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UNITED STATES D ISTRICT C OURTE ASTERN DISTRICT OF L OUISIANA

JONATHAN P. R OBICHEAUX , et al. ,

Plaintiffsv.

JAMES D. C ALDWELL , et, al. ,

Defendants

**

**********

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327SECTION F(5)

JUDGE MARTIN L.C. F ELDMANMAGISTRATE MICHAEL NORTH

REF: ALL CASES

*************************************** *

PLAINTIFFS' SUPPLEMENTAL SUMMARY JUDGMENT BRIEF

Plaintiffs submit this supplemental brief in accordance with the Court's Order dated

June 26, 2014 (Rec. Doc. 114). The brief addresses (1) why the Louisiana Secretary of

Revenue's instruction that validly married same-sex couples must declare themselves as single is

a form of unconstitutional compelled speech and (2) why Louisiana's refusal to license same-sex

marriages is unconstitutional. 1

I. Secretary Barfield's Instruction that Plaintiffs Must Disclaim Their Married StatusViolates Their Free Speech Rights.

The Supreme Court's First Amendment cases regarding compelled speech establish that

"freedom of speech prohibits the government from telling people what they must say." Agency

for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc. , 133 S. Ct. 2321, 2327 (2013); Rumsfeld v.

Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 61 (2006). Secretary Barfield has

instructed married same-sex couples that they must certify that they are single on their Louisiana

state income tax returns despite a deep spiritual and emotional belief in the inviolability of their

1 The Plaintiffs in Case No. 14-97 have moved to dismiss their claim brought under theFull Faith and Credit Clause. Rec. Doc. 119. Therefore Plaintiffs have not briefed thatissue.

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marriages. The State cannot compel citizens to engage in such "evident hypocrisy." Agency for

Int'l Dev. , 133 S. Ct. at 2331. Thus, in addition to violating Plaintiffs' equal protection and due

process rights, the Secretary's requirement that Plaintiffs certify the nonexistence of their

marriages violates their right to free speech.

A. The Undisputed Facts Demonstrate that the Secretary Requires Plaintiffs toDisclaim Their Marriages on Their Tax Returns, Which Imposes Financialand Stigmatic Harms.

Louisiana taxpayers must affirm that their tax returns are accurate. The signature line of

the return form requires a taxpayer to certify the following statement: "I declare that I have

examined this return, and to the best of my knowledge, it is true and complete." A sample

Louisiana individual income tax form is attached hereto as Exhibit 1.

That the Secretary, despite this certification requirement, instructs same-sex couples to

disclaim their marriages on their tax forms is uncontroverted. Defs.' Answer, Rec. Doc. 76 at

126 (quoting Louisiana Department of Revenue Information Bulletin No. 13-024). Nor can it

reasonably be controverted that Plaintiffs and other married gay and lesbian couples sustain harm

due to the Secretary's enforcement of those instructions. For example, after Plaintiffs Henry

Lambert and Carey Bond filed a joint tax return in 2012 stating that they were married, the

Secretary rejected the return and assessed penalties and interest. Lambert Decl., Rec. Doc. 86-17

at pp. 4-5, 14-20. The Secretary wrote that "the Louisiana Constitution does not recognize

same-sex marriage" and that he was bound to deny Plaintiffs' returns. See Rec. Doc. 86-17 at

p. 29.

The Secretary's refusal to recognize Plaintiffs' marriages penalizes them in two ways.

First, they face differential tax treatment because they are categorized as having a single filing

status. See, e.g., Notice of Adjustment for Plaintiffs Bond & Lambert, Rec. Doc. 86-17 at p. 9

(assessing an additional $14,302 in state income taxes). Moreover, Plaintiffs face additional


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expense due to the compliance burden of having to prepare additional federal returns, not to be

filed, in order to complete their state income tax returns. See, e.g., Malissa Brettner Decl., Rec.

Doc. 85-15 at 20 ("I was forced to deny the existence of our marriage on our tax returns,

forcing us to incur extra expenses and stress associated with preparing 'dummy' individual

returns upon which our Louisiana state returns can be calculated.").

But aside from the financial harms, the Secretary's requirement that married gays and

lesbians disclaim their marital status imposes a stigma and humiliation. See, e.g., Gates Decl.,

Rec. Doc. 86-24 at 19 ("when I am asked to identify my marital status on official forms, I am

forced to declare that I am single when I am not. . . .These experiences are insulting to mydignity and the dignity of our family."). Louisiana should not be permitted to force Plaintiffs to

make a statement that disclaims the existence of their marriages and families and that perpetuates

the second-class treatment of their marriages.

B. The Secretary Cannot Require Plaintiffs to Disclaim their Marriages Whenthe State's Ends Could Be More Narrowly Achieved.

Louisiana may disapprove of the marriages of gays and lesbians, but the State cannot

constitutionally require the spouses to reiterate that governmental viewpoint. The government

cannot compel an individual "to be an instrument for fostering public adherence to an ideological

point of view he finds unacceptable." Wooley v. Maynard , 430 U.S. 705, 721 (1977).

These principles flow directly from West Virginia State Board of Education v. Barnette ,

319 U.S. 624 (1943), and Wooley . In Barnette , the Court held that a state could not require

schoolchildren to recite the Pledge of Allegiance. In Justice Jackson's famous words, "If there is

any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein." Id. at 642. Similarly, in Wooley , the Court


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held that the state could not compel a citizen to display a governmental message on his license

plate. 430 U.S. 705. "The First Amendment protects the right of individuals to hold a point of

view different from the majority and to refuse to foster . . . an idea they find morally

objectionable." Id. at 715. Fairly applied, these cases mean that the Secretary cannot require

Plaintiffs to certify a statement in which they are required to deny their marriages. It does not

matter that Plaintiffs could make contrary statements to others that they are married. The

government cannot compel citizens to say "words without belief" or make a "gesture barren of

meaning." Barnette , 319 U.S. at 633. The government cannot force citizens to lie or to make

insincere or inconsistent statements. Agency for Int'l Dev. , 133 S. Ct. at 2331.

