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TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard No Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

 

Federal Court Blocks Implementation Mississippi HB 1523

Posted on: July 1st, 2016 by Art Leonard No Comments

 Just minutes before Mississippi’s anti-LGBT H.B. 1523 was scheduled to go into effect on July 1, U.S. District Judge Carlton W. Reeves filed a 60-page opinion explaining why he was granting a preliminary injunction to the plaintiffs in two cases challenging the measure, which he consolidated for this purpose under the name of Barber v. Bryant.

 

                According to Judge Reeves, H.B. 1523 violates both the 1st Amendment’s Establishment of Religion Clause and the 14th Amendment’s Equal Protection Clause.  His lengthy, scholarly opinion expands upon some of the points he made just days earlier when he granted a preliminary injunction in a separate lawsuit, blocking implementation of one provision of H.B. 1523 that allowed local officials responsible for issuing marriage licenses to “recuse” themselves from issuing licenses to same-sex couples based on their “sincere” religious beliefs.

 

                Unlike the earlier ruling, the June 30 opinion treats H.B. 1523 as broadly unconstitutional on its face.  Although Mississippi Governor Phil Bryant, the lead defendant in all three lawsuits, announced that the state would immediately appeal to the U.S. Court of Appeals for the 5th Circuit, Reeves’ scholarly opinion seemed likely to withstand judicial review.  Attorney General Jim Hood, Mississippi’s only Democratic statewide elected official and also a named defendant, suggested that he might not be joining in such an appeal, voicing agreement with Reeves’ decision and suggesting that the legislature had “duped” the public by passing an unnecessary bill.  He pointed out that the 1st Amendment already protected clergy from any adverse consequences of refusing to perform same-sex marriages, and that the state’s previously-enacted Religious Freedom Restoration Act already provides substantial protection for the free exercise rights of Mississippians.

 

                At the heart of H.B. 1523 is its Section 2, which spells out three “sincerely held religious beliefs or moral convictions” that are entitled, as found by Judge Reeves, to “special legal protection.”  These are “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at birth.”  According to the statute, any person or entity that holds one or more of these beliefs is entitled to be free from any sanction by the government for acting upon them by, for example, denying restroom access to a transgender person or refusing to provide goods or services to a same-sex couple for their wedding.

 

                Of course, the state may not override federal rights and protections, and the plaintiffs argue in these cases that by privileging people whose religious beliefs contradict the federal constitutional and statutory rights of LGBT people, the state of Mississippi has violated its obligation under the 1st Amendment to preserve strict neutrality concerning religion and its obligation under the 14th amendment to afford “equal protection of the law” to LGBT people.

 

                Reeves, who ruled in 2014 that Mississippi’s ban on same-sex marriage was unconstitutional, agreed with the plaintiffs as to all of their arguments.   For purposes of granting a preliminary injunction, he did not have to reach an ultimate decision on the merits of the plaintiffs’ claims.  It would suffice to show that they are “likely” to prevail on the merits.  But anybody reading Reeves’ strongly-worded opinion would have little doubt about his view of the merits.

 

                In an introductory portion of the opinion, he spells out his conclusions succinctly: “The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others.  Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and adherents that they are insiders, favored members of the political community,’” quoting from a Supreme Court decision from 2000, Santa Fe Independent School District v. Doe, 530 U.S. 290.  “And the Equal Protection Clause is violated by H.B. 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

 

                Much of the opinion was devoted to rejecting the state’s arguments that the plaintiffs did not have standing to bring the lawsuits, that the defendants were not liable to suit on these claims, and that injunctive relief was unnecessary because nobody had been injured by the law.  Reeves cut through these arguments with ease.  A major Supreme Court precedent backing up his decision on these points is Romer v. Evans, the 1996 case in which LGBT rights groups won a preliminary injunction against Colorado government officials to prevent Amendment 2 from going into effect.  Amendment 2 was a ballot initiative passed by Colorado voters in 1992 that prevented the state from providing any protection against discrimination for gay people.  The state courts found that the LGBT rights groups could challenge its constitutionality, and it never did go into effect, because the Supreme Court ultimately found that it violated the Equal Protection Clause.

