Et Al., Plaintiffs: U S D C E D L

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.,
Plaintiffs
v.

JAMES D. CALDWELL, et al.,
Defendants
CIVIL ACTION

NO. 13-5090 C/W
NOS. 14-97 & 14-327

SECTION F(5)

DEFENDANTS SUPPLEMENTAL BRIEF

Pursuant to the Courts June 26 order (Doc. 114), defendants submit this brief
addressing (1) whether the Fourteenth Amendment gives same-sex couples the
right to marry in Louisiana, and (2) whether Louisiana violates the First
Amendment by requiring persons in a same-sex marriage contracted elsewhere to
file Louisiana tax returns as single persons.
1
The answer to both questions is no.
All pending claims are now ripe for decision. Defendants ask the Court to grant
their pending motion for partial summary judgment and reject plaintiffs claims
that the Constitution compels Louisiana to recognize out-of-state same-sex
marriages. Doc. 84. Defendants also ask the Court to enter summary judgment
against plaintiffs on their remaining claims. See FED. R. CIV. PROC. 56(f) (allowing
court to grant summary judgment independent of pending motions, provided parties
are afforded notice and a reasonable time to respond).
2

1
The Court also requested briefing on whether the Full Faith and Credit Clause requires
Louisiana officials to recognize out-of-state same-sex marriages, but the parties have moved
to voluntarily dismiss that claim. Doc. 119.
2
Defendants believe further briefing is unnecessary, but they reserve the right to file a
reply brief if plaintiffs file one. Defendants oppose the request for oral argument by
plaintiffs Welles and Beauregard on their summary judgment motion filed today. Doc. 118.
Case 2:13-cv-05090-MLCF-ALC Document 120 Filed 07/16/14 Page 1 of 24
2
I. THE CONSTITUTION DOES NOT COMPEL LOUISIANA TO ADOPT SAME-SEX
MARRIAGE.
A. Louisiana has sovereign authority over its domestic relations law.
Whether the Constitution compels Louisiana to alter its marriage definition and
allow same-sex couples to marry is closely related to the question whether
Louisiana must recognize same-sex marriages contracted elsewhere. See Docs. 84-1,
102, 108. The two issues should be resolved on the same grounds.
3
Defendants
therefore submit they are not compelled to allow same-sex marriage in Louisiana
for the same reasons they are not compelled to recognize same-sex marriages from
other states. In brief, those reasons are:
(1). Federalism. Whether to enlarge the definition of marriage to include
same-sex couples lies within Louisianas historical and essential authority to define
the marital relation. United States v. Windsor, 133 S. Ct. 2675, 2689, 2692 (2013).
That authority was of central relevance to the Supreme Courts decision last year
in Windsor to overturn the federal marriage definition in DOMA. Id. at 2692.
Plaintiffs claim that Louisiana must adopt same-sex marriage would effectively
overrule Windsor. See Doc. 84-1 at 4-7; Doc. 102 at 2-5; Doc. 108 at 1-2.
(2). Equal Protection. Louisianas marriage laws should be examined only under
rational basis review. Doc. 84-1 at 11-13; Doc. 102 at 6-9; Doc. 108 at 4; Doc. 112.
Defining civil marriage as a man-woman relationship is rational because: (a) a

3
While mistakenly creating a due process right to same-sex marriage, many courts have
properly treated the right-to-marry and marriage-recognition issues as interrelated. See
Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 at *16 (10th Cir. June 25, 2014) (In light
of Windsor, we agree with the multiple district courts that have held that the fundamental
right to marry necessarily includes the right to remain married.) (collecting cases).
3
principal legal purpose of marriage is to link children with an intact family formed
by their biological parents, and (b) the vast majority of children are born from the
sexual union of a man and a woman. Doc. 84-1 at 12-17; Doc. 102 at 15-17.
Louisianas decision in 2004 to retain its definitionand not to adopt same-sex
marriagewas also rational. Adopting same-sex marriage involves a far-reaching
legal acknowledgment demanding the formation of consensus among a states
citizens. Windsor, 133 S. Ct. at 2692. Whether a state adopts same-sex marriage
(like 16 states) or retains the man-woman definition (like 34 states), that choice is
rational. Indeed, as Windsor said, it is without doubt a proper exercise of
sovereign authority within our federal system, all in the way that the Framers of
the Constitution intended. Id; see Doc. 84-1 at 17-20; Doc. 102 at 17-18.
(3). Due Process. Louisianas marriage laws do not violate due process because
the right to marry someone of the same sex is not deeply rooted in this Nations
history and tradition. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
(quotes omitted). Until 2003, no state had adopted same-sex marriage; two-thirds
still have not. As Windsor taught, the man-woman aspect of marriage no doubt had
been thought of by most people as essential to the very definition of that term. 133
S. Ct. at 2689 (emphasis added). Whether to alter that longstanding definition and
adopt same-sex marriage is not a decision that courts, wielding the due process
clause, should place outside the arena of public debate and legislative action.
Glucksberg, 521 U.S. at 720; see Doc. 84-1 at 20-24; Doc. 102 at 18-23.
4
B. The Tenth Circuit mistakenly created a due process right to marry
someone of the same sex.
On the same day the Court heard argument in this case, a divided panel of the
Tenth Circuit held that same-sex couples have a fundamental right to marry under
the Due Process Clause. Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 (10th Cir.
June 25, 2014). The majority decision is wrong for three main reasons: (1) it ignores
the crucial federalism dimension of Windsor; (2) it misapplies the Supreme Courts
right-to-marry cases; and (3) it misapplies the Supreme Courts right-to-privacy
cases. As Judge Kellys dissent explained, the majority decisionwhose reasoning
would requir[e] every state to recognize same-gender unions[,] contrary to the view
of its electorate and representativeswould turn[ ] the notion of a limited
national government on its head. Kitchen at *33 (Kelly, J., dissenting). The Court
should reject the reasoning of the Kitchen majority.
4