Even though the tax returns are not generally publicly available documents or

affirmations in the nature of a schoolhouse pledge or a license plate, that does not mean that

Barnette and Wooley do not apply. Indeed, just this month the Supreme Court recently

recognized that requiring execution of a governmental form can infringe citizens' fundamental

First Amendment rights. Wheaton College v. Burwell, 573 U.S. ___ (2014), No. 13A1284

(July 3, 2014) (on application for injunction, granting religious college an exemption from

completion of a government form); see also Oliver v. State Tax Comm'n , 37 S.W.3d 243, 253

(Mo. 2001) (holding that an atheist taxpayer was entitled to a declaratory judgment providing

that he could cross "so help me God" from a Missouri tax form). The First Amendment is

infringed when a citizen must deny the existence of her family relationships in order to comply

with her tax obligations.

Earlier this year, in a case of first impression regarding the constitutionality of sex

offender registries, the Fifth Circuit noted that requiring the disclosure of information of

information necessary for the "essential operation of government," including tax collection, does


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not run afoul of Barnette and Wooley. United States v. Arnold, 740 F.3d 1032, 1035 (5th Cir.

2014) (citing United States v. Sindel , 53 F.3d 874 (8th Cir. 1995)). But the Arnold court noted

that sex offender registration did not require the plaintiff to "affirm a religious, political, or

ideological message." Id. at 1035. Here, by contrast, the Secretary's requirement is more than a

viewpoint-neutral requirement for governmental disclosure. The Secretary requires that married

gays and lesbians affirmatively disclaim the existence of their marriages and effectively endorse

Louisiana's preferred opinion regarding same-sex marriages.

In Agency for International Development, the Court addressed compelled speech as a

condition of governmental funding. In the Leadership Act, passed by Congress to combat theworld HIV/AIDS crisis and to fund nongovernmental organizations that assisted in that effort,

Congress required that funding recipients "have a policy explicitly opposing prostitution and sex

trafficking." 133 S. Ct. at 2324. A group of funding recipients challenged the policy provision

of the Leadership Act because adhering to the policy statement could diminish the effectiveness

of some of their programs in other nations. Id. at 2326. The Court found that the policy

requirement was unconstitutional because it went beyond the bounds of Congress's spending

power to compel recipients to adopt a preferred governmental viewpoint. Id. at 2330 ("By

requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the

limits of the federally funded program to defining the recipient."). If it is unconstitutional for the

government to require a funding recipient to adopt a particular viewpoint in order to receive

government funds, then almost by definition it is also unconstitutional for the government to

require citizens to adopt a particular view in order to meet their tax obligations and pay funds to

the government. Accordingly, the Court should find that the Secretary's current tax forms


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compel speech of Plaintiffs and other validly married same sex couples, thus violating their First

Amendment rights.

C. The Secretary Has Made No Effort to Accommodate Plaintiffs' First

Amendment Rights.Because Plaintiffs' First Amendment interests are implicated, Louisiana bears the burden

to prove why it may penalize Plaintiffs for declining to speak in the manner that the State prefers.

United States v. Playboy Entm't Grp., Inc. , 529 U.S. 803, 816 (2000) ("When the Government

restricts speech, the Government bears the burden of proving the constitutionality of its

actions."). Content-based restrictions on speech are subject to strict scrutiny. Id. at 812.

The Secretary cannot satisfy strict scrutiny because there is no reason that his tax forms

are not modifiable. Indeed, in 2013 the Secretary altered the tax instructions to insert bold

language imposing burdens on married gays and lesbians. See 2013 Form IT-540 Instructions,

Rec. Doc. 86-27 at p. 3. Plaintiffs cannot imagine a conceivable reason that the Secretary would

not be able to modify the Louisiana individual income tax form to provide a space where married

gay and lesbian couples could choose a filing status that respects their sincere and fundamental

belief in the legal validity of their marriages and familieseven if Louisiana then taxes them at

the same rate as single taxpayers. Of course, Louisiana's taxation of married gays and lesbians at

a different rate than married heterosexual couples only highlights the equal protection problem

created by its refusal to recognize Plaintiffs' marriages.

The Secretary's requirement that married gays and lesbians identify as single is

compelled speech in violation of the First Amendment and the Supreme Court's compelled

speech precedent.


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II. Louisiana Laws Barring Same-Sex Marriages Violate Equal Protection and DueProcess.

For many of the same reasons that Louisiana's refusal to recognize valid out-of-state

same-sex marriages violates equal protection and due process, Louisiana's refusal to permit gays

and lesbians to marry within the state is also unconstitutional. The unmarried plaintiffs in Case

No. 14-97, Robert Welles and Garth Beauregard, reside in Louisiana, have been in a committed

relationship for twenty-four years, and wish to marry among their friends and families.

Louisiana marriage laws deny Rob and Garth this most basic freedom by barring them from civil

marriage. La. Const. art. XII, 15; La. Civ. Code arts. 86 (defining marriage as between a man

and a woman) and 89 (proving an impediment to marriage for two persons of the same sex).

Plaintiffs' exclusion from marriage has caused them both tangible and dignitary harmsinjuries

that cannot be justified under the Due Process and Equal Protection Clauses.

A. Rob and Garth Would Be Permitted to Marry But for the Fact that They Arethe Same Sex.

Rob and Garth live in New Orleans. They wish to marry each other in Louisiana, where

they have lived for over twenty years. Affidavit of Robert Welles, Rec. Doc. 117-4 at 6;

Affidavit of Garth Beauregard, Rec. Doc. 117-3 at 12. 2 Being able to lawfully marry one

another in Louisiana would offer them the financial and medical protections that are

automatically given to married couples and ease their minds as they age. Rob and Garth applied

for a marriage license with Defendant Devin George, the State Registrar of Vital Records, but

their application was refused because they are a same-sex couple. Rec. Doc. 117-4 at 5; Rec

Doc. 117-3 at 11.

2 Plaintiffs respectfully refer the Court to the Statement of Material Facts and Affidavits ofRobert Welles and Garth Beauregard, Rec. Doc. 117.


