MEMORANDUM IN SUPPORT OF DEFENDANT S DECLINATORY AND PEREMPTORY EXCEPTIONS

ACLU Foundation of Louisiana, Forum for Equality Foundation, Clyde Watkins, Regina O. Matthews, Wallick Construction and Restoration, Inc., Marilyn McConnell, Laurie Reed, and Reverend William Barnwell, v. Plaintiffs, Governor Bobby Jindal, in his official capacity as Governor of the State of Louisiana, Defendant No. 640,486 Div. A, Section XXVII 19th Judicial District Court Parish of East Baton Rouge State of Louisiana MEMORANDUM IN SUPPORT OF DEFENDANT S DECLINATORY AND PEREMPTORY EXCEPTIONS Thomas L. Enright, Jr. (La. Bar No. 25040) State of Louisiana Office of the Governor P.O. Box 94004 Baton Rouge, LA 70804 225.342.8212 225.342.5598 (fax) thomas.enright@la.gov S. Kyle Duncan (La. Bar No. 25038) DUNCAN PLLC 1629 K Street NW, Suite 300 Washington, DC 20006 202.714.9492 571.730.4429 (fax) kduncan@duncanpllc.com Counsel for Defendant

TABLE OF CONTENTS Table of Authorities... ii Background...1 Argument...2 I. There is no justiciable controversy...2 II. Alternatively, the plaintiffs claim is not ripe...3 III. Alternatively, the plaintiffs have no right of action...6 Conclusion...8 Certificate of Service...9! i

TABLE OF AUTHORITIES Cases Abbott Labs. v. Gardner, 387 U.S. 136 (1967)...4 Arizona v. California, 283 U.S. 423 (1931)...4 Blanchard v. State, 673 So.2d 1000 (La. 1996)...4 Bunge North America, Inc. v. Bd. of Commerce & Indus., 2007-1746 (La. App. 1 Cir. 5/2/08); 991 So.2d 511...6 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)...2 Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1 (1961)...4 Hunt v. Washington State Apple Advertising Comm n, 432 U.S. 333 (1977)...8 In the Matter of E.W., 2009-1589 (La. App. 1 Cir. 5/7/10); 38 So.3d 1033...2 J-W Power Co. v. State ex rel. Dep t of Rev. & Taxation, 2010-1598 (La. 3/15/11); 59 So.3d 1234...6 La. Assoc. Gen. Contractors, Inc. v. Calcasieu Parish Sch. Bd., 586 So.2d 1354 (La. 1991)...6 La. Hotel-Motel Ass n, Inc. v. Parish of East Baton Rouge, 385 So.2d 1193 (La. 1980)...7 La. Sup. Ct. Comm. on Bar Admissions ex rel. Webb v. Roberts, 2000-2517 (La. 2/21/01); 779 So.2d 726...3, 5, 8 Laird v. Tatum, 408 U.S. 1 (1972)...4 Matherne v. Gray Ins. Co., 95-0975 (La. 10/16/95); 661 So.2d 432...4, 5, 6 Murrill v. Edwards, 613 So.2d 185 (La. App. 1 Cir. 1992)...3 Ralph v. City of New Orleans, 06-0153 (La. 5/5/06); 928 So.2d 537...6 Retired State Employees Ass n v. State, 2013-0499 (La. 6/28/13); 119 So.3d 568...6 Ring v. State, DOTD, 2002-1367 (La. 1/14/03); 835 So.3d 423... 3-4! ii

Robinson v. Ieyoub, 97-2204 (La. App. 1 Cir. 12/28/98); 727 So.2d 579...6 State v. Rochon, 2011-0009 (La. 10/25/11); 75 So.3d 876...4, 5, 6 Warth v. Seldin, 422 U.S. 490 (1975)...4 Williams v. Int l Offshore Servs., LLC, 2011-1240 (La. App. 1 Cir. 12/7/12); 106 So.3d 212...2, 3, 7 Women s Health Clinic v. State, 2002-0016 (La. App. 1 Cir. 5/10/02); 825 So.2d 1208...2 Statutes Preservation of Religious Freedom Act, La. Rev. Stat. Ann. 13:5231-5242...1, 2 La. Rev. Stat. Ann. 1:10...2 La. Rev. Stat. Ann. 47:287.401...1 La. Code Civ. Proc. art. 925...1, 3, 6 La. Code Civ. Proc. art. 927...1, 6, 8 1 U.S.C. 1...2 Orders Executive Order No. BJ 2015-8... passim Constitutional Provisions La. Const. Art. II, 1-2...1 La. Const. Art. III, 1...1 La. Const. Art. IV, 5...1! iii

