not mention this action in his statement about why he will not direct license issuance to clerks.
Thus, Jindal and Caldwell do not have to follow the Obergefell v. Hodges outcome, yet. Because of the state’s eccentric treatment of Orleans Parish, both officials have authority over the legal process of issuing marriage licenses (which are good in any parish for 30 days after issuance, after a 3-day waiting period although that can be waived). All other parishes have a single clerk of court that look to Caldwell’s for guidance, while Orleans has a civil clerk and separate clerks for its two city courts, where they don’t have this authority that instead lies oddly with the Department of Health and Hospitals that is under Jindal’s control, even as it shares office space with the clerks in Orleans.
For Caldwell, the political payoff in waiting stems from his fall reelection contest. He faces a stiff challenge from former Rep. Jeff Landry, who has impeccable conservative credentials, including on social issues. By contrast, Caldwell does not so in backing traditional values this way he can shore these up. For Jindal, the move merely reiterates his well-known opposition to the concept, although perhaps now of greater significance to more people as he runs for the presidency.
Importantly, while Jindal controls what DHH does, Caldwell cannot control what clerks do, only advise them of whether the Constitution still would be enforced on this matter. Thus, if a clerk of a parish wishes to give out such licenses, they can do so essentially with impunity, because chances are Caldwell would not prosecute over a part of the state Constitution on life support. A number appear to have proceeded. At the same time, with the ruling newly uncharted territory has been discovered as to whether clerks with religious objections must be compelled to issue licenses.
However, the larger question is whether Louisiana society benefits as a whole by a delay, regardless of length. While homosexual behavior may be immoral to Jindal (Caldwell has not voiced a public opinion on that), and that people of faith do not want to be willing parties to something that encourages immoral behavior, the issue doesn’t address this in confining itself to parties permitted in a legal contract. The faithful may continue to speak out against homosexual behavior, but allowing same-sex marriages under law has no bearing on whether such conduct occurs. Also, why wait, if it must happen anyway?
Yet the delay serves a purpose by standing witness to the injury done to democracy and threat of tyranny thereby invited. The U.S. Constitution has suffered a great injury by writing into it by fiat rather than by democratic processes protected status for individuals based not upon immutable characteristic but solely upon their behavior and attitudes – a status previously only recognized in the explicit wording of the First Amendment for religious and political beliefs and practices. The door now is open to use undemocratic processes to extend that privilege to whatever beliefs are fashionable – or, worse, to prejudicially discriminate against those people who hold beliefs that are not. The ruling brings the idea of “thoughtcrime” out of the fictive world of the novel 1984 into American jurisprudence just over three decades delayed.
In viewing representatives of the small segment of society that consistently practices homosexuality and those others agreeing with them on the issue who engage in celebration over the ruling, it’s hard not to think of similar past episodes where peoples celebrated an instrumental gain they believed for their own welfare at the cost of having tyrannical impulses supply that, such as when many citizens of the Sudetenland in then-Czechoslovakia, a majority German-speaking area, came out to cheer Nazi Germany’s troops marching in to absorb the region into the Reich. The future consequences for that region far outweighed whatever benefit they thought they were getting by aligning themselves with tyrannical impulses.
Thus is it the same in this instance, which is why a delay of even a few days can be helpful. For among the celebrants the more thoughtful of them who are less prone to getting swept away by the emotive aspects of a decision argued affirmatively and arrived at emotively, it presents an opportunity to come to understand the folly of the result, the danger that it represents, and the degradation that it causes to the polity. Ultimately, it speaks truth to power, with the very caution of the approach reminding that caution also must condition how we handle the contents of the Pandora’s Box now opened.
American ideals of liberty and democracy are less secure as a result of an outcome desired by some but obtained through an unwise manner. Any delay that helps sensitize society to that truth, which can strengthen its resolve to prevent further erosion to these principles of our political system, is inestimable.