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Louisiana's marriage ban deprives Rob and Garth of the benefits, rights, and

responsibilities available to married couples under state and federal law. These include, but are

not limited to, the right to make health care decisions for an incapacitated spouse; the protection

of the marital privilege; the duty of support and rights regarding child custody and parenting time

with respect to children of the marriage; statutory protections granted to spouses upon death,

including rights to inheritance when spouse dies without a will; and the right to file joint state

income tax returns. They are also harmed by the denial of federal benefits that were made

available to married same-sex couples after Windsor . See Windsor v. United States ,

133 S. Ct. 2675, 2683 (2013).As Justice Kennedy observed in Windsor , when government relegates same-sex couples'

relationships to a "second-tier" status, the government "demeans the couple,"

"humiliateschildren being raised by same-sex couples," deprives these families of equal

dignity, "degrade[s]" them, and causes them countless other harms, all in violation of "basic due

process and equal protection principles." 133 S. Ct. at 2693-95. The Louisiana marriage ban

conflicts with these pronouncements. The marriage ban deprives Plaintiffs and their children of

equal dignity and autonomy in the most intimate sphere of their lives and brands them as inferior

to other Louisiana families, inviting ongoing discrimination in hospital settings, in workplaces,

and elsewhere. There is no conceivable governmental interest served by continuing to exclude

gay and lesbian couples from marriage.

B. Baker v. Nelson Is Not Controlling Precedent Because of DoctrinalDevelopments Since 1972.

Baker v. Nelson, 409 U.S. 810 (1972), does not control the issue of whether

Louisiana's refusal to issue marriage licenses to same-sex couples violates the Fourteenth


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Amendment. In Baker, the Supreme Court summarily dismissed for want of substantial federal

question an appeal from the Minnesota Supreme Court upholding a same-sex marriage ban.

When the Supreme Court issues a summary dismissal for want of a substantial

federal question, the dismissal is to be interpreted as a rejection of the specific challenge raised

in the statement of jurisdiction, and lower courts may not reach opposing conclusions on the

precise issue presented and necessarily decided by those actions. Mandel v. Bradley,

432 U.S. 173, 176 (1977). However, a summary affirmance of a lower court does not carry the

same precedential value as an opinion of the Supreme Court that is issued after briefing and oral

argument on the merits. "Because a summary affirmance is an affirmance of the judgment only,the rationale of the affirmance may not be gleaned solely from the opinion below." Id.

Summary dismissals for want of a substantial federal question do not remain controlling

precedent if later doctrinal developments indicate otherwise. Hicks v. Miranda , 422 U.S. 332,

344 (1975).

Almost all recent court decisions, including the recent decision by the United

States Tenth Circuit Court of Appeals, have determined that Baker is no longer controlling law

because of later doctrinal developments in the Supreme Court's constitutional jurisprudence .3

These developments include: the development of gender as a quasi-suspect classification, Craig

3 Kitchen v. Herbert , No. 13-4178, 2014 U.S. App. LEXIS 11935, at *24 (10th Cir. June25, 2014); Wolf v . Walker , No. 14-cv-64-BBC, 2014 U.S. Dist. LEXIS 77125, at *10-18(W.D. Wis. June 6, 2014); Whitewood v. Wolf , No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS68771, at *14-18 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber , No. 6:13-cv-01834-MC,2014 U.S. Dist. LEXIS 68171, at *8 n. 1 (D. Or. May 19, 2014); Latta v. Otter , No. 1:13-cv-00482-CWD, 2014 U.S. Dist. LEXIS 66417, at *28 (D. Idaho May 13, 2014); DeBoerv. Snyder , 973 F. Supp. 2d 757, 773-774 n. 6 (E.D. Mich. 2014); De Leon v. Perry , 975 F.Supp. 2d 632, 646-48 (W.D. Tex. 2014); Bostic v. Rainey , 970 F. Supp. 2d 456, 470(E.D. Va. 2014); McGee v. Cole , No. 3:13-24068, 2014 U.S. Dist. LEXIS 10864, at *32(S.D. W. Va. Jan. 29, 2014); Bishop v. United States ex rel. Holder , 962 F. Supp. 2d1252, 1277 (N.D. Okla. 2014).


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v. Boren, 429 U.S. 190 (1976); the Court's recognition that gays and lesbians share in

fundamental constitutional rights, including a right to consensual private intimacy, Lawrence v.

Texas, 539 U.S. 558 (2003); and the Court's determination that the Defense of Marriage Act's

definition of marriage that excluded same-sex marriages violated the Fifth Amendment,

Windsor , 133 S. Ct. 2675 (2013). At last year's oral argument in Hollingsworth v. Perry, Justice

Ginsburg also observed that Baker was no longer controlling law. She stated that when Baker

was decided, " The Supreme Court hadn't even decided that gender-based classifications get any kind

of heightened scrutiny[and] same-sex intimate conduct was considered criminal in many States in

1971, so I don't think we can extract much from Baker against Nelson ." Exhibit 2. 4 And as the

Tenth Circuit recently stated, " Baker was decided before the Supreme Court held that 'intimate

conduct with another person . . . can be but one element in a personal bond that is more enduring.

The liberty protected by the Constitution allows homosexual persons the right to make this

choice.'" Kitchen, 2014 U.S. App. LEXIS 11935, at *24 (quoting Lawrence v. Texas , 539 U.S.

558, 567 (2003)).

In Merritt v. Attorney General , No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS

162583 (M.D. La. Nov. 14, 2013), adopting 2013 U.S. Dist. LEXIS 163235, at *2 (M.D. La.

Oct. 2, 2013), Judge Jackson, in dismissing a pro se complaint, adopted a magistrate judge's

report and recommendation that cited Baker for the proposition that states do not have to permit

same-sex marriages. Merritt 's citation to Baker has been criticized by other courts since it was

issued. As the Tenth Circuit noted, the Merritt court did not even consider whether doctrinal

developments had undermined Baker . Kitchen, 2014 U.S. App. LEXIS 11935, at *25; Love v.

4 A complete copy of the transcript is available on the Supreme Courts website athttp://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx.


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Beshear , 2014 U.S. Dist. LEXIS 89119, at *11 n. 8 (W.D. Ky. July 1, 2014) ("The Court does

not find Merritt persuasive, as the viability of Baker was not briefed, and the court did not

clearly state that it was dismissing on Baker grounds."). Merritt' s reliance on Baker is contrary

to the other federal courts that have considered the issue since Windsor. Thus, in light of

doctrinal developments this Court should find that Baker v. Nelson does not control the issues

before the Court.