MEMORANDUM IN SUPPORT OF DEFENDANT S DECLINATORY AND PEREMPTORY EXCEPTIONS Defendant Bobby Jindal, in his official capacity as Governor of the State of Louisiana, appears for the sole purpose of raising the following declinatory and peremptory exceptions under Louisiana Code of Civil Procedure articles 925(A)(6) and 927(A). Governor Jindal respectfully asks the Court to dismiss the plaintiffs lawsuit for lack of subject matter jurisdiction: the plaintiffs own allegations demonstrate that there is no justiciable controversy for the Court to resolve. Alternatively, the Court should dismiss the lawsuit because the plaintiffs claim is not ripe and because the plaintiffs have no right of action. BACKGROUND 1. Plaintiffs have filed a lawsuit challenging Executive Order No. BJ 2015-8, entitled Marriage and Conscience Order ( Order ), issued by Defendant on May 19, 2015. Pet. Ex. A. Plaintiffs claim that the Order violates the separation of powers in the Louisiana Constitution and usurps the authority of the Louisiana Legislature. Pet. 37-41 (relying on La. Const. Art. II, 1-2; Art. III, 1; Art. IV, 5). Plaintiffs seek declaratory and permanent injunctive relief, as well as nominal damages. Pet. at 6-7. 2. The Order addresses the responsibilities of certain government actors under Louisiana s Preservation of Religious Freedom Act ( PRFA ), La. Rev. Stat. Ann. 13:5231-5242. Order, 1. It directs [a]ll departments, commissions, boards, agencies, and political subdivisions of the state to avoid taking enumerated actions with respect to persons who act in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman. Id. 2. The Order directs those government actors not to take the following adverse actions against such persons: A. Deny them a tax exemption under Revised Statute 47:287.401; B. Disallow a state tax deduction for charitable contributions to or by them; C. Deny or exclude them from receiving any state grant, contract, cooperative agreement, loan, professional license, certification, accreditation, employment, or other similar position or status ; D. Deny or withhold any state benefits from them; and E. Deny, revoke, or suspend their licensing, accreditation, or certification based solely on their religious belief that marriage is between one man and one woman.

Order, 2(A)-(E). Finally, the Order clarifies that the definition of person under the Louisiana PRFA is consistent with corresponding federal law and thus includes individuals, non-profit, [and] for-profit corporations. Id. 1 (citing La. Rev. Stat. Ann. 1:10; 1 U.S.C. 1; Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)) 3. Plaintiffs are (a) two non-profit organizations (ACLU Foundation of Louisiana and Forum for Equality Foundation) who allege they are tax-exempt under state and federal law; (b) two private Louisiana citizens (Watkins and Matthews) who allege they are ACLU donors and state taxpayers; (c) a Louisiana corporation (Wallick) that alleges it holds state contractor s licenses and pays state taxes; (d) another private Louisiana citizen (McConnell) who alleges she receives state pension benefits and pays state taxes; and (e) two private Louisiana citizens (Reed and Barnwell) who allege they are ordained ministers and state taxpayers. Pet. 13-20. ARGUMENT I. There is no justiciable controversy. 1. Courts have jurisdiction to decide only justiciable controversies, meaning cases that present[ ] an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character. Williams v. Int l Offshore Servs., LLC, 2011-1240 (La. App. 1 Cir. 12/7/12); 106 So.3d 212, 218 (citing Women s Health Clinic v. State, 2002-0016 (La. App. 1 Cir. 5/10/02); 825 So.2d 1208, 1210). It is well settled that courts cannot decide abstract or hypothetical disputes, and any judicial pronouncement on [such] matter[s] would be an impermissible advisory opinion. Williams, 106 So.3d at 218 (citing In the Matter of E.W., 2009-1589 (La. App. 1 Cir. 5/7/10); 38 So.3d 1033, 1036). 2. Plaintiffs allegations confirm that there is no justiciable controversy. Plaintiffs challenge the Governor s Order because, they claim, it violates the separation of powers and creates a pretext for unlawful discrimination. Pet. 4, 7, 37-41. At the same time, however, plaintiffs assert that religious protections the Order seeks to ensure are already guaranteed by state and federal law. Plaintiffs petition states that Louisiana s Preservation of Religious Freedom Act of 2010 already prohibits government intrusion into a person s exercise of religion, in addition to other federal and state protections that exist. Pet. 34 (citing La. Rev. Stat. Ann. 13:5231! 2