1. Kitchen dismisses federalism as a prudential concern.
Windsor invalidated the federal marriage definition because of the states
historic and essential authority to define the marital relation. 133 S. Ct. at 2692.
That authority was of central relevance to its holding. Id.; see also id. at 2691 (In
order to assess [DOMAs] validity it is necessary to discuss the extent of the state
power and authority over marriage as a matter of history and tradition.) (emphasis
added). That is why Windsor (1) spent seven pages tracing the origins of state
responsibilities for the definition and regulation of marriage to the Nations

4
The Kitchen majority did not reach equal protection. Defendants therefore do not
address equal protection in detail in this brief, but rely on their previous briefing on that
issue. See Doc. 84-1 at 12-20; Doc. 102 at 15-18; Doc. 108 at 4-8.
5
beginning (133 S. Ct. at 2691, 2689-96); (2) praised New Yorks statewide
deliberative process that enabled its citizens to discuss and weigh arguments for
and against same-sex marriage (id. at 2689); (3) emphasized that DOMA was
unusual because it depart[ed] from [the federal governments] history and
tradition of reliance on state law to define marriage (id. at 2692), and (4) limited its
opinion and holding to those persons who are joined in same-sex marriages made
lawful by the State (id. at 2695-96). In short, Windsor struck down DOMAnot
because it classified by sexual orientation or burdened the right to marrybut
because DOMAs purpose [was] to influence or interfere with state sovereign choices
about who may be married. Id. at 2693 (emphasis added).
The Kitchen majority missed all of this. It reduced Windsors reliance on state
sovereignty to a prudential concern[ ]. Kitchen at *31. It dismissed arguments
appealing to the value of democratic decision-making and the benefits of
federalism as a mere preference that [plaintiffs] arguments be settled elsewhere.
Id. Andremarkablyit said the choice between resolving this issue by federal
decree or by the democratic process was merely a matter of timing. Id.
Judge Kellys dissent rightly rejected this reasoning as a basic misreading of
Windsor. As Judge Kelly explained, Windsor did not create a fundamental right to
same-gender marriage. To the contrary, Windsor recognized the authority of the
States to redefine marriage and stressed the need for popular consensus in making
such change. Id. at *38 (Kelly, J., dissenting) (citing 133 S. Ct. at 2692). Ignoring
that the States are laboratories of democracy with respect to this basic issue
6
would turn[ ] the notion of a limited national government on its head. Id. at *33
(Kelly, J., dissenting) (citing Bond v. United States, 131 S. Ct. 2355, 2364 (2011)).
The Kitchen majority thus repeated the error of several district courts, who have
also watered down Windsors explicit grounding in state authority. See, e.g., Kitchen
v. Herbert, 961 F.Supp.2d 1181, 1193-94 (D. Utah 2013) (Windsors important
federalism concerns are insufficient to overcome plaintiffs rights); Bostic v.
Rainey, 970 F.Supp.2d 456, 476 (E.D. Va. 2014) (finding federal right to same-sex
marriage despite Windsors teaching that deference [to state domestic relations
authority] is appropriate, and even essential); Wolf v. Walker, __ F.Supp.2d __,
2014 WL 244844, at *11 (W.D. Wis. June 6, 2014) (striking down Wisconsin
marriage law, despite admitting that Windsor noted multiple times that the
regulation of marriage is a traditional concern of the states). In these courts view,
Windsor says nothing about whether states may retain the man-woman definition
of marriage. See, e.g., Wolf at *11 (noting that Windsors observations [about state
authority] were not new; the Court has recognized for many years that the
regulation of marriage is primarily a concern for the states). That ignores what
Windsor actually said. DOMA was invalid, Windsor explained, because of the
congressional purpose to influence or interfere with state sovereign choices about
who may be married. 133 S. Ct. at 2693 (emphasis added). Windsor was not
agnostic about a states authority to define marriage; its holding depended on that
authority.
Finally, Kitchen tries to minimize Windsors federalism rationale by invoking its
7
statement that state marriage laws must respect the constitutional rights of
persons. Kitchen at *31 (quoting Windsor, 133 S. Ct. at 2691); see also, e.g., Wolf at
*12; Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999, at *26 (D. Idaho 2014)
(same). This again misreads Windsor. The case Windsor cited to illustrate that
statement was Loving v. Virginia, 388 U.S. 1 (1967). Far from a disclaimer of
enormous proportions, Bishop v. United States, 962 F.Supp.2d 1252, 1279 (N.D.
Okla. 2014), the Courts citation of Loving indicates no plans to override a states
choice regarding same-sex marriage. Loving involved anti-miscegenation laws
racist relics of slavery that violated the clear and central purpose of the Fourteenth
Amendment and triggered strict scrutiny. 388 U.S. at 6, 10. While the Fourteenth
Amendment outlaws such invidious racial discrimination, Windsor recognized that
the Constitution leaves citizens free to discuss and weigh arguments for and
against same-sex marriage because [t]he dynamics of state government in our
federal system are to allow the formation of consensus on this foundational issue.
Windsor, 133 S. Ct. at 2689, 2692. Loving has nothing to do with this case.
2. Kitchen misapplies the Supreme Courts right-to-marry cases.
Drawing on the Supreme Courts right-to-marry cases, Kitchen concluded that a
states man-woman definition denies same-sex couples the fundamental right to
marry. Kitchen at *1, *11-20 (relying on Loving, supra; Zablocki v. Redhail, 434
U.S. 374 (1978); Turner v. Safely, 482 U.S. 78 (1987)). But, as Judge Kelly pointed
out, that conclusion violates the rule that recognition of fundamental rights
requires a right deeply rooted in United States history and tradition, and a careful
and precise definition of the right at issue. Kitchen at *36 (Kelly, J., dissenting)
8
(citing Glucksberg, 520 U.S. at 720-21). The right to marry someone of the same
sexwhich is the right asserted here, properly described, Doc. 102 at 18-22is not
deeply rooted in our national history and therefore does not qualify as a
fundamental right protected by due process. Windsor itself showed why. The man-
woman aspect of marriage, Windsor explained, has been thought essential to the
very definition of [marriage] and to its role and function through the history of
civilization, whereas same-sex marriage involves a new perspective, a new
insight. 133 S. Ct. at 2689. Thus, while states may democratically decide to adopt
same-sex marriage, Windsor confirmed that the right to marry someone of the same
sex is not deeply rooted in our national history. Glucksberg, 520 U.S. at 720; see
also, e.g., Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1096 (D. Hawaii 2012)
(concluding that the right at issue here is an asserted new right to same-sex
marriage and is therefore not the existing fundamental right to marry).
The Kitchen majority side-stepped all this by reasoning that the Supreme Court
has traditionally described the right to marry in broad terms independent of the
persons exercising it. Kitchen at *18 (emphasis added). That is incorrect. The cases
the majority cited held that states cannot bar marriage based on a persons failure
to pay child support (Zablocki, 434 U.S. at 385-87), incarceration (Turner, 482 U.S.
at 95-98), and race (Loving, 388 U.S. at 11). But none of them established anything
as open-ended as a right to marry independent of the persons exercising it.
Kitchen at *18. That would be absurd: a right so broad would give someone the
fundamental right to marry a 13-year-old or a first cousin. See Doc. 102 at 20-21.
9
Windsor itself confirmed that state marriage laws may, and do, vary on such
matters. See 133 S. Ct. at 2691-92 (noting that the required minimum age is 16 in
Vermont, but only 13 in New Hampshire, and that most States permit first
cousins to marry, but a handful prohibit the practice). And long before Windsor,
Zablocki made the same point, cautioning that reaffirming the fundamental
character of the right to marry does not call into question all state incidents of or
prerequisites for marriage. 434 U.S. at 386.
The Kitchen majority simply read the right-to-marry cases far too broadly, a
cardinal violation of the rule that an asserted due process right must be carefully
describ[ed]. Glucksberg, 520 U.S. at 720; see also, e.g., Reno v. Flores, 507 U.S. 292,
302 (1993) (Substantive due process analysis must begin with a careful
description of the asserted right, for [t]he doctrine of judicial self-restraint requires
us to exercise the utmost care whenever we are asked to break new ground in this
field) (quoting Collins v. Harker Heights, 503 U.S. 115, 123 (1992)). None of the
Courts cases even hint that the right to marry is broad enough to encompass
marrying someone of the same sex. As Judge Kelly explained, it is a stretch to cast
those cases in support of a fundamental right to same-gender marriage, because
nothing suggests that the term marriage as used in those cases had any meaning
other than what was commonly understood for centuries. Kitchen at *36 (Kelly, J.,
dissenting); see also, e.g., Jackson, 884 F.Supp.2d at 1095 (observing that the
Supreme Court, in discussing the fundamental right to marry, has had no reason to
consider anything other than the traditional and ordinary understanding of
10
marriage as a union between a man and a woman).
Kitchen relied heavily on Turners discussion of personal aspects of marriage
such as emotional support, spiritual significance, and a pre-condition to the