Finally, the Plaintiffs in Case No. 14-327, Forum for Equality Louisiana, Inc. v.

Barfield, have brought recognition but not licensing claims. If the Court disagrees with the

Plaintiffs and holds that Baker v. Nelson remains controlling law, then it would only bar thelicensing claim brought in Case No. 14-97. A summary dismissal or affirmance is only binding

as to the "specific challenges presented in the statement of jurisdiction." Mandel, 432 U.S. at

176. The Baker court was not presented with an equal protection or due process challenge from

a same-sex couple who was already validly married in another jurisdiction but seeking to have

that marriage recognized in their home state. Nor did Baker address whether a state could

recognize various forms of heterosexual marriages, such as first-cousin marriages, prohibited by

state law, while simultaneously barring all forms of same-sex marriages. Thus, Baker does not

address the questions that are presented by Case No. 14-327, nor by the married plaintiffs in

Case No. 14-97.

C. By Denying Rob and Garth the Right to Marry and Violating their LibertyInterests in Family Integrity and Association, Louisiana's Marriage BanViolates the Due Process Clause.

The parties have already extensively briefed the reasons that Louisiana's refusal to

recognize valid same-sex marriages celebrated elsewhere infringes due process guarantees. See,

e.g., Rec. Doc. 86-1 at 16-20 (Pls.' Mem. Supp. Mot. Partial Summ. J.); Rec. Doc. 100 at 6-7.


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Louisiana's marriage ban also infringes on fundamental liberty interests, including the right to

marry and the right of family integrity and association.

1. The Louisiana Marriage Ban Infringes Unmarried Same-Sex

Couples' Right to Marry.The right to marry is a fundamental right protected by the due process guarantee. See,

e.g., Webster v. Reproductive Health Servs ., 492 U.S. 490, 564-65 (1989) ("[F]reedom of

personal choice in matters of marriage and family life is one of the liberties protected by the Due

Process of the Fourteenth Amendment."); Turner v. Safley , 482 U.S. 78, 95-96 (1987); Moore v.

City of East Cleveland , 431 U.S. 494, 499 (1977); Loving v. Virginia , 388 U.S. 1, 12 (1967).

Indeed, marriage is "intimate to the degree of being sacred." Griswold v. Connecticut , 381 U.S.

479, 486 (1965). This fundamental right has always been defined by the constitutional liberty to

select the partner of one's choice, and courts have thus placed special emphasis on protecting the

free choice of one's spouse. See, e.g., Roberts v. U.S. Jaycees , 468 U.S. 609, 620 (1984) (our

federal Constitution "undoubtedly imposes constraints on the state's power to control the

selection of one's spouse"). Further, the long line of decisions recognizing the significance of

and the protections afforded tomarital relationships would be meaningless if states could

unilaterally refuse to recognize the marriages of disfavored groups, thereby depriving these

spouses of their constitutional rights.

As the Supreme Court has recently recognized in Windsor (and lower courts have since

repeatedly reaffirmed), this fundamental right is not limited to different-sex couples. In ruling

that the federal government must provide marital benefits to married same-sex couples, and that

married lesbian and gay persons and their children are entitled to equal dignity and equal

treatment by their federal government, the Court acknowledged that marriage is not inherently

defined by the sex or sexual orientation of the couples. To the contrary, marriage permits same-


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sex couples "to define themselves by their commitment to each other" and to "live with pride in

themselves and their union and in a status of equality with all other married persons." Windsor ,

133 S. Ct. at 2689. It is thus unconstitutional to "deprive some couples . . . but not other couples,

of [the] rights and responsibilities [of marriage]." Id . at 2694.

Thus, Rob and Garth, like other same-sex couples who wish to marry, do not seek the

recognition of a new right to "same-sex marriage." Rather, like any fundamental right, the

freedom to marry is defined by the attributes of the right itself and not the identity of the people

seeking to exercise it. The Supreme Court has rejected attempts to reframe claimed fundamental

rights and liberty interests by redefining them narrowly to include only those who have exercisedthem in the past. The Supreme Court did not describe a right to "prisoner marriage" in Turner v.

Safley , 482 U.S. 78 (1987), or a right to "deadbeat parent marriage" in Zablocki v. Redhail , 434

U.S. 374 (1978). Because the choice of whom to marry is the quintessential type of personal

decision protected by the Due Process Clause, every court that has considered the issue since

Windsor has struck down state laws that purport to bar same-sex couples from marrying

reaffirming that whether gay, lesbian, or heterosexual, all persons are guaranteed the

fundamental right to marry. See, e.g., Kitchen, 2014 U.S. App. LEXIS 11935, at *97. As the

Tenth Circuit explained:

A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, thedeclaration by gay and lesbian couples of what may have been in their heartswould have had to remain unspoken. Not until contemporary times have lawsstigmatizing or even criminalizing gay men and women been felled, allowingtheir relationships to surface to an open society. As the district court eloquentlyexplained, "it is not the Constitution that has changed, but the knowledge of whatit means to be gay or lesbian." Kitchen , 961 F. Supp. 2d at 1203. Consistent withour constitutional tradition of recognizing the liberty of those previouslyexcluded, we conclude that plaintiffs possess a fundamental right to marry and tohave their marriages recognized.

Kitchen, 2014 U.S. App. LEXIS 11935, at *62-63.


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2. The Marriage Ban Impermissibly Impairs ConstitutionallyProtected Liberty Interests in Association, Integrity,Autonomy, and Self-Definition.