et seq.) (emphases added). Consequently, the plaintiffs claim the Order is unnecessary, because there is no law that penalizes or attempts to take away state benefits of persons who only believe in unions between one man and one woman. Pet. 35. Plaintiffs thus candidly admit that their disagreement with the Order is a purely abstract and hypothetical dispute. Williams, 106 So.3d at 218. If the plaintiffs were to prevail on the merits, their own petition states there would be no change in the legal status quo: Louisiana law would still protect from adverse state action persons who act on the basis of a religious belief that marriage consists only in man-woman relationships. Pet. 35. Any judgment from the Court would have no conclusive character, Williams, 106 So.2d at 218; indeed, it would conclude nothing at all. Plaintiffs are thus seeking an impermissible advisory opinion from this Court. Courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. La. Sup. Ct. Comm. on Bar Admissions ex rel. Webb v. Roberts, 2000-2517 (La. 2/21/01); 779 So.2d 726, 727 (citation omitted). 3. Other parts of plaintiffs petition demonstrate that their suit is based, not on an actual legal controversy, but on a political disagreement with the Governor. Plaintiffs argue that the Order sends the message that same-sex couples should avoid living, working, or visiting [sic] Louisiana and point out that the Order was issued one day after [the Governor s] announcing an exploratory committee to prepare for a presidential run. Pet. 8-9. Courts are obviously not empowered to adjudicate which messages the executive branch should send. Nor should they expend scarce judicial resources in irresolvable disputes over the political timing of government officials actions. The judiciary is an unsuitable arbitrator of conflicts which are best resolved in the political arena. Murrill v. Edwards, 613 So.2d 185, 189 (La. App. 1 Cir. 1992). The plaintiffs seek to enjoin an Order which their own petition characterizes as duplicative of existing legal protections. Because, by its own terms, their lawsuit would not alter the legal status quo, there is no justiciable controversy. The Court should dismiss plaintiffs lawsuit under article 925(A)(6) of the Code of Civil Procedure for lack of subject matter jurisdiction. II. Alternatively, the plaintiffs claim is not ripe. 1. Even if there is a justiciable controversy, the plaintiffs claim is unripe. Ripeness is a threshold issue that must be examined prior to the merits. Ring v. State, DOTD, 2002-1367 (La.! 3

1/14/03); 835 So.3d 423, 429. The doctrine tests whether the harm asserted has matured sufficiently to warrant judicial intervention. State v. Rochon, 2011-0009 (La. 10/25/11); 75 So.3d 876, 882 (quoting Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975)). A claim is ripe when there is an actual present or immediately threatened injury resulting from unlawful governmental action. Rochon, 75 So.3d at 882 (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)). Deciding an unripe claim violates the basic principle that [a] question of constitutional law should never be anticipated in advance of the necessity of deciding it. Blanchard v. State, 673 So.2d 1000, 1001 (La. 1996) (citing Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1 (1961); Arizona v. California, 283 U.S. 423 (1931)). In evaluating whether claims are ripe, a court examines (1) the hardship to the parties if a court does not decide; and (2) the fitness of the issues for decision. Rochon, 75 So.3d at 882 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149-56 (1967)). With respect to hardship, the Louisiana Supreme Court has explained that, [i]f a party will be significantly injured by a court s failure to decide an issue quickly, then the court is more likely to determine that the dispute has matured into the required case or controversy. Matherne v. Gray Ins. Co., 95-0975 (La. 10/16/95); 661 So.2d 432, 435. With respect to fitness, a case is not fit for decision when the record is not well developed, raising the risk of a speculative or overbroad decision. Id.; Ring, 835 So.3d at 427. 2. Plaintiffs own allegations demonstrate that their claim is not ripe. They claim that the Order sanctions discrimination against same-sex couples, but they allege only that such discrimination may happen in the future. Pet. 7. Thus, the petition speculates that the Order protects businesses with state contracts that may discriminate against employees in same-sex marriages, and licensed professionals who may refuse to provide services to same-sex couples, and businesses that may refuse to serve or accommodate same-sex couples. Id. (emphases added); see also id. 4 (alleging only that [t]he apparent result of the Order is to permit a protected class of people to discriminate against same-sex couples ) (emphasis added). The petition also references a memorandum from the Governor s counsel offering the opinion that government officials may not be forced to participate in same-sex weddings against their religious beliefs, Id. 6 & Ex. B, yet the petition does not identify any official who has! 4