receipt of government benefits. See Kitchen at *14-15 (quoting Turner, 482 U.S. at
95-96). From that, the majority concluded that the right to marry cannot be limited
to naturally procreative couples but must include same-sex couples. Id. at *18.
That misses the point entirely. The question is not whether civil marriage serves
purposes for the spouses themselves, in addition to linking children with parents. It
does, as defendants have pointed out. See Doc. 84-1 at 16. The question, rather, is
whether a right to marry someone of the same sex is an objective feature of our
legal traditions. Nothing in Turner or any of the right-to-marry cases remotely
addresses that question. Thus, using those cases to construct a right to same-sex
marriage would, as Judge Kelly cautioned, announce a fundamental right by
implication. Kitchen at *37 (Kelly, J., dissenting). It should be clear that
substantive due process analysis does not work by implication. To the contrary,
the Supreme Court demands that the outlines of the liberty protected by the
Fourteenth Amendment [be] carefully refined by concrete examples involving
fundamental rights found to be deeply rooted in our legal tradition. Glucksberg,
521 U.S. at 722; see also, e.g., Jackson, 884 F.Supp.2d at 1096 (In describing the
asserted fundamental right, the Supreme Court has eschewed breadth and
generality in favor of narrowness, delicacy, and precision.) (quoting Log Cabin
Republicans v. United States, 658 F.3d 1162, 1169 (9th Cir. 2011)).
11
Ultimately, the Kitchen majority made the same mistake as the court of appeals
that was reversed in Glucksberg. In that assisted-suicide case, the Ninth Circuit
broadly defined the relevant liberty interest as determining the time and manner
of ones death, or, in other words, [i]s there a right to die? Glucksberg, 520 U.S. at
722 (quoting Compassion in Dying v. Washington, 79 F.3d 790, 801, 799 (9th Cir.
1996)). The Supreme Court rejected that overbroad framing, explaining that we
have a tradition of carefully formulating the interest at stake in substantive-due-
process cases. Id. The Court had never recognized anything as broad as an
unembellished right to die. At most, it had recognized a right to refuse lifesaving
hydration and nutrition, which did not include the asserted right to assisted
suicide. Id. (quoting Cruzan v. Director, 497 U.S. 261, 279 (1990)).
The same analysis applies here. The Kitchen majority imagined the Supreme
Court had established a right to marry in broad terms independent of the persons
exercising it. Kitchen at *18. But a careful reading of the Courts cases shows it has
never recognized a right to marry of such unqualified breadth. The Court has held
that marriage may not be limited by a persons financial ability (Zablocki),
incarceration (Turner), and race (Loving), but that it may be limited by age and
consanguinity (Windsor). No decision has ever suggested the right to marry is broad
enough to encompass the right to marry someone of the same sex. Indeed, the Court
had every opportunity to announce such a right in Windsor, but conspicuously chose
not to. Instead, Windsor acknowledged the opposite-sex aspect of marriage has been
thought essential to the very definition of [marriage] and to its role and function
12
through the history of civilization, whereas marriage between same-sex partner
involves a new perspective, a new insight. 133 S. Ct. at 2689. Those statements
refute the idea that the right to marry someone of the same sex is deeply rooted in
our national history.
In sum, just as in Glucksberg the Ninth Circuit mistakenly extracted from
Supreme Court cases an unqualified right to die broad enough to encompass
assisted suicide, so too in Kitchen the Tenth Circuit mistakenly extracted an
unqualified right to marry broad enough to encompass same-sex couples. That
new right may, of course, be granted by the democratic process, as a minority of
states have done. By virtue of that process, [p]erhaps someday same-gender
marriage will become part of this countrys history and tradition, but that is not a
choice this court should make. Kitchen at *37 (Kelly, J., dissenting).
3. Kitchen misapplies the Supreme Courts right-to-privacy cases.
The Kitchen majority compounded its erroneous analysis of the right-to-marry
cases by relying on the Supreme Courts right-to-privacy cases. Kitchen at *20-21
(relying on Lawrence v. Texas, 539 U.S. 558 (2003), and Planned Parenthood of Pa.
v. Casey, 505 U.S. 833, 851 (1992)). Those cases do not apply here.
First, the right-to-privacy cases address private choices about sex and
procreation, not official government recognition of relationships. See, e.g., Lawrence,
539 U.S. at 565 (explaining that privacy decisions like Griswold v. Connecticut, 381
U.S. 479, 486 (1965), protect the right to make certain decisions regarding sexual
conduct). As Judge Kelly pointed out, those cases afford constitutional protection
for certain moral and sexual choices of same-gender couples, [but] they simply have
13
not created a fundamental right to same-gender marriage. Kitchen at *37 (Kelly,
J., dissenting) (quoting Windsor, 133 S. Ct. at 2694). Indeed, the Kitchen majoritys
principal privacy caseLawrenceexpressly disclaimed entering the same-gender
union fray. Kitchen at *37 (Kelly, J., dissenting); see Lawrence, 539 U.S. at 578
(emphasizing it d[id] not involve whether the government must give formal
recognition to any relationship that homosexual persons may enter).
Second, Kitchen mistakenly used Lawrence as a guide to framing the due process
right in this case. But Lawrence was about sexual privacy, not government
recognition. The privacy right asserted in Lawrence, the Court explained, should not
be framed as a right to engage in homosexual sodomy because it concerned adults
liberty to conduct their private lives in matters pertaining to sex. 539 U.S. at 572.
This case involves the assertion of a different right. Here, plaintiffs do not, as the
petitioners in Lawrence did, seek protection against state intrusion on intimate,
private activity, but instead seek from the courts access to a state-conferred
benefit that the Legislature has rationally limited to opposite-sex couples.
Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006); see also, e.g., Lofton v. Secy of
Dept of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (holding that
it is a strained and ultimately incorrect reading of Lawrence to interpret it to
announce a new fundamental right). And Lawrence itself settled any doubt over
whether it applies to marriage recognition: Lawrence plainly said that it d[id] not
involve whether the government must give formal recognition to any relationship
that homosexual persons may enter. 539 U.S. at 578. The Kitchen majority ignored
14
that massive disclaimer.
Finally, Kitchen mistakenly deduced a right to same-sex marriage from general
statements in Lawrence and Casey protecting personal decisions relating to
marriage and personal choices central to personal dignity and autonomy.
Kitchen at *21 (quoting Lawrence, 539 U.S. at 574; Casey, 505 U.S. at 851). The
majoritys impressionistic analysis, however, failed to heed the Supreme Courts
more rigorous standards for finding a fundamental right. The Court requires that
an asserted right be supported, not by abstractions, but by concrete examples
involving fundamental rights found to be deeply rooted in our legal tradition.
Glucksberg, 521 U.S. at 722. The Court has specifically rejected the notion that
fundamental rights may be simply deduced from abstract concepts of personal
autonomy. Id. at 724. Indeed, with respect to Caseys autonomy language, the
Court has issued this caution: That many of the rights and liberties protected by
the Due Process Clause sound in personal autonomy does not warrant the sweeping
conclusion that any and all important, intimate, and personal decisions are so
protected and Casey did not suggest otherwise. Id. at 727-28 (citation omitted).
The Kitchen majority relied on Casey and Lawrences broad language to do
precisely what Glucksberg cautioned courts not to do. As Judge Kelly explained, the
majority mistakenly expound[ed] on how other substantive due process and privacy
concepts, including personal autonomy, dignity, family relationships, reproductive
rights, and the like, are the antecedents and complements of same-gender
marriage. Kitchen at *37 (Kelly, J., dissenting); see also, e.g., Jackson, 884
15
F.Supp.2d at 1096 (In describing the asserted fundamental right, the Supreme
Court has eschewed breadth and generality in favor of narrowness, delicacy, and
precision.) (quoting Log Cabin Republicans, 658 F.3d at 1169).
5
The Kitchen
majoritys analysis is not the restrained methodology called for by the Supreme
Courts due process cases. Glucksberg, 521 U.S. at 721.
*****
In sum, the Court should reject the Kitchen majoritys erroneous and overbroad
due process analysis. Instead, the Court should conclude that the Due Process
Clause does not protect a fundamental right to marry someone of the same sex
because that right is not deeply rooted in this Nations history and tradition. Id.
II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS
COMPELLED SPEECH CLAIM.
Plaintiffs in No. 14-327 claim that having to file a Louisiana tax return
designated as single violates the First Amendment by compelling them to deny
their marital status. Doc. 1 (No. 14-327), at 123-131. This novel claim has no
merit because this tax filing requirement regulates conduct, not speech, and
therefore does not implicate the First Amendment compelled speech doctrine at all.
Louisiana residents (and certain non-residents) who are required to file a federal
individual tax return must file a state return in accordance with Louisiana law. LA.