By denying Rob and Garth access to marriage, the marriage ban also infringes other

related fundamental liberty interests in addition to the right to marry. Louisiana's marriage ban

burdens the adult Plaintiffs' protected interest in autonomy over "personal decisions relating

to . . . family relationships," Lawrence , 539 U.S. at 573, and additionally impairs the adult

Plaintiffs' ability to identify themselves and to participate fully in society as married couples,

thus burdening their fundamental liberty interests in intimate association and self-definition. See

Griswold , 381 U.S. at 482-83; Windsor , 133 S. Ct. at 2689. For example, the marriage ban

interferes with constitutionally-protected interests in family integrity and association by

precluding same-sex couple parents from securing legal recognition of their parent-child

relationships through established legal mechanisms available to married parents ( e.g. , the spousal

presumption of parenthood, stepparent adoption, and other marital parentage protections), thus

infringing their fundamental liberty interest in "direct[ing] the upbringing and education" of their

child. See Pierce v. Soc'y of Sisters , 268 U.S. 510, 534-35 (1925). Such infringements on the

bonds between children and their parents violate the core of the substantive guarantees of the

Due Process Clause as recognized by the Supreme Court. See Moore , 431 U.S. at 503.

3. Louisiana's Marriage Ban Cannot Withstand Any Level ofReview, Let Alone Strict Scrutiny.

Louisiana's withholding of the fundamental right to marry and other protected

liberty interests from Plaintiffs denies them many of the legal, social, and financial benefits

enjoyed by different-sex couples and their children. Because Louisiana's law "significantly

interferes with the exercise of a fundamental right," "it cannot be upheld unless it is supported by

sufficiently important state interests and is closely tailored to effectuate only those interests."


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Zablocki , 434 U.S. at 388; see also Kitchen , 2014 U.S. App. LEXIS 11935, at *63 (applying

strict scrutiny). Just as Defendants could not articulate any legitimate interestlet alone a

compelling onefor denying recognition to same-sex marriages, Defendants cannot articulate a

legitimate reason for their infringement of the right to marry within the state. Indeed, far from

withstanding the rigorous test of strict scrutiny, Louisiana's marriage ban cannot satisfy even

rational basis review, and therefore must be struck down as unconstitutional.

4. Same-Sex Marriage Will Not Lead to a "Slippery Slope."

Finally, amicus for the Defendants have raised the specter that a ruling in

Plaintiffs' favor would require the Court to permit other forms of marriage, such as polygamy or

incestuous relationships. The Tenth Circuit noted that its ruling in favor of same-sex marriage

did not place courts on a "slippery slope" towards such marriages. Unlike same-sex

relationships, polygamous and incestuous relationships have not been found to enjoy

constitutional protection:

Unlike polygamous or incestuous marriages, the Supreme Court has explicitlyextended constitutional protection to intimate same-sex relationships, see

Lawrence, 539 U.S. at 567, and to the public manifestations of thoserelationships, Windsor , 133 S. Ct. at 2695. Our holding that plaintiffs seek toexercise a fundamental right turns in large measure on this jurisprudentialfoundation that does not exist as to the hypothetical challenges identified byappellants.

Kitchen , 2014 U.S. App. LEXIS 11935 at *95. The Court need not fear that a ruling in Plaintiffs'

favor will lead to other forms of marriage that the State currently prohibits. Although the

constitutionality of those marriage bans is not before the Court, the State may well be able to

demonstrate a sufficiently compelling governmental justification to prohibit them. In this case,

however, the State has not and cannot come forward with such justifications as to same-sex

marriages.


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D. By Denying Plaintiffs the Right to Marry, Louisiana's Marriage Ban Violatesthe Equal Protection Clause.

The State's marriage ban is antithetical to the basic principles of the Equal Protection

Clause. It creates a permanent "underclass" of lesbian and gay Louisiana citizens who are denied

the fundamental right of marriage that is available to others simply because of public disapproval

of their constitutionally-protected sexual identities. Louisiana's marriage ban relegates lesbians

and gay men to stigmatized and second-class status, and cannot be squared with the basic

dictates of the Equal Protection Clause. Kitchen, 2014 U.S. App. LEXIS 11935, at *75

("Extending the benefits and protections of a civil society to some but not all similarly situated

families violates this critical guarantee.").

1. The Marriage Ban Discriminates On The Basis Of SexualOrientation.

The act of falling in love with a person of the same sex, and the decision to marry and

build a life with that person, are expressions of sexual orientation. The Louisiana marriage ban

directly classifies and prescribes "distinct treatment on the basis of sexual orientation." See In re

Marriage Cases , 183 P.3d 384, 440-41 (Cal. 2008). The exclusion is categorical, preventing all

lesbian and gay couples from marrying consistent with their sexual orientation. Where, as here,

the statute's discriminatory effect is more than "merely disproportionate in impact," but rather

affects everyone in a class and "does not reach anyone outside that class," a showing of

discriminatory intent is not required. See M.L.B. v. S.L.J ., 519 U.S. 102, 126-28 (1996).

The parties have already extensively briefed the reasons that heightened scrutiny applies

to sexual orientation classifications. See, e.g., Rec. Doc. 86-1 at 10-15. However, under any

level of scrutiny, the marriage ban fails.


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2. The Marriage Ban Discriminates on the Basis of Sex.

Louisiana's marriage ban should also be subject to heightened scrutiny because it

classifies Louisiana citizens on the basis of sex. Because of these sex-based classifications, Rob

is precluded from marrying Garth because Rob is a man and not a woman; were Rob a woman,

he could marry Garth. Classifications based on sex can be sustained only where the government

demonstrates that they are "substantially related" to an "important governmental objective."

United States v. Virginia , 518 U.S. 515, 533 (1996) (internal quotation marks omitted);

Massachusetts v. U.S. Dep't of Health & Human Servs ., 682 F.3d 1, 9 (1st Cir. 2012)

("Gender-based classifications invoke intermediate scrutiny and must be substantially related to

achieving an important governmental objective.").

The ban also discriminates based on sex by impermissibly enforcing conformity with sex

stereotypes, requiring men and women to adhere to traditional marital roles as a condition of

issuing a marriage license. The Supreme Court has found this type of statutory sex stereotyping

constitutionally impermissible. See, e.g., Virginia, 518 U.S. at 533 (1996) (justifications for

gender classifications "must not rely on overbroad generalizations about the different talents,

capacities, or preferences of males and females"); Califano v. Webster , 430 U.S. 313, 317

(1977); Miss. Univ. for Women v. Hogan , 458 U.S. 718, 724-25 (1982). The Equal Protection

Clause prohibits "differential treatment or denial of opportunity" based on a person's sex in the

absence of an "exceedingly persuasive" justification. Virginia , 518 U.S. at 532-33 (internal

quotation marks omitted).

