Second challenge filed against “religious freedom” law

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The Campaign for Southern Equality on Tuesday mounted the second federal challenge to the state’s “religious freedom” law in as many days.

The crux of the motion rests on the part of the law allowing clerks to refuse to issue marriage licenses to same-sex couples. Although House Bill 1523 asks any clerks recusing themselves to ensure that they do not “impede or delay” these marriages, the plaintiffs contend this is impossible.

Roberta Kaplan

AP photo/Emily Wagster Pettus

Roberta Kaplan, the lead attorney on a challenge to House Bill 1523.

“We want to make sure that the provision of 1523 that allows clerks to recuse themselves from marrying gay people has absolutely zero impact on the ability of any gay couple to marry,” said Roberta Kaplan, lead attorney on the lawsuit.

Gov. Phil Bryant signed the “religious freedom” law last month. In it, the state singles out three religious beliefs as worthy of protection: that marriage is between one man and one woman; that people should not have sex outside such marriages; and that a person’s gender is set at birth. The law protects from litigation anyone who refuses services to gays, lesbians and transgender individuals because of these beliefs.

The governor did not respond to requests for comment on the motion filed today.

In 2014, Judge Carlton Reeves struck down the section of the Mississippi constitution that prohibited marriage between couples of the same gender. The U.S. Supreme Court later affirmed this ruling in its Obergefell v. Hodges decision that legalized same-sex marriage nationwide.

Tuesday’s motion, which names as defendants the governor, state attorney general and former Hinds County circuit clerk, challenges the constitutionality of House Bill 1523 on the grounds that allowing Mississippi officials to recuse themselves from issuing marriage licenses to gay and lesbian couples violates Reeves’s earlier decision.

“We believe that one thing that the Constitution and, indeed, the Supreme Court made clear is that we can’t have second class marriages or segregated marriage for gay couples anywhere in this country, including Mississippi,” said Kaplan.

“And that view was expressed very cogently and powerfully in Judge Reeves’s initial ruling in this case. So we’re now trying to put steps in place to make sure that doesn’t happen and that the marriages of gay and lesbian couples in Mississippi go through and are treated the same as everyone else’s.”

In addition to the Campaign for Southern Equality, the plaintiffs include now-married couples Rebecca Bickett and Andrea Sanders, and Jocelyn Pritchett and Carla Webb, all of whom were part of the 2014 litigation.

This law requires the state registrar to keep a list of any state officers who recuse themselves. But because the law does not currently require this list to be made public, the Campaign for Southern Equality has asked the court to add the state registrar, who was not a part of the 2014 litigation, as a fourth defendant.

“Under the statute, she’s the one who’s going to have this information. How else are we supposed to know if any other clerks recuse themselves?” Kaplan said. “It’s crazy for us to keep having to file every week or so public information requests. Alternatively we could send a couple into every county clerk’s office in Mississippi and see what happens, but that’s not a convincing argument. Part of our motion is that we need to get the information when it comes in.”

The Campaign for Southern Equality has argued that unless this list is publicly available letting state officials recuse themselves will likely “impede or delay” gay and lesbian marriages. As a result, they want the court to to modify Reeves’s 2014 injunction with two new requirements: that the registrar make this list of clerks who’ve recused themselves public and that these clerks provide a written explanation of the steps they’ve taken to ensure their recusal won’t “impede or delay” the licensing of a same-sex marriage.

“So we’ve moved from this hollow statement in law where there’s no enforcement of this idea to a place where now if (the clerks) ‘impede or delay’ a marriage, they’re violating an injunction,” said Josh Kaye, an attorney on the suit.

On Monday, the American Civil Liberties Union filed the first lawsuit against House Bill 1523. Their suit takes wider aim, arguing that the law’s existence segregates gays, lesbians and transgender Mississippians into a “second class.” If Judge Daniel Jordan rules in favor of this suit, Oliver Diaz, the lead attorney on this case, said his hope is that the entire “religious freedom” law would be overturned.

“In my opinion I think we’ll see several challenges to the law in the coming weeks, as well it should be,” Diaz said. “I think it’s something the state brought on itself. A lot of different people are being harmed by 1523, so I think you’re going to see a lot of different lawsuits.”

Because the Campaign for Southern Equality takes a more narrow approach, a ruling by Judge Reeves in favor of their motion would strike down only the part of the law dealing with county clerks’ right to recuse themselves from marrying same-sex couples.

In the meantime, Kaplan said she expects more challenges to the “religious freedom” law.

“1523 is chock full of Constitutional violations, and this is the motion that only we are seeking to bring at this time,” Kaplan said. “We by no means seek to foreclose additional challenges to the law.”