5
The Kitchen majority suggested Lawrence is relevant to same-sex marriage because the
opinion alluded to marriage. Kitchen at *21. That misreads the decision. Lawrence simply
repeated Caseys list of protected personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. 539 U.S. at 574 (citing
Casey, 505 U.S. at 851). Lawrence never suggested every decision related to these broad
topics is ipso facto protected by due process. If there were any doubt, Lawrence expressly
disclaimed any application to marriage recognition. Kitchen at *37 (Kelly, J., dissenting).
16
R.S. 47:101(A)(1),(3); 47:31. Louisiana allows a husband and wife the option of
filing a single return jointly. Id. 47:101(B)(1); see also id. 47:293(6) (providing
that, for any taxable year, a husband and wife may file a joint income tax return).
After Windsor, the IRS announced it would treat married same-sex couples as
married for federal tax purposes regardless of their state of domicile. IRS Revenue
Ruling 2013-17. The Louisiana Department of Revenue then issued a bulletin
stating that, [i]n compliance with the Louisiana Constitution, the Department
shall not recognize same-sex marriages when determining filing status. Revenue
Bulletin No. 13-024; Doc. 86-26. Accordingly, the Department issued these
instructions for the individual income tax form (Form IT-540):
Individuals who entered into a same-sex marriage in another state
cannot file a Louisiana income tax return using a tax status of married
filing jointly or married filing separately. In the case of same-sex
individuals who are considered married for federal tax purposes:
Each individual must file a separate single, qualified head of
household or qualifying widow(er) Louisiana tax return.
Taxpayers must take the income on the federal joint tax return
and allocate it between the taxpayers for use on their single,
head of household, or qualifying widow(er) state tax return.
Items of income must be allocated to the taxpayer who actually
earned the income.
No amended returns for past years will be permitted to change
filing status.

