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Louisiana Court Finds Executive Order Extending Protections to LGBT Employees of State Contractors Unconstitutional

Authors: Andrew P. Burnside (New Orleans), Hal D. Ungar (New Orleans)

Published Date: November 2, 2017

In April of 2016, Louisiana Governor John Bel Edwards signed Executive Order JBE 2016 – 11, which sought to protect lesbian, bisexual, gay, and transgender individuals, among other protected classes, from discrimination practiced by state contractors. Months later, Louisiana Attorney General Jeff Landry and others challenged the order in a lawsuit filed in East Baton Rouge Parish that sought a permanent injunction, as well as a declaratory judgment that the executive order violated state law.

In December of 2016, a district court judge located in Baton Rouge issued a permanent injunction of the executive order and declared it illegal as a matter of law, holding that the executive order “is a violation of the Louisiana Constitution’s separation of powers doctrine and an unlawful usurp of the constitutional authority vested only in the legislative branch of government.”

Edwards appealed the December 14, 2016, order. Landry opposed and asserted his own cross-appeal. On November 1, 2017, the Louisiana Court of Appeal, First Circuit affirmed the district court’s finding that the order was unconstitutional. 

Judge Higginbotham, writing for the Louisiana Court of Appeal, explained the following:

[T]he limited power of the Governor to issue Executive Orders does not inherently constitute authority to exercise the legislative lawmaking function . . . 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 . . . Clearly, the Louisiana legislature and the people of the State of Louisiana have not yet revised the laws and/or the state Constitution to specifically add “sexual orientation” or “gender identity” to the list of protected persons relating to discrimination.  Further, there is no binding federal law or jurisprudence banning discrimination on the basis of sexual orientation or gender identity.  Thus, we agree with the district court that the Governor’s Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing faithful execution of the existing anti-discrimination laws of this state.

Edwards issued a statement after the ruling stating in part, “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 . . . We will thoroughly review the ruling before determining our next steps.”

For now, the executive order remains without effect.

Andrew P. Burnside  (New Orleans)

Andrew P. Burnside
Drew Burnside represents employers in federal and state courts, as well as federal and state administrative agencies, in employment law matters. Drew is admitted in Louisiana and Texas. Drew has received an “AV” Preeminent Peer Review Rating by Martindale-Hubbell and was on the editorial board of Tulane Maritime Law Journal at Tulane University. He is a chapter editor of and contributing author to The Family and Medical Leave Act treatise, published by BNA. Drew also was contributing...

Hal D. Ungar  (New Orleans)

Hal D. Ungar
Hal D. Ungar brings ten years of practical experience to his diverse practice, which includes the fields of labor and employment, construction, admiralty, personal injury and insurance law. His vast litigation experience includes employment and labor matters, construction related disputes involving breach of contract and other contractor related issues, class action defense, MDL, and personal injury. Mr. Ungar has previously served as lead counsel on numerous labor and employment,...