THE LOUISIANA DEPARTMENT OF JUSTICE AND JEFF LANDRY, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR THE STATE OF LOUISIANA
JOHN BEL EDWARDS, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF LOUISIANA
WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF EAST BATON ROUGE
JOHNSON, C.J., would grant the writ application in
part and assigns reasons
grant the Governor's writ application because I believe
the rulings below adopt an unreasonably restrictive view of
executive authority and of the separation of powers
envisioned by the Louisiana Constitution. Requiring state
agencies and state contractors to treat Louisiana citizens
equally is not an ultra vires legislative act by the
executive branch. It is a rational policy choice that is
consistent with the Governor's legal obligation to
faithfully execute the Equal Protection Clause and the broad
remedial purpose of both state and federal
anti-discrimination statutes. The rulings below erode the
authority of the executive branch, and may spell doom for
longstanding anti-discrimination policies at a host of public
institutions. I am dismayed that Louisiana finds itself, yet
again, on the wrong side of history in a matter of civil
rights and social justice.
Order JBE 2016-11 prohibits state agencies from
discriminating based upon "race, color, religion, sex,
sexual orientation, gender identity, national origin,
political affiliation, disability or age." It also
imposes similar non- discrimination requirements upon
companies so long as they voluntarily contract with the state
to provide services. The courts below held that this order -
in particular, the portion of the order prohibiting
discrimination based upon sexual orientation and gender
identity - usurped legislative authority in violation of the
separation-of-powers clause in Article II, § 2 of the
Louisiana Constitution. I disagree.
Governor's anti-discrimination policy is not some novel
exercise of executive power in a domain exclusively reserved
to the Legislature. It is similar to policies enacted through
executive order by recent Governors Edwin Edwards and
Kathleen Blanco, as well as governors in other
states. It mirrors policies currently in place at
LSU, Southeastern, Southern University, McNeese, Nicholls
State, University of Louisiana at Lafayette, and many other
public institutions. These executives and institutions have
enacted more protective policies preventing state government
from discriminating against citizens based on sexual
orientation and gender identity. Few would seriously argue
that a governmental institution violates our Constitution by
adopting internal policies that prevent discrimination
against minority groups.
ruling needlessly diminishes the power of the Governor to
enact policy and oversee the operation of state government.
The Governor has an independent obligation to
"faithfully execute" laws and an implied
obligation to establish reasonable policies in furtherance of
those laws. He also enjoys wide discretion to regulate
the terms of state services contracts. The rulings below
could prevent the administration from enforcing other
policies that have existed for decades when said policy lacks
developments in the area of Title VII underscore the
propriety - and perhaps even the necessity - of the
Governor's anti-discrimination policy. The EEOC recently
has taken the position that discrimination based upon sexual
orientation is a form of sex discrimination under Title
Federal appeals courts have followed suit. Two recent
decisions from the Second and Seventh Circuits argue
persuasively that Title VII sex discrimination extends to
claims brought by homosexuals. The Sixth Circuit reached a
similar conclusion in a case brought by a transgendered
person involving discrimination based upon gender
identity. These cases and agency mandates suggest
that the Governor has not exceeded his authority here, but
has instead complied with his duty to "faithfully
execute" the laws of the United States.
 Exec. Order KBB 04-54 and Exec. Order
EWE 92-7; see also Mont. Const. art. III,
§ 1 (mandating the separation of powers); Mont. Const.
art. II, § 4 (prohibiting discrimination based upon
"race, color, sex, culture, social origin or condition,
or political or religious ideas"); Mont. Exec. Order No.
04-2016 (prohibiting discrimination based upon sexual
orientation and gender identity imposing most robust and
protective anti-discrimination policies for state agencies
and state contracts). Similar orders exist in Kentucky,
Michigan, Delaware, Pennsylvania, and Virginia.
 La. Const. art. IV, §
 See La. R.S. § 39:5
(placing Commissioner of Administration under the authority
and supervision of the Governor); La. R.S. § 39:1651
(authorizing Commissioner of Administration to promulgate
regulations relating procurement of service contracts); La.
R.S. § 39:1654 (placing chief procurement officer under
the authority of the Commissioner of Administration and
authorizing him to provide contractual specifications); La.
R.S. § 39:1617-21 (exempting service contracts from
competitive bidding and selection requirements); La. R.S.
§ 39:1625 (setting forth bare "minimum"
requirements for service contracts).
 Zarda v. Altitude Express,
Inc., No. 15-3775 2018 WL 1040820 at *1 (2d Cir. Feb.
26, 2018) (en banc).
Id.; see also Hively v.
Ivy Tech Comm. College of Ind., 853 F.3 339 (7th Cir.