A state appeals court in Louisiana has affirmed Gov. John Bel Edwards’ executive order barring anti-LGBT discrimination in the state government and among state contractors is unconstitutional.
In a nine-page decision issued Wednesday, Judge Toni Higginbotham of the Louisiana First Circuit Court of Appeal for the Second District concludes the executive order violates separation of power and is an overreach of the governor’s authority.
“The governor’s executive order in this case goes beyond a mere policy statement or directive to fulfill law, because there is no current state or federal law specifically outlining anti-discrimination laws concerning and/or defining sexual orientation or gender identity,” Higginbotham writes.
The order affirms a decision issued by Judge Todd Hernandez of the 19th Judicial District Court in December as the result of a dispute between Louisiana Attorney General Jeff Landry, a Republican, and the Democratic governor.
“Having found the governor’s executive order invalid, we conclude that the district court did not err in permanently enjoining the mandatory adoption of the executive order,” the order says.
The decision also vacates the lower court ruling’s on the dispute of constitutional powers between the governor and the attorney general because, without than the issues raised by the executive order, no factual dispute exists and any ruling would constitute an advisory opinion.
The Louisiana First Circuit Court of Appeals for the Second District, located in Baton Rouge, consists of 12 judges, each of whom serve on the bench as a result of popular election, not appointment. The case was before a three-judge panel consisting of Higginbotham, Judge Guy Holdridge and Judge Allison Hopkins Penzato.
In a written note at bottom of the first page of the decision, Holdridge indicates he “concurs in the result” of the decision, but suggests he finds other implications.
Edwards signed the executive order in July 2016. It prohibits discrimination on the basis of several categories — including sexual orientation and gender identity — in state agencies in terms of services, employment and purchases of contracts and for state contractors in terms of employment. The component related to purchases of contracts and contractors had an exemption for churches and religious organizations.
In a statement after the decision, Edwards said his office “will thoroughly review the ruling before determining our next steps.”
“I have said repeatedly that discrimination is not a Louisiana value, and this decision does not change my conviction that hiring decisions in state government should be based on merit alone,” Edwards said. “Discrimination in state government and by state contractors is wrong, makes us weaker, and is bad for business and economic development.”
Edwards pointed to President Trump’s decision to keep in place an Obama-era executive order barring anti-LGBT workplace discrimination among federal contractors as evidence the state order is lawful.
“Even President Trump agrees, as he has kept in place a federal executive order which is virtually identical to the order I put in place,” Edwards said. “I went a step further and provided an exemption for certain religious organizations.”
Claiming victory, Landry said the court ruling “affirms a notion of basic civics that the legislature makes the law, not the governor.”
“We do not live under a king in Louisiana; we have a governor, an independent attorney general, an elected legislature, and a court system who are all involved in the governing of our state,” Landry said. “I applaud the professionalism and attention of the Court of Appeal in these matters.”
No state law in Louisiana protects LGBT people from discrimination in Louisiana. Now that Landry has succeeded in enjoining enforcement of executive order, LGBT people will have rely on other resources to seek recourse from discrimination, which may include local civil rights law and other non-discrimination policies. Federal law against sex discrimination, which increasingly has been interpreted to apply to LGBT people, still holds in Louisiana.
Louisiana Solicitor General Elizabeth Murrill also commended the court for ruling against Bel Edwards’ executive order in a statement.
“This dispute was always about separation of powers and executive overreach,” Murrill said. “The governor tried to make it something else and, in doing so, deflected that basic issue. Our position has been consistent – expanding the law to create new protected classes requires legislative action.”