E. The Marriage Ban Cannot Survive Rational Basis Review, Let AloneHeightened Scrutiny.

Because the marriage ban discriminates against Rob and Garth in their exercise of their

fundamental rights and liberty interests, the ban is subject to strict scrutiny. See Kitchen, 2014


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U.S. App. LEXIS 11935, at *63. For further discussion, Plaintiffs respectfully refer the Court to

Plaintiffs' Memorandum in Support of Motion for Partial Summary Judgment, Rec. Doc. 86-1 at

p. 20.

However, the Louisiana marriage ban is unconstitutional even under rational basis

review. It irrationally targets gays and lesbians for exclusion from the right to marry.

Government action that discriminates against a class of citizens must "bear[] a rational relation to

some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996). And even under rational basis

review, the court must "insist on knowing the relation between the classification adopted and the

object to be obtained." Id . at 632. In addition, even when the government offers an ostensiblylegitimate purpose, the court must also examine the statute's connection to that purpose to assess

whether it is too "attenuated" to rationally advance the asserted governmental interest. See City

of Cleburne v. Cleburne Living Ctr., Inc ., 473 U.S. 432, 446 (1985); United States Dep't of

Agric. v. Moreno , 413 U.S. 528, 535-36 (1973); Eisenstadt v. Baird , 405 U.S. 438, 448-49

(1972).

By requiring that classifications be justified by an independent and legitimate purpose,

the Equal Protection Clause prohibits classifications from being drawn for "the purpose of

disadvantaging the group burdened by the law." Romer , 517 U.S. at 633; see also Windsor ,

133 S. Ct. at 2693; Cleburne , 473 U.S. at 450; Moreno , 413 U.S. at 534. The Supreme Court

invoked this principle most recently in Windsor when it held that the principal provision of

DOMA violated equal protection principles because the "purpose and practical effect of the

law . . . [was] to impose a disadvantage, a separate status, and a stigma upon all who enter into

same-sex marriages." Windsor, 133 S. Ct. at 2693. The Court found that DOMA was not

sufficiently connected to a legitimate governmental purpose because its "interference with the


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equal dignity of same-sex marriages . . . was more than an incidental effect of the federal statute.

It was its essence." Id. The Supreme Court has sometimes described this impermissible purpose

as "animus" or a "bare . . . desire to harm a politically unpopular group." Id. ; see also Romer ,

517 U.S. at 633; Cleburne , 473 U.S. at 447; Moreno , 413 U.S. at 534. But an impermissible

motive does not always require "malicious ill will." Bd. of Trustees of Univ. of Ala. v. Garrett ,

531 U.S. 356, 374 (2001) (Kennedy, J., concurring). It can also take the form of "negative

attitudes," Cleburne , 473 U.S. at 448, "fear," id. , "irrational prejudice," id . at 450, or "some

instinctive mechanism to guard against people who appear to be different in some respects from

ourselves," Garrett , 531 U.S. at 374 (Kennedy, J., concurring).Louisiana's marriage ban shares all the hallmarks of discrimination. None of the

rationales justifying the marriage ban that Defendants could possibly proffer can withstand

constitutional review. Even if the Court applies rational basis review rather than heightened or

strict scrutiny, the Louisiana marriage ban cannot survive.

F. Deference to the State Democratic Process Cannot Abrogate Plaintiffs'Fourteenth Amendment Rights.

At oral argument, Defendants suggested that the Court should defer to the State's

democratic decision-making regarding marriage. But as the Tenth Circuit remarked, a court

cannot defer to the majority when dealing with matters central to personal autonomy, and it

cannot infringe on the fundamental right to marry solely because the law was enacted through

the democratic process. As noted in Kitchen, the Supreme Court held in City of Cleburne v.

Cleburne Living Center that negative attitudes toward a politically unpopular groupin that case

the intellectually impairedwere not a permissible basis for denying them equal protection.

Kitchen, 2014 U.S. App. LEXIS 11935, at *89-90 ( quoting Cleburne, 473 U.S. at 448 ("It is

plain that the electorate as a whole, whether by referendum or otherwise, could not order city


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action violative of the Equal Protection Clause, and the city may not avoid the strictures of that

Clause by deferring to the wishes or objections of some fraction of the body politic."). Similarly,

the United States Supreme Court did not defer to Louisiana's marriage regime when holding that

the traditional gender-based restrictions on the management of community property under

Louisiana's "head and master" statute were unconstitutional. Kirchberg v. Feenstra , 450 U.S.

455 (1981). Nor did the Court defer to Wisconsin's validly enacted laws restricting marriages of

dead-beat dads in Zablocki , or to the validly enacted restrictions on marriage that were placed on

inmates in Turner.

The Tenth Circuit also held that it could not simply deny the claims of same-sex couplesout of a preference that the issue be decided at the ballot box or another forum. The court stated

that "[a]s a matter of policy, it might well be preferable to allow the national debate on same-sex

marriage to play out through legislative and democratic channels." Kitchen , 2014 U.S. App.

LEXIS 11935, at *93. But the court held that its decision could not wait: "'It is a judge's duty to

decide all cases within his jurisdiction that are brought before him, including controversial cases

that arouse the most intense feeling in the litigants' . . . . We may not deny [plaintiffs] relief

based on a mere preference that their arguments be settled elsewhere." Id. (quoting Pierson v.

Ray, 386 U.S. 547, 554 (1967)). Further, the right to marry is a right that is "central to personal

autonomy." Id. "The protection and exercise of fundamental rights are not matters for opinion

polls or the ballot box." Id.

III. Conclusion

Plaintiffs have established that they have a fundamental right to marry and a right to have

their marriages recognized under the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. The Court should enter a declaratory judgment holding that Louisiana

Civil Code articles 86, 89, 3520(B), and Article 12, Section 15 of the Louisiana Constitution are


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unconstitutional to the extent that they prohibit the celebration or recognition of same-sex

marriages, and the Court should enjoin their enforcement.

