Delay appropriate to resolve constitutional question
A Louisiana House panel last week wisely held off on approving health insurance provider contracts, but the prudential value of this action will decay rapidly.
The House Appropriations Committee refused to act upon approval of these, which relate to the state providing health insurance to its employees beginning Jan. 1, because of legally-questionable language. The documents incorporate phrasing from Democrat Gov. John Bel Edwards’ executive order JBE 16-11, that states “contracts for purchases of services … shall include a provision that the contractor shall not discriminate on the basis of … sexual orientation, gender identity….”
The authority a governor has to create protected classes of individuals undefined by law, as are sexual orientation and gender identity, runs counter to opinion #16-0078 issued by Republican Atty. Gen. Jeff Landry. He has taken the matter has to court to resolve the ambiguity, with the case’s next hearing scheduled for Nov. 29.
A ruling on whether the governor has exceeded his authority on the order may or may not be issued on that date. If not, then the matter could remain in limbo awhile longer, which might create a problem. The state must issue a payment to one contractor involved on Dec. 1. The state has indicated it would have a couple of weeks after that to pay, and the vendor states it doesn’t care whether the contract has that language as nothing in its line of business treats any customers differently according to what sexual preferences they exhibit through their behavior.
But this should mean that whoever does lose must, at least temporarily, accept the verdict. If Edwards loses, he should not insist upon the controversial language remaining in those contracts or any others but hope to win on appeal and, if so, reinsert the phrasing in future contracts. Should he not ever garner a favorable ruling, then he formally should reissue the order without the offending words.
The same applies to opponents of the wording. If Edwards wins the initial case, they should allow contracts to go through with the phrasing and hope for a reversal in future cases that would lead to a closing of the door on its use with future contracts, whereupon if they win from there on out Edwards must submit on contract wording unless he wants to acquire the reputation as a governor who puts partisan posturing ahead of the needs of the state. Unless each party at least provisionally accepts the court’s ruling, crucial government activities could grind to a halt.
Because of the constitutional question involved, delay is appropriate – which drew comments from the Edwards Administration regrettably trivializing the matter by declaring the refusal to approve as grandstanding, thereby doing exactly what it criticized the opponents for doing concerning this serious topic of governance. Hopefully, if things go against him, on this issue in the future Edwards will show more maturity and civic-mindedness than he has to date.
If the matter gets settled next week, with the court ruling in favor of Edwards that would legalize formally the power or against him that would invalidate the order, then things may proceed. That doesn’t mean the case ends; likely either party on the losing end would appeal that likely would drag the final disposition out for months.
Posted by Jeff Sadow at 11:45