Doc. 86-27 at 2, 3. Plaintiffs argue that these instructions unconstitutionally compel
them to affirm Louisianas favored viewpoint regarding same-sex marriage and to
deny his or her marital status. Doc. 1 (No. 14-327), at 128. They are mistaken.
The First Amendment prohibits the government from telling people what they
must say. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S.
17
47, 61 (2006) (FAIR) (emphasis added). For instance, a state may not require
schoolchildren to recite the Pledge of Allegiance or salute the flag, West Virginia Bd.
of Ed. v. Barnette, 319 U.S. 624, 642 (1943), nor may it force motorists to display the
state motto on their license plates. Wooley v. Maynard, 430 U.S. 705, 717 (1977).
This compelled speech doctrine, however, does not apply to regulation of conduct,
unless the conduct is inherently expressive. FAIR, 547 U.S. at 64; see also, e.g.,
Voting for America, Inc. v. Steen, 732 F.3d 382, 388 (5th Cir. 2013) (noting only
conduct that is inherently expressive is entitled to First Amendment protection)
(quoting FAIR, 547 U.S. at 66).
By requiring plaintiffs to file single tax returns, Louisiana regulates conduct,
not speech. The filing requirement affects what plaintiffs must do not what they
may or may not say. FAIR, 547 U.S. at 60. They are required to make a designation
on a tax form which, like all tax records, is simply an instrument used by the
Department in the administration and enforcement of [Louisiana] tax laws. LA.
R.S. 47:1508(A)(1). The form is not a vehicle for expression. Information on tax
forms, for instance, is kept strictly confidential.
6
Louisiana does not require
plaintiffs returns to be designated as single in order to make plaintiffs affirm
anything contrary to their own views. It does so only because Louisiana must
operate its tax system in accordance with its own laws, which do not recognize
same-sex marriages for purposes of tax filing status.