Alternatively, if the Court disagrees with Plaintiffs on all other claims, then the Court

should find that the Secretary of Revenue infringes on the First Amendment rights of married

same-sex couples by instructing them to certify that they are single on their state income tax

returns, and the Court should enter appropriate declaratory and injunctive relief requiring the

Secretary to amend the forms to accommodate Plaintiffs' First Amendment rights.

Dated: July 16, 2014 s/ Richard G. PerqueRichard G. Perque, 30669

[email protected] A. BONIN, LLC & RICHARD G. PERQUE, LLC700 Camp Street

New Orleans, Louisiana 70130Phone: 504-524-3306Fax: 504-529-4179

Attorney for Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard, andCourtney Blanchard (Case No. 14-97)

s/ Scott J. SpiveyScott J. Spivey , 25257

[email protected] & SPIVEY320 N. Carrollton Ave, Suite 101

New Orleans, LA 70119

Attorney for Robert Welles and Garth Beauregard (Case No. 14-97)

Respectfully submitted, /s/ J. Dalton CoursonJ. Dalton Courson, 28542, T.A.

[email protected] M. Landis, 7958

[email protected] D. Harris, 28070

[email protected] C. Tigchelaar, 32029

[email protected] M. Wall, 34139

[email protected] PIGMAN WALTHER WITTMANN L.L.C.546 Carondelet Street

New Orleans, Louisiana 70130Telephone: (504) 581-3200

Attorneys for Forum for Equality Louisiana, Inc., Jacqueline M. Brettner, M. Lauren Brettner, Nicholas J. Van Sickels, Andrew S. Bond, Henry Lambert, R. Carey Bond, L. Havard Scott, III, and Sergio March Prieto(Case No. 14-327)

mailto:[email protected]:[email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of July, 2014, the foregoing Plaintiffs'

Supplemental Summary Judgment Brief has been served upon all counsel of record by the

Court's CM/ECF system.

/s/ J. Dalton Courson


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TABLE OF CONTENTSPage

I. Secretary Barfield's Instruction that Plaintiffs Must Disclaim Their Married StatusViolates Their Free Speech Rights. .....................................................................................1

A. The Undisputed Facts Demonstrate that the Secretary Requires Plaintiffsto Disclaim Their Marriages on Their Tax Returns, Which ImposesFinancial and Stigmatic Harms................................................................................2

B. The Secretary Cannot Require Plaintiffs to Disclaim their Marriages Whenthe State's Ends Could Be More Narrowly Achieved..............................................3

C. The Secretary Has Made No Effort to Accommodate Plaintiffs' FirstAmendment Rights. .................................................................................................6

II. Louisiana Laws Barring Same-Sex Marriages Violate Equal Protection and DueProcess. ................................................................................................................................7

A. Rob and Garth Would Be Permitted to Marry But for the Fact that TheyAre the Same Sex.....................................................................................................7

B. Baker v. Nelson Is Not Controlling Precedent Because of DoctrinalDevelopments Since 1972........................................................................................8

C. By Denying Rob and Garth the Right to Marry and Violating their LibertyInterests in Family Integrity and Association, Louisiana's Marriage BanViolates the Due Process Clause............................................................................11

1. The Louisiana Marriage Ban Infringes Unmarried Same-SexCouples' Right to Marry.............................................................................12

2. The Marriage Ban Impermissibly Impairs ConstitutionallyProtected Liberty Interests in Association, Integrity, Autonomy,and Self-Definition.....................................................................................14

3. Louisiana's Marriage Ban Cannot Withstand Any Level of Review,Let Alone Strict Scrutiny. ..........................................................................14

4. Same-Sex Marriage Will Not Lead to a "Slippery Slope."........................15

D. By Denying Plaintiffs the Right to Marry, Louisiana's Marriage BanViolates the Equal Protection Clause.....................................................................16

1. The Marriage Ban Discriminates On The Basis Of SexualOrientation. ................................................................................................16

2. The Marriage Ban Discriminates on the Basis of Sex. ..............................17

E. The Marriage Ban Cannot Survive Rational Basis Review, Let AloneHeightened Scrutiny...............................................................................................17

F. Deference to the State Democratic Process Cannot Abrogate Plaintiffs'Fourteenth Amendment Rights..............................................................................19

III. Conclusion .........................................................................................................................20

Case 2:13-cv-05090-MLCF-ALC Document 123-1 Filed 07/16/14 Page 1 of 4

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TABLE OF AUTHORITIES

Page(s)

Cases

Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc. , 133 S. Ct. 2321 (2013) ...........1, 2, 4, 5

Baker v. Nelson, 409 U.S. 810 (1972) .............................................................................8, 9, 10, 11

Bd. of Trustees of Univ. of Ala. v. Garrett , 531 U.S. 356 (2001) (Kennedy, J.,concurring).........................................................................................................................19

Bishop v. United States ex rel. Holder , 962 F. Supp. 2d 1252 (N.D. Okla. 2014) ..........................9

Bostic v. Rainey , 970 F. Supp. 2d 456 (E.D. Va. 2014)...................................................................9

Califano v. Webster , 430 U.S. 313 (1977).....................................................................................17

City of Cleburne v. Cleburne Living Ctr., Inc ., 473 U.S. 432 (1985)......................................18, 19

Craig v. Boren, 429 U.S. 190 (1976)...............................................................................................9

De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) ..............................................................9

DeBoer v. Snyder , 973 F. Supp. 2d 757 (E.D. Mich. 2014) ............................................................9

Eisenstadt v. Baird , 405 U.S. 438 (1972) ......................................................................................18

Geiger v. Kitzhaber , No. 6:13-cv-01834-MC, 2014 U.S. Dist. LEXIS 68171 (D.Or. May 19, 2014)................................................................................................................9

Griswold v. Connecticut , 381 U.S. 479 (1965)........................................................................12, 14

Hicks v. Miranda , 422 U.S. 332 (1975)...........................................................................................9

Kirchberg v. Feenstra , 450 U.S. 455 (1981) .................................................................................20

Kitchen v. Herbert , No. 13-4178, 2014 U.S. App. LEXIS 11935 (10th Cir. June25, 2014), at *24 ........................................................................9, 10, 13, 15, 16, 17, 19, 20