 

                Judge Reeves ended his introductory section with a quote from the Romer v. Evans opinion:  “It is not within our constitutional tradition to enact laws of this sort.”

 

                In his earlier opinion, dealing with the clerk “recusal” provision, Reeves had alluded to Mississippi’s resistance to the Supreme Court’s racial integration rulings from the 1950s and 1960s, and he did so at greater length in this opinion, focusing on how H.B. 1523 was specifically intended by the legislature as a response to the Supreme Court’s ruling last year in Obergefell v. Hodges, holding that same-sex couples have a constitutional right to marry.  Mississippi legislators made clear during the consideration of this bill that its intention was to allow government officials and private businesses to discriminate against LGBT people without suffering any adverse consequences, just as the state had earlier sought to empower white citizens of Mississippi to preserve their segregated way of life despite the Supreme Court’s rejection of race discrimination under the 14th Amendment.

 

                Reeves quoted comments by Governor Bryant criticizing Obergefell as having “usurped” the state’s “right to self-governance” and mandating the state to comply with “federal marriage standards – standards that are out of step with the wishes of many in the United States and that are certainly out of step with the majority of Mississippians.”  In a footnote, Reeves observed, “The Governor’s remarks sounded familiar.  In the mid-1950s, Governor J.P. Coleman said that Brown v. Board of Education ‘represents an unwarranted invasion of the rights and powers of the states.’”  Furthermore, “In 1962, before a joint session of the Mississippi Legislature – and to a ‘hero’s reception’ – Governor Ross Barnett was lauded for invoking states’ rights during the battle to integrate the University of Mississippi.”  Reeves also noted how the racial segregationists in the earlier period had invoked religious beliefs as a basis for failing to comply with the Supreme Court’s decisions.

 

                Turning to the merits of the case, Reeves addressed the state’s argument that the purpose of the statute was to “address the denigration and disfavor religious persons felt in the wake of Obergefell,” and the legislative sponsors presented it as such, as reflected in the bill’s title: “Protecting Freedom of Conscience from Government Discrimination Act.”  Reeves pointed out what was really going on.  “The title, text, and history of H.B. 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell,” he wrote.  “The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions.  LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status.” (The quotation is from Romer v. Evans.)  “As in Romer, Windsor, and Obergefell,” Reeves continued, “this ‘status-based enactment’ deprived LGBT citizens of equal treatment and equal dignity under the law.”

 

                Because state law in Mississippi does not expressly forbid discrimination because of sexual orientation or gender identity, the state tried to claim that in fact the bill did not have the effect of imposing any new harm.  However, recently the city of Jackson passed an ordinance forbidding such discrimination, and the University of Southern Mississippi also has a non-discrimination policy in place.  “H.B. 1523 would have a chilling effect on Jacksonians and members  of the USM community who seek the protection of their anti-discrimination policies,” wrote Reeves.  “If H.B. 1523 goes into effect, neither the City of Jackson nor USM could discipline or take adverse action against anyone who violated their policies on the basis of a ‘Section 2’ belief.”

 

                The court held that because of the Establishment Clause part of the case, H.B. 1523 was subject to strict scrutiny judicial review, and also pointed out that under Romer v. Evans, anti-LGBT discrimination by the state is unconstitutional unless there is some rational  justification for it.  He rejected the state’s argument that it had a compelling interest to confer special rights upon religious objectors.  “Under the guise of providing additional protection for religious exercise,” he wrote, H.B. 1523 “creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.  It is not rationally related to a legitimate end.”  Indeed, he asserted, “The deprivation of equal protection of the laws is H.B. 1523’s very essence.”

 

                Reeves easily found that the standard for ordering preliminary relief had been met.  Not only was it likely that H.B. 1523 would be found unconstitutional in an ultimate ruling in the case, but it was clear that it imposed irreparable harm on LGBT citizens, that a balancing of harms favored the plaintiffs over the defendants, and that the public interest would be served by enjoining operation of H.B. 1523 while the lawsuits continue.  “The State argues that the public interest is served by enforcing its democratically adopted laws,” he wrote.  “The government certainly has a powerful interest in enforcing its laws.  That interest, though, yields when a particular law violates the Constitution.  In such situations the public interest is not disserved by an injunction preventing its implementation.”

