The Current State of the Law in Louisiana
Louisiana’s Public Policy Regarding Same-Sex Marriage and Legitimacy of Children
Whenever matters of same-sex marriage arise, politicians and conservatives in Louisiana quickly reference Louisiana’s Constitution and the Civil Code, which ban and make it against public policy to enter into or acknowledge same-sex marriage. Louisiana’s public policy argument against same-sex marriage is primarily to protect their civil law tradition of marriage. The consensus from the senate floor was the civil law tradition had to be protected by more than just the Civil Code to continue the historic tradition of marriage existing only between a man and woman, and the way to accomplish this was to have the language added to the state constitution. Furthermore, supporters of the amendment argue it protects traditional marriage from all future threats. More so, supporters argue that the language in the amendment falls in line with the language of other civil code articles relating to marriage. For example, La. C.C. Art. 86 defines marriage as a civil contract entered by a man and woman, La. C.C. Art. 89 makes same-sex marriage an impediment, and La. C.C. Art. 94 states that a marriage with an impediment is an absolute nullity. Outside of the traditional and legal arguments, many anti-marriage equality supporters have religious, biological, and parenting arguments against same-sex marriage. A number of cases have relied on these arguments against same-sex marriage.
Legitimacy of Children
Louisiana also has a historically rooted public policy regarding legitimacy of children, reasoning that it is for protection and promotion of the family unit. Under Louisiana law, unmarried couples are not required to be listed on a child’s birth certificate. Furthermore, an unmarried couple is not permitted to receive a reissued birth certificate bearing both parties names as parents, regardless of an in-state or out-of-state adoption. Louisiana law provides a legal remedy for unmarried biological heterosexual parents who desire to be listed on their child’s birth certificate, if both parents voluntarily sign an agreement of paternity or by judicial decision. Unfortunately, this option is not extended to same-sex parents.
Louisiana has a presumption if a couple is married then the child born during the marriage is the husbands child. However, Louisiana allows dual paternity of a child meaning the child can have two fathers, biological and legitimate, the biological father provides support for the child while the legitimate father maintains his relationship with the child. The Supreme Court of Louisiana addressed this issue in Smith v. Cole, the Court affirmed the appellate courts ruling, and under dual paternity, the biological father had an obligation to provide support for his child while the legitimate father remained in his role. The Court reasons, a biological parent is not availed of a support obligation because...