Louisiana Democratic Governor John Bel Edwards. | MARIE CONSTANTIN/ OFFICE OF THE GOVERNOR
BY ARTHUR S. LEONARD | A trial judge in Louisiana ruled on December 14 that an Executive Order by Governor John Bel Edwards forbidding anti-LGBT discrimination in the executive branch of the state government and by state contractors violates the Louisiana Constitution and its laws.
Judge Todd W. Hernandez, of the 19th Judicial District in East Baton Rouge, said that Edwards' order violates the separation of powers established by the Louisiana Constitution and is outside the governor’s authority to “faithfully execute the laws.” Edwards, a Democrat, promptly announced that he would appeal this ruling.
Hernandez’s decision came in a lawsuit filed by the Louisiana Department of Justice and Attorney General Jeff Landry, a self-described Tea Party Republican, who challenged the governor’s authority to extend anti-discrimination rules to categories not already covered by state law. In an indication that Edwards and Landry are engaged in a political turf battle, likely related to their differing political philosophies, Hernandez also ruled on a countersuit filed by the governor, in which Edwards challenged Landry’s refusal to approve attorneys who were being retained by executive branch agencies to represent them in litigation.
State judge rules Democrat John Bel Edwards exceeded his constitutional powers
Landry argued that Edwards’ order, issued shortly after he took office early this year, inappropriately establishes “a newly created protected class of persons not recognized by current law.” Landry also contended that the restrictions placed on state contractors violated the Commerce Clause of the US Constitution and “certain First Amendment rights and privacy interest rights established by the Louisiana and United States Constitutions,” according to Hernandez’s opinion.
Landry’s reference to “class of persons” is inaccurate, since Edwards’ order protects everybody against discrimination because of sexual orientation or gender identity, regardless of whether they are gay or non-gay, transgender or cisgender.
Hernandez, however, ruled that Edwards’ order was “unlawful” because it “creates new and/ or expands upon existing Louisiana law as opposed to directing the faithful execution of the existing laws of this state.” His action, the judge found, was “an unlawful usurp [sic] of the constitutional authority vested only in the legislative branch of the government.”
Hernandez did not cite any prior Louisiana court decisions to support his ruling, likely because the state courts have never before addressed this question. Instead, he embraced his literal reading of the Louisiana Constitution, which “declares the office of the Governor as the ‘Chief Executive Officer’ of the State of Louisiana and he/she shall see that the laws of this state are faithfully executed.” Hernandez also cited a statute that he said provides that “the sole purpose for the issuance of an executive order is to provide the office of the Governor with a mechanism to ‘faithfully execute the laws of the State of Louisiana.’”
Hernandez did not, however, accurately quote that statute, which actually reads: “The authority of the governor to see that the laws are faithfully executed by issuing executive orders is recognized.” This is not, on its face, restricted to the laws of Louisiana, and the governor’s oath of office –– as well as the attorney general’s –– requires support of both federal and state laws, including the federal and state constitutions, both of which provide “equal protection of the laws” to all people.
In the 1996 Romer v. Evans ruling that struck down Colorado’s Amendment 2 –– a voter initiative that banned the state and its localities from enacting sexual orientation anti-discrimination protections, the US Supreme Court established that such discrimination by the state violates “equal protection of the laws” under the 14th Amendment. Edwards’ order, then, is consistent with his obligation to see that the laws are faithfully executed, although there might be some controversy about extending this to gender identity absent a Romer-type ruling on that ground. So far, the 11th Circuit US Court of Appeals, whose jurisdiction covers Alabama, Florida, and Georgia, is the only appellate bench that has recognized a constitutional equal protection claim by a transgender public employee, but the logic of Romer v. Evans would surely cover such a claim, as well.
But Hernandez concluded that Edwards’ action “extends beyond the lawful parameters of executive order authority and its adoption and implementation is found to be either a creation of new law and/ or an expansion of existing law. In either case, this is a violation of the separation of powers doctrine of the Louisiana Constitution and is an infringement upon the constitutional authority vested solely upon the Legislature of the State of Louisiana.”
The judge rejected Landry’s other constitutional claims, but without explanation.
Turning to the governor’s counterclaim, Hernandez found that Louisiana law specifically authorizes the attorney general to approve or disapprove lawyers being engaged by executive branch agencies, but found that the AG would have no supervisory authority over their work or what positions they take in representing the state.
Hernandez declined to rule on Edwards’ request for a ruling that the office of the governor is superior to the office of the attorney general when a dispute about legal policy arises, finding that there was no actual dispute before the court. To express a view on the governor’s request in the abstract, he concluded, would be akin to rendering an “advisory opinion” beyond the authority of the court.
Edwards’ request for the ruling, however, suggests that aggressive political jockeying likely lies ahead for Louisiana as it proceeds through four years of a Democratic governor and a Tea Party attorney general.