Latta v. Otter , No. 1:13-cv-00482-CWD, 2014 U.S. Dist. LEXIS 66417 (D. IdahoMay 13, 2014)......................................................................................................................9

Lawrence v. Texas, 539 U.S. 558 (2003)...........................................................................10, 14, 15

Love v. Beshear , 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. July 1, 2014)..............................10, 11


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Loving v. Virginia , 388 U.S. 1 (1967)............................................................................................12

M.L.B. v. S.L.J ., 519 U.S. 102 (1996) ............................................................................................16

Mandel v. Bradley, 432 U.S. 173 (1977) ...................................................................................9, 11

In re Marriage Cases , 183 P.3d 384 (Cal. 2008)...........................................................................16

Massachusetts v. U.S. Dep't of Health & Human Servs ., 682 F.3d 1 (1st Cir. 2012)....................17

McGee v. Cole , No. 3:13-24068, 2014 U.S. Dist. LEXIS 10864 (S.D. W. Va. Jan.29, 2014) ..............................................................................................................................9

Merritt v. Att'y Gen. , No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 162583(M.D. La. Nov. 14, 2013) ............................................................................................10, 11

Miss. Univ. for Women v. Hogan , 458 U.S. 718 (1982) ................................................................17

Moore v. City of East Cleveland , 431 U.S. 494 (1977) ...........................................................12, 14

Oliver v. State Tax Comm'n , 37 S.W.3d 243 (Mo. 2001)................................................................4

Pierce v. Soc'y of Sisters , 268 U.S. 510 (1925) .............................................................................14

Pierson v. Ray, 386 U.S. 547 (1967) .............................................................................................20

Roberts v. U.S. Jaycees , 468 U.S. 609 (1984) ...............................................................................12

Romer v. Evans, 517 U.S. 620 (1996)......................................................................................18, 19

Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47 (2006)........................1

Turner v. Safley , 482 U.S. 78 (1987) .................................................................................12, 13, 20

United States Dep't of Agric. v. Moreno , 413 U.S. 528 (1973) ...............................................18, 19

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

United States v. Playboy Entm't Grp., Inc. , 529 U.S. 803 (2000) ...................................................6

United States v. Sindel , 53 F.3d 874 (8th Cir. 1995) .......................................................................5

United States v. Virginia , 518 U.S. 515 (1996) .............................................................................17

Webster v. Reproductive Health Servs ., 492 U.S. 490 (1989).......................................................12

West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943).............................3, 4, 5

Wheaton College v. Burwell, 573 U.S. ___ (2014), No. 13A1284 (July 3, 2014)...........................4


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Whitewood v. Wolf , No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa.May 20, 2014)......................................................................................................................9

Windsor v. United States , 133 S. Ct. 2675 (2013) ...........................8, 10, 11, 12, 13, 14, 15, 18, 19

Wolf v. Walker , No. 14-cv-64-BBC, 2014 U.S. Dist. LEXIS 77125 (W.D. Wis.June 6, 2014)........................................................................................................................9

Wooley v. Maynard , 430 U.S. 705 (1977) ...................................................................................3, 4

Zablocki v. Redhail , 434 U.S. 374 (1978)..........................................................................13, 15, 20

Statutes

La. Civ. Code art. 86..................................................................................................................7, 20

La. Civ. Code art. 89..................................................................................................................7, 20

La. Civ. Code art. 3520(B).............................................................................................................20

Other Authorities

La. Const. art. XII, 15 ...................................................................................................................7

U.S. Const. amend. I ..........................................................................................................1, 4, 6, 21

U.S. Const. amend. V.....................................................................................................................10

U.S. Const. amend. XIV ....................................................................................................12, 19, 20


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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - - - x

3 DENNIS HOLLINGSWORTH, ET AL., :

4 Petitioners : No. 12-144

v. :

6 KRISTIN M. PERRY, ET AL. :

7 - - - - - - - - - - - - - - - - - x

8 Washington, D.C.

9 Tuesday, March 26, 2013

11 The above-entitled matter came on for oral

12 argument before the Supreme Court of the United States

13 at 10:07 a.m.

14 APPEARANCES:

CHARLES J. COOPER, ESQ., Washington, D.C.; on behalf of

16 Petitioners.

17 THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf of

18 Respondents.

19 DONALD B. VERRILLI, JR., ESQ., Solicitor General,

Department of Justice, Washington, D.C.; for United

21 States, as amicus curiae, supporting Respondents.

22

23

24

1

Alderson Reporting Company Exhibit 2


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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 CHARLES J. COOPER, ESQ.

4 On behalf of the Petitioners 3

ORAL ARGUMENT OF

6 THEODORE B. OLSON, ESQ.

7 On behalf of the Respondents 28

8 ORAL ARGUMENT OF

9 DONALD B. VERRILLI, JR., ESQ.

For United States, as amicus curiae,

11 supporting Respondents 50

12 REBUTTAL ARGUMENT OF

13 CHARLES J. COOPER, ESQ.

14 On behalf of the Petitioners 64

16

17

18

19

21

22

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Alderson Reporting Company


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1 changing and changing rapidly in this country as people

2 throughout the country engage in an earnest debate over

3 whether the age-old definition of marriage should be

4 changed to include same-sex couples.

The question before this Court is whether

6 the Constitution puts a stop to that ongoing democratic

7 debate and answers this question for all 50 States. And

8 it does so only if the Respondents are correct that no

9 rational, thoughtful person of goodwill could possibly

disagree with them, in good faith, on this agonizingly

11 difficult issue.

12 The issues, the constitutional issues that

13 have been presented to the Court, are not of first

14 impression here. In Baker against Nelson, this Court

unanimously dismissed for want of a substantial Federal

16 question.

17 JUSTICE GINSBURG: Mr. Cooper, Baker v.

18 Nelson was 1971. The Supreme Court hadn't even decided

19 that gender-based classifications get any kind of

heightened scrutiny.

21 MR. COOPER: That is --

22 JUSTICE GINSBURG: And the same-sex intimate

23 conduct was considered criminal in many States in 1971,

24 so I don't think we can extract much from Baker against

Nelson.


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