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A federal judge has said plaintiffs can ask the state for names of county clerks who have recused themselves from marrying gay couples, opening the door to the first legal challenge to House Bill 1523 since the law took effect earlier this month.
On Friday, U.S. District Court Judge Carlton Reeves lifted his stay on the 2014 case that challenged Mississippi’s gay marriage ban. This move effectively allows the plaintiffs to test whether the state’s so-called religious freedom law, in effect since Oct. 6, violates Reeves’s 2014 order giving gay couples the right to marry.
The crux of the issue centers on the part of House Bill 1523 that allows county clerks to refuse to marry gay and lesbian couples if they have a “sincerely held religious belief” opposing gay marriage. Because the clerks are not required to make their recusal public, however, attorneys for the plaintiffs argue that this deprives gay and lesbian Mississippians equal access to marriage — thereby violating both Reeves’ 2014 ruling and the 2015 Supreme Court decision that legalized gay marriage nationwide.
Roberta Kaplan, lead attorney on the case, Campaign for Southern Equality v. Bryant I, said allowing the case to proceed gives her clients an opportunity to test whether the religious objections law is actually constitutional.
“We believe that the court is committed to ensuring that there is a uniform process in place statewide that respects the dignity of gay and lesbian couples throughout Mississippi,” Kaplan said. “Whether or not that procedure has to be invoked at this point will depend on whether there are any recusals and, if there are, the number of recusals.”
Attorneys for the plaintiffs have until Oct. 30 to ask the three defendants, Gov. Phil Bryant, Attorney General Jim Hood and Hinds County Clerk Zack Wallace, in writing, for the names of any clerks who have recused themselves. House Bill 1523 requires the State Registrar of Vital Records to keep a list of any clerks who have recused themselves from marrying gay couples. The defendants then have until Nov. 13 to provide the names of any clerk who has recused himself.
Bryant, a vocal proponent of the law and the defendant in the two cases that challenged it before the U.S. Fifth Circuit Court of Appeals, expressed skepticism that reopening the case would actually affect the legality of House Bill 1523.
“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.
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, shortly after Bryant signed House Bill 1523 into law.
However, after reopening the case in 2016, Reeves stayed the order pending the outcome of a federal appeals court decision on a separate case challenging the constitutionality of House Bill 1523. That ruling came down Sept. 29, when the 5th U.S. Circuit Court of Appeals said the plaintiffs did not have standing to challenge the law. After nearly 18 months of delays, House Bill 1523 became law on Oct. 10.
Although the Fifth Circuit’s decision allowed the law to take effect, the three-judge panel did not actually rule on the merits of the case. This contradicted an 2016 federal court ruling, also by Reeves, in which the judge had declared the law unconstitutional. Instead, the Fifth Circuit ruled on a technicality, deciding the plaintiffs did not have standing to challenge the law because they were not able to claim they had been harmed by it until it went into effect.
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.
Bryant signed the bill into law on April 5, 2016.
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.
Kaplan, lead attorney on both Campaign for Southern Equality lawsuits, said that she would consider several types of challenges to House Bill 1523.
“As we keep saying, the Campaign for Southern Equality is committed to doing everything it possibly can to make sure House Bill 1523 is in effect for as short a period as possible,” Kaplan said. “And that includes efforts in the original (Campaign for Southern Equality) case to make sure the clerk provision in HB 1523 is not used in a way that harms gay and lesbian couples seeking to marry.”
Earlier this month, attorneys on a second constitutional challenge to House Bill 1523, Barber v. Bryant, appealed the Fifth Circuit’s decision to the U.S. Supreme Court.