6
See LA. R.S. 47:15(5) (affording taxpayers [t]he right to strict confidentiality of their
tax records); id. 47:1508(A)(1) (providing no person shall divulge or disclose any
information obtained from [Department of Revenue] records and files except in the
administration and enforcement of [Louisiana] tax laws).
18
Even assuming that designating a tax form as single requires plaintiffs to
affirm anything at all, the designation simply affirms the legal status quo that
Louisianas tax system does not recognize out-of-state same-sex marriages.
Regardless, the form plainly does not require plaintiffs to affirm Louisianas
favored viewpoint regarding same-sex marriage or to deny [their] marital status.
Doc. 1 (No. 14-327), at 128. The opposite is true. The forms instructions
acknowledge in bold print that some same-sex individuals [ ] are considered
married for federal tax purposes, because they entered into a same-sex marriage
in another state. Doc. 86-27 at 2, 3. Both facts are true, and neither the
instructions nor the form require anyone to deny them.
Furthermore, even if one thought that the act of designating a tax return as
single involved protected speech, that speech would be plainly incidental to the
[tax systems] regulation of conduct and so would still fail to implicate the First
Amendment. FAIR, 547 U.S. at 62; see also Steen, 732 F.3d at 389 (noting the
[Supreme] Court has repeatedly explained that non-expressive conduct does not
acquire First Amendment protection whenever it is combined with another activity
that involves protected speech). As the Supreme Court explained in FAIR, it has
never been deemed an abridgment of freedom of speech to prescribe certain
conduct merely because the conduct was in part initiated, evidenced, or carried out
by means of language, either spoken, written, or printed. 547 U.S. at 62 (quoting
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).
Confirming these conclusions, the Fifth Circuit recently agreed with the Eighth
19
Circuit that compelled disclosure of information on a tax form is not compelled
speech under the First Amendment. See United States v. Arnold, 740 F.3d 1032,
1035 (5th Cir. 2014). Rejecting a challenge to a sex offender registration
requirement, Arnold adopted the reasoning of an Eighth Circuit case, United States
v. Sindel, which held that required disclosure on a tax form is not compelled speech:
In United States v. Sindel, 53 F.3d 874 (8th Cir. 1995), albeit in a
different context, the court rejected a claim that compelled disclosure
of information on an IRS form was unlawful compelled speech: There
is no right to refrain from speaking when essential operations of
government require it for the preservation of an orderly societyas in
the case of compulsion to give evidence in court. Id. at 878.

