Judge rules clerks must issue marriage licenses to same-sex couples

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U.S. District Judge Carlton Reeves

Cleoinc.org

U.S. District Judge Carlton Reeves

A federal judge has struck down one of the most widely cited parts of the state’s “religious freedom” law, ruling that county clerks will not be able to recuse themselves from issuing marriage licenses to gay and lesbian couples  regardless of their religious beliefs.

U.S. District Judge Carlton Reeves issued the ruling in Campaign for Southern Equality v. Bryant I on Monday, calling House Bill 1523 “the State’s end run around Obergefell.” The U.S. Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriages across the country last year.

“Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session,” Judge Reeves said in his opinion.

Although this ruling forbids county clerks from refusing to issue licenses to gay and lesbian couples, it doesn’t address any other aspects of House Bill 1523, which goes into effect July 1. Private business owners, such as caterers, and other state officials, such as public school counselors, can still refuse marriage-related service to gay, lesbian and transgender Mississippians.

For supporters of House Bill 1523, this ruling weakens a law they have said is essential to protecting the religious beliefs of many Christians in the state.

“If this opinion by the federal court denies even one Mississippian of their fundamental right to practice their religion, then all Mississippians are denied their 1st Amendment rights,” said Lt. Gov. Tate Reeves, one of the bill’s biggest advocates.

“I hope the state’s attorneys will quickly appeal this decision to the 5th Circuit to protect the deeply held religious beliefs of all Mississippians.”

Attorney General Jim Hood said he will wait to see how Judge Reeves rules in two other lawsuits challenging the “religious freedom” law before he decides to appeal.

“Before the law goes into effect on July 1, we expect other rulings from the Court which will explicitly state whether the law is enjoined or whether it goes into effect,” Hood said.

Gov. Phil Bryant signed House Bill 1523 in April. It 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 was intended to protect from litigation anyone who feels their religious beliefs keep them from participating in a same-sex marriage. This includes DJ’s, wedding florists and photographers, but the most cited example was that of county clerks who do not want to issue licenses.

Campaign for Southern Equality v. Bryant I was the second of four legal challenges filed against House Bill 1523, all of which went before Judge Reeves. Last week, Reeves denied the request for a preliminary injunction in the first lawsuit, ACLU vs. Judy Moulder. The other two challenges, Campaign for Southern Equality v. Bryant III and Barber v. Bryant, were heard by Reeves on Thursday and Friday. Because these seek a preliminary injunction, preventing the law from going into effect on July 1, attorneys said they expect Judge Reeves to rule on these cases later this week.

Unlike the other three lawsuits, which tackle the “religious freedom” law in its entirety, Campaign for Southern Equality v. Bryant I, takes on only a narrow section, that involving county clerks. And rather than filing an entirely new lawsuit, the plaintiffs asked the court to reopen their 2015 lawsuit and extend the Permanent Injunction that invalidated the state’s same-sex marriage ban to House Bill 1523.

Roberta Kaplan, attorney for the Campaign for Southern Equality

Gabriel Austin/Mississippi Today

Roberta Kaplan, attorney for the Campaign for Southern Equality

Roberta Kaplan, lead attorney in both Campaign for Southern Equality lawsuits, said this ruling is a good omen for their next lawsuit.

“(Judge Reeves) made it very clear that he intends to enforce his injunction that gay people have the right to marry in Mississippi,” Kaplan said.

“Today’s ruling does nothing to diminish our confidence on the Establishment Clause claim,” she said.

And while she’s pleased with his decision Monday, Kaplan said Campaign for Southern Equality v. Bryant III and Barber v. Bryant are the lawsuits that will ultimately determine whether House Bill 1523 lives or dies.

“Today’s really the appetizer; it’s the equivalent of the pimento cheese dip,” Kaplan said. “The fried chicken and ribs are coming later this week.”

In his ruling, Judge Reeves chastised the state, saying that leaving the decision of whether to issue licenses up to county clerks was essentially passing the buck on d}iscrimination.

“In 2016, Mississippi responded to Obergefell by creating a new way to treat same-sex couples differently than opposite-sex couples. That the differential treatment is now pushed down to county employees should be irrelevant for discover purposes,” Reeves said in his decision.

But Reeves also acknowledged that last year’s permanent injunction had only specified the Hinds County Circuit Clerk. As a result, he ruled that he would reopen the case only so the parties could figure out how to officially notify the other 81 county clerks that the Permanent Injunction applies to them.