declined to participate in a same-sex wedding nor any same-sex couple who has been denied a marriage license or an officiant. The memorandum itself speaks only in general terms, recognizing that the legality of specific refusals will depend on [t]he facts of any such case, and that the full implications of such conflicts will be determined over the coming months and years. Id., Ex. B. Simply reading plaintiffs petition thus shows they are asking the Court for an impermissible advisory opinion[ ] based on a contingency which may or may not occur. Webb, 779 So.2d at 827. The only harms plaintiffs discuss are discriminatory acts they believe the Order will sanction yet plaintiffs carefully avoid alleging that any such discrimination has already happened, is now happening, or is even likely to happen anytime soon. Far from demonstrating that any alleged harm from the Order has matured sufficiently to warrant judicial intervention, Rochon, 75 So.3d at 882, Plaintiffs allegations consist only in predictions that, at some unspecified point in the future, someone may decide to use the Order as a pretext for discrimination. These are textbook examples of unripe claims: they raise nothing more than a generalized, speculative fear of illegal or unconstitutional action. Id. at 882. 3. Considering the hardship and fitness prongs of the ripeness doctrine further demonstrates that the plaintiffs claim is unripe. Plaintiffs cannot claim they will be injured at all much less significantly injured, Matherne, 661 So.2d at 435 if the Court declines to decide this case now, because they have alleged only that the Order may lead someone to discriminate in the indeterminate future. Moreover, plaintiffs do not even allege that they themselves will be harmed by the Order; for instance, they do not allege that, due to the Order, they will be deprived of a state tax exemption or deduction, or lose a state contract or license. 1 Thus, the plaintiffs cannot plausibly claim there will be any hardship to the parties if the Court properly declines to take up their claim. Rochon, 75 So.3d at 882 (emphasis added). For the same reasons, plaintiffs claim lacks fitness. Id. Because their claim rests on pure speculation about the alleged future consequences of the Order, see Pet. 4, 7-8, the Court could easily render a speculative or overbroad decision if it tries to decide these issues now. Matherne, 661 So.2d at 435. Indeed, it is hard to imagine how the Court could avoid rendering!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 For the same reason, the plaintiffs lack standing to challenge the Order. See infra III.! 5

such a decision, given that the plaintiffs themselves allege only that unspecified persons or businesses may discriminate in the future. Based on such speculative allegations, there is by definition no well developed record that could serve as the basis for a concrete opinion by the Court, nor any prospect of being able to develop such a record. Ring, 835 So.3d at 427. Because the plaintiff s claim is unripe, the Court should dismiss their lawsuit for lack of subject matter jurisdiction under article 925(A)(6) of the Code of Civil Procedure. III. Alternatively, the plaintiffs have no right of action. 1. Generally, an action can only be brought by a person having a real and actual interest which he asserts. Bunge North America, Inc. v. Bd. of Commerce & Indus., 2007-1746 (La. App. 1 Cir. 5/2/08); 991 So.2d 511, 522 (citing La. Code Civ. Proc. art. 681). None of the plaintiffs assert a real and actual interest in challenging the Order, and their suit should be dismissed because they therefore have no right of action. See id. (citing La. Code Civ. Proc. art. 927); see also, e.g., J-W Power Co. v. State ex rel. Dep t of Rev. & Taxation, 2010-1598 (La. 3/15/11); 59 So.3d 1234, 1239 ( The exception of no right of action questions whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. ). 2. Several of the plaintiffs (Watkins, Matthews, Wallick, McConnell, Reed, and Barnwell) allege they pay state taxes. Pet. 15-20. A state taxpayer may challenge allegedly unconstitutional government action if that action would increase the burden of taxation or otherwise unjustly affect the taxpayer or his property. Bunge, 991 So.2d at 523 (citing Robinson v. Ieyoub, 97-2204 (La. App. 1 Cir. 12/28/98); 727 So.2d 579, 582; La. Assoc. Gen. Contractors, Inc. v. Calcasieu Parish Sch. Bd., 586 So.2d 1354, 1357 (La. 1991)). As the Louisiana Supreme Court has confirmed, a taxpayer s standing may be based on allegations or evidence that government action would have an actuarial cost resulting in an increase in the state s expenditures or otherwise affect[ ] the public fisc. Retired State Employees Ass n v. State, 2013-0499 (La. 6/28/13); 119 So.3d 568, 573-74 (citing La. Assoc. Gen. Contractors, 586 So.2d at 1357-58; Ralph v. City of New Orleans, 06-0153 (La. 5/5/06); 928 So.2d 537, 538-39) (internal quotes omitted). The taxpayer plaintiffs in this case, however, have made no such allegations. They have not alleged that the Order will increase the burden of taxation, affect their! 6