Arnold, 740 F.3d at 1034-35 (additional quotation omitted). Applying Sindel, the
Fifth Circuit concluded that by requiring sex offender registration, a state conducts
an essential operation[ ] of [the] government, just as it does when it requires
individuals to disclose information for tax collection. Arnold, 740 F.3d at 1035
(quoting Sindel, 53 F.3d at 878) (emphasis added).
Arnold also confirmed that this result was entirely consistent with the Supreme
Courts compelled speech precedents. See Arnold, 740 F.3d at 1033-34 (discussing
Barnette and Wooley). As Arnold explained, requiring such disclosures does not
implicate the compelled speech doctrine because it does not forc[e] an individual,
through his speech, to affirm a religious, political [or] ideological cause[ ] that the
individual did not believe in, nor does it forc[e] an individual, as part of his daily
life ... to be an instrument for fostering public adherence to an ideological point of
view he finds unacceptable. Arnold, 740 F.3d at 1034 (internal citations omitted).
For the same reasons, requiring plaintiffs to designate their tax return in a
20
particular manner also does not violate the compelled speech doctrine. Instead of
compelling speech, the filing requirement is a regulation of conduct necessary to the
essential operations of government. Id.
Finally, there is nothing inherently expressive about filing a tax return that
would trigger the compelled speech doctrine. See, e.g., Steen, 732 F.3d at 388 (noting
that, [i]n [FAIR], the Supreme Court underscore[d] that only conduct that is
inherently expressive is entitled to First Amendment protection). Filing a tax
return is nothing like destroying a draft card or burning a flag, activities the
Supreme Court has recognized as inherently expressive for First Amendment
purposes. See, e.g., United States v. OBrien, 391 U.S. 367, 376 (1968) (destroying
draft cards can be symbolic speech under First Amendment); Texas v. Johnson,
491 U.S. 397, 406 (1989) (burning American flag was expressive conduct meriting
First Amendment protection). Indeed, in contrast to those activities, the Supreme
Court has recognized that refusing to pay income taxeseven if accompanied by
the objectors express disapprovaldoes not implicate the First Amendment. See
FAIR, 547 U.S. at 66. A fortiori, the desire not to use a designation on a tax form
also fails to implicate any speech. The use of a particular tax designation simply
lack[s] the expressive quality of a parade, a newsletter, or the editorial page of a
newspaper, and is therefore not compelled speech. Id. at 64.
*****
In sum, requiring the use of a particular filing status for tax purposes does not
tell[ ] [plaintiffs] what they must say within the meaning of the First Amendment.
21
Id. at 61. It regulates plaintiffs conduct, not their speech. Louisianas tax filing
requirement therefore does not implicate the compelled speech doctrine at all.
Admittedly, plaintiffs object to the distinction between man-woman and same-sex
marriages that underlies the filing requirement. But whether that distinction is
constitutional depends on the Courts resolution of plaintiffs equal protection and
due process claims. It has nothing to do with the plaintiffs right not to speak. As a
party invoking the First Amendments protection, [plaintiffs] have the burden to
prove that it applies. Steen, 732 F.3d at 388 (citation omitted). They have not done
so here, and the Court should therefore reject their compelled speech claim.
CONCLUSION
As everyone knows, there has been a recent and remarkable outpouring of
judicial decisions striking down state marriage laws. In these decisions, the citizens
of 34 statesabout 200 million peoplehave been called barking crowds (Geiger
v. Kitzhaber, __ F.Supp.2d __, 2014 WL 2054264 at *14 (D. Ore. May 19, 2014)), and
have been compared to those who believed that racial mixing was just as unnatural
and antithetical to marriage as homosexuality (Wolf v. Walker, __ F.Supp.2d __,
2014 WL 2558444 at *18 (W.D. Wis. June 6, 2014)). They have been told that their
views about marriage are rooted in unlawful prejudice (Bostic v. Rainey, 970
F.Supp.2d 456, 460 (E.D. Va. 2014)), and that their state laws defining marriage as
a man-woman union achieve[ ] the same result as laws banning interracial
marriage (Kitchen v. Herbert, 961 F.Supp. 1181, 1215 (D. Utah 2013)). They have
been instructed that [w]e are a better people than what these laws represent, and
it is time to discard them into the ash heap of history. Whitewood v. Wolf, __
22
F.Supp.2d __, 2014 WL 2058105 at *16 (M.D. Pa. May 20, 2014).
The views expressed in those opinions are, no doubt, sincere. But they forget the
principle that our Constitution is made for people of fundamentally differing
views. Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting). In
recent times, states have engaged in a deliberative process that enable[s] [their]
citizens to discuss and weigh arguments for and against same-sex marriage.
Windsor, 133 S. Ct. at 2689. That process, as it stands today, reflects the differing
views of the American people about the meaning of marriage: a minority of states
have enlarged the definition to include same-sex couples, while most have not. The
recent decisions striking down marriage laws, however, wrongly insist that [this]
difficult question of public policy must be taken from the reach of the voters, and
thus moved from the realm of public discussion, dialogue, and debate. Schuette v.
Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014) (plurality op. of
Kennedy, J.). Those decisions do not properly enforce the Constitution; instead, they
demean[ ] the democratic process. Id. They do not expand freedom; they reduce it.
The decision of Louisianas citizens in 2004 to retain the definition of marriage
as a man-woman union was without doubt a proper exercise of [their] sovereign
authority within our federal system, all in the way that the Framers of the
Constitution intended. Windsor, 133 S. Ct. at 2692. Therefore, defendants
respectfully ask the Court to grant summary judgment in favor of defendants and
against plaintiffs on all of their claims.

23
Respectfully submitted,
s/ S. Kyle Duncan
S. Kyle Duncan, 25038, T.A.
Special Assistant Attorney General
Louisiana Department of Justice
P.O. Box 94005
Baton Rouge, LA 70804
Phone: (202) 714-9492
Fax: (225) 326-6098
kduncan@duncanpllc.com

J. Michael Johnson
Law Offices of Mike Johnson, LLC
2250 Hospital Drive
Beene Office Park, Suite 248
Bossier City, LA 71111
Phone: (318) 658-9456
Fax: (318) 658-9605

Attorneys for Defendants

24
CERTIFICATE OF SERVICE
I hereby certify that on July 16, 2014, I electronically filed the foregoing with the
Clerk of Court by using the CM/ECF system, which will be electronically served on
all counsel of record.
/s S. Kyle Duncan
S. Kyle Duncan, Attorney for Defendants
TABLE OF CONTENTS

Defendants Supplemental Brief ...................................................................................... 1