 

                Reeves concluded, “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together.  But H.B. 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.  It must be enjoined.”

 

Federal Court Will Enjoin Part of Mississippi H.B. 1523 to Enforce Equal Protection Rights of Same-Sex Couples

Posted on: June 28th, 2016 by Art Leonard No Comments

 

 

U.S. District Judge Carlton W. Reeves announced on June 27 that he will order Mississippi officials not to enforce part of H.B. 1523, a recently-enacted state law scheduled to go into effect on July 1, because it would circumvent the Supreme Court’s 2015 ruling requiring states to afford equal marriage rights to same-sex couples.   The challenged provision,  Section 3(8)(a), allows Circuit Court Clerks to “recuse” themselves from issuing marriage licenses to same-sex couples if they have a sincere religious belief opposed to same-sex marriage.  The provision says that same-sex couples will be entitled to get marriage licenses, but provides no mechanism to make sure that they can get them in case there is nobody in a particular clerk’s office who has not recused himself or herself.  The Order is published as Campaign for Southern Equality v. Bryant, 2016 U.S. Dist. LEXIS 83036 (S.D. Miss., June 27, 2016).

 

Recalling a 1962 ruling by the U.S. Court of Appeals for the 5th Circuit, Meredith v. Fair, 305 F.2d 343, which “chastised our State for ‘a carefully calculated campaign of delay and masterly inactivity” in response to federal  desegregation orders, Judge Reeves announced that he would “reopen” the Mississippi marriage equality case “for the parties to confer about how to provide clerks with actual notice of the Permanent injunction” and for the parties “to confer on appropriate language to include in an Amended Permanent Injunction.”

 

Robbie Kaplan, a New York attorney who represents the Campaign for Southern Equality, the plaintiff in the Mississippi case, had filed a motion seeking to reopen the case in order to ensure that same-sex couples in the state are not subjected to unconstitutional discrimination because of H.B. 1523.  A large team of pro-bono attorneys from Paul, Weiss, Rifkind, Wharton & Garrison, a New York firm where Kaplan is a partner, is working on the case together with attorneys from several southern states including local counsel from Mississippi.

 

Reeves is also considering two other lawsuits involving challenges and defenses to the constitutionality of other provisions of H.B. 1523, which was explicitly enacted in response to the Supreme Court’s Obergefell v. Hodges decision and which shelters public employees and private businesses from any liability or adverse consequences if they refuse to deal with same-sex couples based on their religious beliefs.   The law also allows government offices and businesses to deny transgender people appropriate access to restrooms and other gender-designated facilities, once again based on a “sincere religious belief” that a person’s gender is immutably determined at birth.  Reeves is expected to issue rulings in those cases shortly.

 

Judge Reeves, an African-American man who was appointed to the district court by President Barack Obama, presided over the Mississippi marriage equality case, Campaign for Southern Equality v. Bryant, issuing a ruling in November 2014 that the state’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment.  He issued a preliminary injunction to that effect on November 25, which was stayed while the state appealed to the 5th Circuit, which, after hearing oral argument in this and cases from other states in the circuit in January 2015, put a hold on the appeal until the Supreme Court decided the Obergefell case.

 

The Obergefell decision, announced on June 26, 2015, said that same-sex couples were entitled to enter into civil marriages “on the same terms and conditions as opposite-sex couples.” “This resolved the issue nationwide,” wrote Reeves, who subsequently issued a Permanent Injunction in response to an order from the 5th Circuit (see 791 F.3d 625) directing him to “act expeditiously on remand and enter final judgment.”  Reeves’ Permanent Injunction ordered that the state “and all its agents, officers, employees, and subsidiaries, and the Circuit Clerk of Hinds County and all her agents, officers, and employees, are permanently enjoined from enforcing Section 263A of the Mississippi Constitution and Mississippi Code Section 93-1-1(2).”