property, increase state expenditures, or impact the public fisc in any way. Indeed, they could not logically make such allegations in this case: by its own terms, the Order can have no effect on taxation or the public fisc because its purpose is to prevent the government from stripping persons of existing tax exemptions, deductions, contracts, licenses, or other benefits based on their religious beliefs. See Order, 2(A), (B). By definition, the Order leaves the public fisc unchanged. Plaintiffs, of course, acknowledge this in their petition. See Pet. 35(d) (stating that there is no law that penalizes or attempts to take away the state benefits of persons who only believe in unions between one man and one woman ). The plaintiffs therefore have no right of action as taxpayers to challenge the Order. 3. Two of the plaintiffs also allege they are ministers, but that cannot establish an actual interest in challenging the Order. Their petition does not, and cannot, explain why the Order poses any threat to their religious beliefs or practices. Indeed, as already discussed, the plaintiffs petition acknowledges that existing state law already prohibits government intrusion into a person s exercise of religion. Pet. 34. Any suggestion that the Order sanctions discrimination against the ministerial plaintiffs is pure speculation that cannot support a right of action (or establish a ripe claim, as explained above). The same is true for the plaintiff corporation, which alleges it holds state residential and commercial contractor s licenses. Pet. 17. That plaintiff does not, and cannot, explain how the Order poses any threat whatsoever to its licenses. 4. Two of the plaintiffs are public interest organizations, who allege they are tax exempt under state law. Pet. 13-14. But these organizations do not (and could not) allege that the Order threatens their tax exempt status. They also cannot sue on behalf of their members. To do so, they must meet three criteria: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. La. Hotel-Motel Ass n, Inc. v. Parish of East Baton Rouge, 385 So.2d 1193, 1197 (La. 1980) (quoting Hunt v. Washington State Apple Advertising Comm n, 432 U.S. 333, 343 (1977)). The organizational plaintiffs, however, do not even attempt to explain why any of their members would have standing to sue in their own right. Nor do they allege that their organizational claims do not require member participation.! 7

The allegations in the plaintiffs petition demonstrate that none of the plaintiffs have a real and actual interest in challenging the Order. Their lawsuit should therefore be dismissed under article 927(A)(6) of the Code of Civil Procedure. CONCLUSION For the foregoing reasons, Governor Jindal respectfully asks the Court to dismiss the plaintiffs lawsuit. Respectfully submitted, Thomas L. Enright, Jr. (La. Bar No. 25040) STATE OF LOUISIANA OFFICE OF THE GOVERNOR P.O. Box 94004 Baton Rouge, LA 70804 225.342.8212 225.342.5598 (fax) thomas.enright@la.gov S. Kyle Duncan (La. Bar No. 25038) DUNCAN PLLC 1629 K Street NW, Suite 300 Washington, DC 20006 202.714.9492 571.730.4429 (fax) kduncan@duncanpllc.com Counsel for Defendant! 8

CERTIFICATE OF SERVICE I certify that on August 19, 2015, I sent a copy of the foregoing by U.S. Mail, as well as an electronic copy by email, to the following counsel of record: Maury A. Herman Herman, Herman & Katz, LLC 820 O Keefe Avenue New Orleans, LA 70113 504.581.4892 504.561.6024 (fax) mherman@hhklawfirm.com Candice C. Sirmon ACLU Foundation of Louisiana New Orleans, LA 70156 504.522.0628 504.613.6511 (fax) csirmon@laaclu.org Counsel for Plaintiffs S. Kyle Duncan Counsel for Defendant! 9