I. The Constitution does not compel Louisiana to adopt same-sex
marriage ................................................................................................................. 2

A. Louisiana has sovereign authority over its domestic relations law ............... 2

B. The Tenth Circuit mistakenly created a due-process right to marry
someone of the same sex .................................................................................. 4

1. Kitchen dismisses federalism as a prudential concern ........................... 4

2. Kitchen misapplies the Supreme Courts right-to-marry cases ................ 7

3. Kitchen misapplies the Supreme Courts right-to-privacy cases .............. 12

II. Defendants are entitled to summary judgment on plaintiffs compelled
speech claim ........................................................................................................... 15

Conclusion ......................................................................................................................... 21

Certificate of Service ......................................................................................................... 24

Case 2:13-cv-05090-MLCF-ALC Document 120-1 Filed 07/16/14 Page 1 of 5
2
TABLE OF AUTHORITIES

Cases
Bishop v. United States,
962 F.Supp.2d 1252 (N.D. Okla. 2014) ..................................................................... 7

Bond v. United States,
131 S. Ct. 2355 (2011) ............................................................................................... 6

Bostic v. Rainey,
970 F.Supp.2d 456 (E.D. Va. 2014) .................................................................... 6, 21

Collins v. Harker Heights,
503 U.S. 115 (1992) ................................................................................................... 9

Compassion in Dying v. Washington,
79 F.3d 790 (9th Cir. 1996) ..................................................................................... 11

Cruzan v. Director,
497 U.S. 261 (1990) ................................................................................................. 11

Geiger v. Kitzhaber,
__ F.Supp.2d __, 2014 WL 2054264 (D. Ore. May 19, 2014) ................................. 21

Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949) ................................................................................................. 18

Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................................. 12

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ........................................................................................ 13

Jackson v. Abercrombie,
884 F.Supp.2d 1065 (D. Hawaii 2012) ................................................. 8, 9, 10, 14-15

Kitchen v. Herbert,
__ F.3d __, 2014 WL 2868044 (10th Cir. June 25, 2014) ............................... passim

Kitchen v. Herbert,
961 F.Supp.2d 1181 (D. Utah 2013) ................................................................... 6, 21

Latta v. Otter,
__ F.Supp.2d __, 2014 WL 1909999 (D. Idaho 2014) ............................................... 7
3

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................... 12, 13, 14, 15

Lochner v. New York,
198 U.S. 45 (1905) ................................................................................................... 22

Lofton v. Secy of Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) ................................................................................. 13

Log Cabin Republicans v. United States,
658 F.3d 1162 (9th Cir. 2011) ........................................................................... 10, 15

Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................................. 7, 8, 11

Planned Parenthood of Pa. v. Casey,
505 U.S. 833 (1992) ........................................................................................... 12, 14

Reno v. Flores,
507 U.S. 292 (1993) ................................................................................................... 9

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
547 U.S. 47 (2006) ........................................................................... 16, 17, 18, 20, 21

Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014) ............................................................................................. 22

Texas v. Johnson,
491 U.S. 397 (1989) ................................................................................................. 20

Turner v. Safely,
482 U.S. 78 (1987) ..................................................................................... 7, 8, 10, 11

United States v. Arnold,
740 F.3d 1032 (5th Cir. 2014) ........................................................................... 19, 20

United States v. OBrien,
391 U.S. 367 (1968) ................................................................................................. 20

United States v. Sindel,
53 F.3d 874 (8th Cir. 1995) ..................................................................................... 19

4
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... passim

Voting for America, Inc. v. Steen,
732 F.3d 382 (5th Cir. 2013) ................................................................. 17, 18, 20, 21

Washington v. Glucksberg,
521 U.S. 702 (1997) ......................................................................................... passim

West Virginia Bd. of Ed. v. Barnette,
319 U.S. 624 (1943) ........................................................................................... 17, 19

Whitewood v. Wolf,
__ F.Supp.2d __, 2014 WL 2058105 (M.D. Pa. May 20, 2014) ......................... 21-22

Wolf v. Walker,
__ F.Supp.2d __, 2014 WL 244844 (W.D. Wis. June 6, 2014) ....................... 6, 7, 21

Wooley v. Maynard,
430 U.S. 705 (1977) ........................................................................................... 17, 19

Zablocki v. Redhail,
434 U.S. 374 (1978) ..................................................................................... 7, 8, 9, 11

Statutes
Defense of Marriage Act,
110 Stat. 2419 ............................................................................................................ 2

LA. R.S. 47:15 .............................................................................................................. 17

LA. R.S. 47:31 .............................................................................................................. 15

LA. R.S. 47:101 ...................................................................................................... 15, 16

LA. R.S. 47:293 ............................................................................................................ 16

LA. R.S. 47:1508 .......................................................................................................... 17

Rules
FED. R. CIV. PROC. 56 ...................................................................................................... 1

Constitutional Provisions
U.S. Const. art. IV .......................................................................................................... 1
5

U.S. Const. amend. I .................................................................................... 15, 16, 20-21

U.S. Const. amend. XIV .............................................................................................. 2, 3

Other Authorities
IRS Revenue Ruling 2013-17 ....................................................................................... 17

Louisiana Revenue Bulletin No. 13-024 ...................................................................... 17


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