 

Shortly after Reeves issued his injunction, the Mississippi Attorney General’s office advised all 82 Circuit Court clerks to grant marriage licenses “to same-sex couples on the same terms and conditions accorded to couples of the opposite sex.” But in response to this motion, the State argued that the only Circuit Court Clerk bound by the court’s injunction was the Hinds County Clerk, who was named in that Order, because the clerks are county employees rather than state employees.

 

When the Mississippi legislature convened for its 2016 session, it promptly passed H.B. 1523, which was clearly intended to send a message that the state would happily tolerate and protect discrimination against same-sex couples and LGBT individuals by privileging those with anti-gay religious beliefs. This was largely symbolic when it came to discrimination by private businesses and landlords, since Mississippi law does not forbid discrimination because of sexual orientation or gender identity in employment, housing and public accommodations, and it was only after H.B. 1523 was enacted that the city of Jackson became the first jurisdiction in the state to legislate against such discrimination.  Thus, at the time H.B. 1523 was passed, this “privilege” was not necessary to “protect” free exercise of anti-gay religious views by Mississippians.

 

The provisions about bathroom use and marriage licenses threatened to have more significant practical effect, setting up a clash with federal constitutional and statutory requirements. Over the past few months, issue has been joined in several lawsuits in other federal districts contesting whether federal sex discrimination laws override state laws and require employers not to discriminate against LGBT people or deny bathroom access to transgender employees and students. As Judge Reeves pointed out in his June 27 Order, states “lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies.”  In this case, the marriage license provision clearly violates federal constitutional requirements established in the Obergefell decision.

 

“In H.B. 1523,” wrote Reeves, “the State is permitting the differential treatment to be carried out by individual clerks. A statewide policy has been ‘pushed down’ to an individual-level policy.  But the alleged constitutional infirmity is the same.  The question remains whether the Fourteenth Amendment requires marriage licenses to be granted (and out-of-state marriage licenses to be recognized) to same-sex couples on identical terms as they are to opposite-sex couples.”  And the precise question before Reeves was whether it was necessary to modify his 2015 injunction to make it clear that all government employees involved in the marriage process, including the State Registrar and the Circuit Court Clerks, are bound by his injunction.

 

Reeves concluded that the Registrar was clearly bound, but that it would be preferable to make it more explicit that the Circuit Court Clerks are bound as well, since a violation of the injunction would subject them to potential liability, including the costs of defending lawsuits against them and possible contempt penalties if they refused to obey the court’s Order.

 

Much of his June 27 Order was devoted to technical procedural and jurisdictional issues, which he resolved in every instance against the state defendants, from Governor Phil Bryant on down.

 

He also agreed with the plaintiffs that they should be able to conduct discovery against the State Registrar in order to learn which Clerks had filed forms seeking to recuse themselves from issuing marriage licenses. The Registrar, who is supposed to receive those forms under H.B. 1523, had been claiming that since she was not a party to the marriage lawsuit, she was not bound by the court’s injunction and thus not subject to a discovery demand in this case.  Reeves asserted that “there are good reasons to permit discovery from the Registrar strictly for purposes of enforcing the Permanent Injunction.  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 discovery purposes.  The State will have the documents that show exactly where and by whom the differential treatment it authorized in HB 1523 will now occur.  The Plaintiffs should be able to receive that post-judgment discovery from an appropriate State employee, like the Registrar.”

 

Reeves rejected the technical argument that the State, as such, was not a party to the lawsuit. For technical reasons of constitutional law, the State as an entity can’t be sued in federal court by its citizens without its consent, so state officials rather than the State itself are designated as defendants in cases like the marriage equality lawsuit.  But this is really a technicality.  The Attorney General defended the marriage ban using state funds and employees and, Reeves pointed out, it is well established that a federal court “may enjoin the implementation of an official state policy” because the state is “the real party in interest” even though the lawsuit was brought against named state officials.

 

Reeves signaled that the amended form of the Injunction will add language from the Obergefell decision to make clear that same-sex couples are entitled to the same treatment as different-sex couples because, as the 5th Circuit said last July, Obergefell “is the law of the land and, consequently, the law of this circuit.”

 

“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,” wrote Reeves. “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.”