When the Supreme Court says it’s done, then it’s done, right? Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers. In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.
The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi. Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013. Why the wait? This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.
The problem was that Mississippi did not recognize the marriage. For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi. Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional. This woke up the state, which moved to intervene to defend its marriage ban. The chancery court judge upheld the marriage ban and dismissed the divorce petition. Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.
After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell. If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition. The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court. This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation. This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.
The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.
Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi. This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.” Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.” If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling. Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.
Even on the very conservative Mississippi Supreme Court this assertion drew only two votes. Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans. Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits. These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.
The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi. Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith. According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.
Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth. Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else. She was deployed. We struggled. It was hurtful. It was tough. With that we just want the same protection that everyone has for their children.” Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate. That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”
Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.” But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case. The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.