Unconstitutional definition of marriage likely to remain in Louisiana constitution despite rewrite

Rep. Beau Beaullieu, R-New Iberia, is carrying legislation that sets up the framework for a constitutional convention. (Allison Allsop/Louisiana Illuminator)

Republican lawmakers plan to leave in a section of the Louisiana constitution that defines marriage as between one man and one woman during a potential constitutional rewrite despite a U.S. Supreme Court ruling. 

Rep. Beau Beaullieu, R-New Iberia, the lawmaker carrying the legislation calling for a constitutional convention, said his conservative colleagues want to leave in the “Defense of Marriage” section just in case the landmark 2015 civil rights case Obergefell v. Hodges, which legalized same-sex marriage nationwide, is overturned. 

“I’ve had requests to leave it in. I haven’t had any requests to remove it,” Beaullieu said in an interview with the Illuminator. Beaullieu declined to name who requested to leave the unconstitutional section in, but said he received “many” requests to do so. 

About 62% of Louisianians support same-sex marriage, according to a 2022 survey from the nonpartisan Public Religion Research Institute, which also found approximately half of Republicans nationwide support same-sex marriage. 

Lawmakers are currently discussing Beaullieu’s House Bill 800 that would assemble a constitutional convention, with 144 legislators and 27 delegates appointed by the governor meeting to make changes to the document. 

Beaullieu has said the delegates would use the convention to move some portions of the constitution into statute, which would make it substantially easier for legislators to change them. 

Neither Beaullieu or Republican Gov. Jeff Landry, who is the driving force behind the convention, has been forthcoming about what they want to remove from the constitution, although they have promised to wall off public school funding protections and the homestead exemption property tax break in the constitution. While lawmakers have billed this as a limited convention to “refresh” the constitution, delegates likely would have authority to change anything they wanted. 

Kate Kelly, a spokesperson for Landry, did not respond to a request for comment for this story.

Article XII Section 15 of the 1973 constitution

Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.

The Louisiana State Law Institute, which is required by law to provide a report on unconstitutional and preempted state laws to the Legislature every other year, has included this portion of the constitution in every report since 2016. 

The Institute has recommended the Legislature pass a constitutional amendment to the voters to change the definition as not a marriage between one man and one woman, but as between two natural persons. 

While the Legislature has declined to do this, it has instructed new printings of the constitution to include a note regarding the Obergefell decision below the section. 

In Obergefell v. Hodges, the U.S. Supreme Court found that same-sex couples could not be deprived the right to marry under 14th Amendment protections. As a result of this ruling, same-sex couples now have a legal right to marry in every U.S. state. 

After the Obergefell ruling, the U.S. Fifth Circuit Court of Appeals reversed its ruling in Robicheaux v. Caldwell, which in 2014 upheld Louisiana’s ban on same-sex marriage. In the Robicheaux reversal order, the court explicitly stated that the portion of Louisiana’s constitution banning same-sex marriage is unconstitutional. 

Article XII Section 15 was added to the constitution in 2004 after being approved by 78% of voters. The constitutional amendment was proposed by then state Rep. Steve Scalise, who is now the U.S. House majority leader. 

Legislators have made several attempts to repeal this portion of the constitution, most recently in the current legislative session. House Bill 98 by Rep. Mandie Landry, D-New Orleans, was shelved in its first committee hearing. The bill would have complied with the Louisiana Law Institute’s recommendation by defining marriage as “the union of two persons.” 

Landry said she intends to bring up the proposal again if the constitutional convention happens. 

The bill was sidelined at the request of House Speaker Pro Tempore Rep. Mike Johnson, R-Pineville, who argued the Legislature should avoid advancing bills that would put constitutional questions on the ballot in light of the potential constitutional convention. 

Rep. Landry argued it’s important to repeal that section of the constitution not just for symbolic reasons, but because many fear further legal attacks on same-sex marriage. 

“Younger people don’t stay up at night thinking they want to leave here because the Constitution is too long, but they do think about and they do leave because of issues like same sex, marriage, abortion, reproductive issues,” she said. 

Beaullieu’s bill, which calls for a constitutional convention this summer, has received approval from the House of Representatives but has not yet been scheduled for a hearing in the Senate and Governmental Affairs Committee. 

If a convention was held — which is still uncertain due to skepticism from senators — it would take place in three stages: An organizational session to select convention leaders could take place as soon as May 30. Convention committees would then meet in June and July to discuss potential constitutional changes, and wrap up their work by Aug. 1, when the full convention would then meet until Aug. 15. The finished product would then be on a ballot for voter approval at the same time of the presidential election in November. 

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