Did ACLU file suit too early?

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Attorney Oliver Diaz (left), executive director of the ACLU Mississippi Jennifer Riley-Collins and plaintiffs Nykolas Alford and Stephen Thomas announce a lawsuit challenging the constitutionality of HB 1523.

Gabriel Austin, Mississippi Today.

Attorney Oliver Diaz (left), executive director of the ACLU Mississippi Jennifer Riley-Collins and plaintiffs Nykolas Alford and Stephen Thomas announce a lawsuit challenging the constitutionality of HB1523.

The typical strategy for challenging a law is to wait until it goes into effect and has an impact on the plantiffs.

Even though HB 1523 — the so-called “religious freedom” bill — doesn’t become law until July 1, the ACLU filed a complaint Monday alleging the impending law is blatantly unconstitutional because it stigmatizes same-sex couples, allowing clerks to treat them differently under state protection.

“Why wait for it to cause injury?” Mississippi College Law School professor Matt Steffey said. “In this case, the law is so blatantly unconstitutional just by reading it that there is no imaginable set of circumstances where this law could be constitutional.”

The ACLU alleges HB 1523 targets “the same class of people that Obergefell (v. Hodges) protects.”

Obergefell is the landmark U.S. Supreme Court decision which held in 2015 that the 14th Amendment does not permit states to prevent homosexual couples from marriages that heterosexual couples are allowed.

The plaintiffs in the Mississippi case, Nykolas Alford, 26, and Stephen Thomas, 26, filed suit against Judy Moulder in her capacity as Mississippi’s state registrar of vital records. In the “religious freedom” bill, the registrar must compile a list of county clerks who decline to grant marriage licenses to same-sex couples. The complaint alleges that the creation of a list that limits the set of governmental employees willing to issue marriage licenses to same-sex couples is unconstitutional.

Professor Emeritus George Cochran at the University of Mississippi School of Law said that the plaintiffs have standing for the suit: “Essentially what the act does is treat same-sex couples as second class citizens. It is stigmatizing portions of the population.”

“Stigma” is a legal term for a situation in which a person has been officially branded by the state in such a way that causes harm. Saying that HB 1523 stigmatizes targeted people means that the law harms segments of the population by treating them with a different set of standards than those used for the rest of the population.

Going a step further, Cochran said, “Any person authorized to give out marriage licenses can deny based on a religious belief or moral conviction. That’s very vague. That’s completely undefinable. That authorizes government employees to treat same-sex couples differently. That demeans them.”

Cochran expressed reservations about the complaint only addressing same-sex couples affected by the “religious freedom” bill. Nonetheless, he is content with the complaint itself:

“It looks to me like a significant lawsuit, well grounded in the United States Constitution.”