HB 1523’s “clerks rule” attacked in court

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The Campaign for Southern Equality took its first swing at the state’s “religious freedom” law on Monday, arguing before U.S. District Court Judge Carlton Reeves that unless the list of county clerks who’ve recused themselves from issuing marriage licenses to gay couples is public, they’ll actually be violating the controversial new law.

This is because House Bill 1523 requires any clerk who doesn’t want to marry gay couples to ensure that his recusal won’t “impede or delay” the proceedings. But the plaintiffs argue that this is impossible unless the couples have this information before they try to marry.

Roberta Kaplan, attorney for the Campaign for Southern Equality

Gabriel Austin/Mississippi Today

Roberta Kaplan, attorney for the Campaign for Southern Equality

“One of the many problems with the statute that we talked about a lot in court today is that gay couples in Mississippi will have no idea, will have no way of knowing if any clerk has done that or not,” said Roberta Kaplan, lead attorney on the Campaign for Southern Equality’s lawsuit.

“And they don’t want to show up at a county clerk’s office with the flowers and the wedding dress and family only to find out that there’s no one there willing to marry them.”

Mississippi Assistant Attorney General Justin Matheny, however, argued that such a scenario was purely hypothetical. Since the law was passed in April, no court clerk has tried to recuse himself from issuing licenses to gay people. He also reminded the court that because of the “impede or delay” clause in House Bill 1523, clerks must take it upon themselves to ensure gay couples will be able to get a marriage license quickly.

“Then it’s on them to make sure that any of these horrible things don’t occur. And if they don’t then they’ve probably violated federal law,” Matheny said. “And they’re also violating the very bill itself that allows them to make the recusal.”

But Kaplan responded that clerks who recuse themselves from issuing marriage licenses to gay couples were probably the least likely to ensure these couples could still get their licenses.

“It’s really like the fox guarding the hen house. And we’re already seeing this problem. We’ve seen it with Kim Davis,” Kaplan said, referring to the Kentucky county clerk who turned her recusal into national headlines after the Obergefell v. Hodges U.S. Supreme Court ruling last summer. “That’s what we’re trying to avoid.”

The next step for this case will be for Judge Reeves to issue his decision.

House Bill 1523, which Gov. Phil Bryant signed in April and goes into effect July 1, singles out three “sincerely held” 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.

Since then, attorneys have filed four separate challenges to the law, all of which were assigned to Judge Reeves. The first, filed by the American Civil Liberties Union in May, argues that the “religious freedom” law segregates gay, lesbian and transgender Mississippians into a separate class of people by making it more difficult for them to obtain a marriage license. But the court denied their request for a preliminary injunction today.

Two other lawsuits also ask for a preliminary injunction against House Bill 1523, one of which is also from the Campaign for Southern Equality. They both argue that endorsing only some religious beliefs while ignoring others violates the Establishment Clause of the First Amendment, which prohibits government from favoring one religion over another. Because of their similarities, Judge Reeves ordered them consolidated for the hearing only. That hearing is set for Thursday and Friday.

Today’s challenge differs from the other cases because the Campaign for Southern Equality has not filed a new lawsuit. Instead, they are asking Judge Reeves to reopen their successful 2014 challenge to the state’s gay marriage ban. In that decision, later upheld by last summer’s Obergefell decision, Judge Reeves ruled that neither the state nor its officers could discriminate against same-sex couples trying to marry.

As a result, Campaign for Southern Equality has asked Judge Reeves to apply his previous ruling to House Bill 1523, which would invalidate the part of the law that allows county clerks to recuse themselves from issuing marriage licenses.

But even as each side debated why the clerk recusal list should be public, the specter of Thursday and Friday’s hearings hung over Monday’s proceedings — at one point, calling into question whether Judge Reeves even needed to issue a decision in today’s lawsuit.

The Equal Protection clause addresses a wider segment of House Bill 1523, so if Judge Reeves issues a preliminary injunction based on Thursday and Friday’s hearing, it would also apply to the defendants in Monday’s hearing. But not the other way around.

As a result, Matheny began his argument by suggesting that Monday’s proceedings might be moot.

“When I was told I was going to be having a hearing in this case, it occurred to me that all this stuff that we talk about today, it would not go into effect on July 1,” Matheny said, addressing the possibility that Judge Reeves could grant a preliminary injunction based on Thursday and Friday’s hearing.

But Kaplan argued that an injunction in Monday’s case was necessary to take every step possible to protect gay couples from what she described as a potentially “humiliating” experience. Citing other gay rights legislation in Mississippi, she pointed out that the decision is likely to be appealed, regardless of outcome, and that this could lead to a stay, allowing the law to take effect in the meantime.

“I think the scope of Thursday and Friday’s hearing is much, much broader than this. There’s no question about that. It really attacks the entire statute rather than the subsection about clerks,” Kaplan said.

“And I hate to give more work to a judge. As a lawyer it’s not a position you ever want to be in, but there definitely will be appeals on all this, and you never know what the 5th Circuit (Court of Appeals) is going to do, so I hope he rules in both matters.”