HB 1523 ruling spurs federal judge to revisit gay marriage case

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AP photo/Emily Wagster Pettus

Roberta Kaplan speaks outside the federal courthouse in Jackson on Nov. 12, 2014.

 

 

 

 

Editor’s note: An earlier version of this story misstated that U.S. District Judge Carlton Reeves lifted a stay to reopen a case about the constitutionality of HB 1523. Judge Reeves has scheduled a conference, but has not ruled on the issue.

Action from a federal judge could cause another wrinkle in the saga of Mississippi’s so-called religious-objections law.

Late Monday, U.S. District Judge Carlton Reeves opened the door to lifting a stay on the 2014 case that successfully challenged Mississippi’s gay marriage ban, raising the question of whether the state’s controversial House Bill 1523, which takes effect Friday, violates an earlier Reeves order giving gay couples the right to marry.

Attorneys for the plaintiffs in Mississippi’s gay marriage case, Campaign for Southern Equality v. Bryant I, first asked Reeves to reopen the case last year. Passed in 2016, House Bill 1523 would, among other things, let county clerks with sincerely held religious objections to gay marriage recuse themselves from issuing marriage licenses to gay couples. Attorneys, however, argued that this recusal could deny gay Mississippians equal access to marriage—thereby violating both Reeves’ ruling and the 2015 Supreme Court decision that legalized gay marriage nationwide.

However, after reopening the case in 2016, Reeves stayed the order pending the outcome of a federal appeals court decision about the legality of HB 1523.

That ruling came down Sept. 29, when the 5th U.S. Circuit Court of Appeals cleared the way for the law to take effect after nearly a year and a half of legal challenges. On Monday, Reeves scheduled a conference with both parties to discuss lifting the stay.

Gov. Phil Bryant, a vocal proponent of the law and the defendant in the two cases that challenged it before the Fifth Circuit, praised the court’s decision in a statement Sunday.

Gov. Phil Bryant

“As I have said from the beginning, this law was democratically enacted and is perfectly constitutional. The people of Mississippi have the right to ensure that all of our citizens are free to peacefully live and work without fear of being punished for their sincerely held religious beliefs,” Bryant said.

Although the Fifth Circuit’s decision allows the law to take effect, the three-judge panel did not actually rule on the merits of the case, in contrast to Reeves’s earlier federal court ruling that had declared the law unconstitutional. Instead, the Fifth Circuit decided the plaintiffs did not have standing to challenge the law because, until it went into effect, they were not able to claim they had been harmed by it.

In his order reopening the case last June, Reeves expressed concern that if House Bill 1523 took effect, it would “significantly change the landscape of Mississippi’s marriage licensing laws.” And he also questioned whether House Bill 1523 was written to protect religious freedom—or to make it more difficult for gay couples to wed in the wake of the U.S. Supreme Court’s decision in Obergefell v Hodges.

“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. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly,” Reeves wrote.

House Bill 1523 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.

Gov. Phil Bryant signed the bill on April 5, 2016.

Cleoinc.org

U.S. District Court Judge Carlton Reeves

In June, Reeves heard arguments from two other cases that challenged the law, Campaign for Southern Equality v. Bryant IV and Barber v. Bryant. On June 30, 2016, minutes before the law would have taken effect at midnight, Reeves struck down House Bill 1523 in a blistering opinion that declared the law “does not honor (this country’s) tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.”

HB 1523 requires any person recusing themselves from marrying gay couples to provide written notice to the state registrar’s office, ordering that the person recusing themselves “take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”

However, the law does not require that list to be made public. In their petition to reopen the case, plaintiffs are seeking the names of any clerks who recuse themselves, arguing that it is impossible to prevent delays unless couples seeking to marry know ahead of time whether their county clerk will recuse himself.

“Defendants should not be permitted to impose a “separate, but (un)equal” system of marriage for gay and lesbian couples in Mississippi,” the plaintiffs wrote in their brief.

In her response to the Fifth Circuit’s decision on Sunday, Roberta Kaplan, lead attorney on both Campaign for Southern Equality lawsuits, said that she would consider several types of challenges to HB 1523.

“Rest assured that we will do everything humanly possible to continue to fight this harmful law on the merits in order to protect our nation’s constitutional values and the LGBT citizens of Mississippi,” Kaplan said.

On Monday, Rob McDuff, lead attorney on Barber v. Bryant, also announced that he would appeal the Fifth Circuit’s decision to the U.S. Supreme Court.

Editor’s note: An earlier version of this story misstated that U.S. District Judge Carlton Reeves lifted a stay to reopen a case about the constitutionality of HB 1523. Judge Reeves has scheduled a conference, but has not ruled on the issue.

  • tonye

    MS. will always remain a poor, backwards state with these kinds of laws. No progressive companies such as Apple or Google or Facebook would ever move to MS nor would any educated and progressive people b/c of the backwoods attitudes and love of discrimination in the state. What a sh*thole state.