Bobby Jindal’s Religious Liberty Executive Order Is Probably Illegal, Definitely Anti-Gay

Louisiana Gov. Bobby Jindal, critic and issuer of executive orders.

Gage Skidmore

On Tuesday, Louisiana civil liberties groups filed a lawsuit against Gov. Bobby Jindal’s recent “Marriage and Conscience” executive order, which allowed businesses and government employees to refuse service to gay couples. The order, these groups claim, exceeds Jindal’s power under the Louisiana constitution. Jindal’s executive order named a certain class of people—marriage equality opponents—and granted them a special right to discriminate against gay couples. But the Louisiana constitution doesn’t authorize the governor to impose a substantive right by executive order. Jindal’s “Marriage and Conscience” order should thus be rendered invalid.

It’s hard not to feel a little sympathy for Jindal here. As the lawsuit notes, the state constitution is designed to prevent the governor from usurping legislative functions—namely, making laws. Had Jindal claimed his order was merely an interpretation of already existing legal principles, he might’ve gotten away with it. Instead, the governor issued his order soon after the legislature failed to pass a nearly identical measure. Jindal then declared that his order was designed to “accomplish the intent” of the bill. He didn’t just revive a failed piece of legislation through executive fiat. He bragged about it. 

As I explained in May, Jindal’s willingness to legislate from the governor’s mansion is especially galling in light of his criticism of the president:

Jindal has been a vituperative critic of President Barack Obama’s executive orders, especially his order deferring deportation for many undocumented immigrants. In a press release, Jindal castigated Obama for “bypassing Congress” and “ignoring the American people,” slamming the order as “an arrogant, cynical political move.” Jindal seemed to be keenly concerned that Obama imposed his policy preference by executive fiat rather than allowing the people, through their elected representatives, to have their say. Now, though, the people’s representatives have firmly rejected Jindal’s bill—and rather than persuading the legislature to reconsider the measure, Jindal has simply imposed it by executive decree.

By the way, Obama’s immigration executive orders are actually materially different from Jindal’s anti-gay one. Through those orders, Obama simply instructed the Department of Homeland Security to defer deporting the parents of American citizens and lawful permanent residents. Why is he allowed to do that? Because Congress gave him permission to do so. Federal law explicitly directs DHS to establish such “national immigration enforcement policies and priorities,” thereby granting the president discretion over deportation policies. Far from seizing legislative authority, Obama is just following Congress’ directive. That’s how an executive leads without breaking the law. Jindal should take note.

Want to hang out with Outward? If you’ll be in or near New York City on Monday, July 13, join June Thomas, J. Bryan Lowder, and Mark Joseph Stern—and special guests Ted Allen, of Queer Eye and Chopped fame, and marriage-equality campaigner extraordinaire Evan Wolfsonfor a queer kiki at an Outward LIVE show, hosted by City Winery. Details and tickets can be found here.