WASHINGTON — A federal judge in Mississippi on Tuesday night ruled that Mississippi's ban on same-sex couples' marriages is unconstitutional — but the decision has been put on hold for two weeks.
"Today's decision may cause uneasiness and concern about the change it will bring," U.S. District Court Judge Carlton Reeves wrote. "Mississippi continues to change in ways its people could not anticipate even 10 years ago. Allowing same-sex couples to marry, however, presents no harm to anyone. At the very least, it has the potential to support families and provide stability for children."
In the 72-page ruling, Reeves found that "[g]ay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry."
The case was brought by same-sex couples seeking marriage and marriage recognition, as well as the Campaign for Southern Equality, and the parties are represented by Roberta Kaplan of Paul Weiss — the lawyer who represented Edie Windsor in her challenge to the Defense of Marriage Act.
In considering the claim that the marriage ban violates the constitutional guarantee of equal protection, Reeves first detailed — for 20 pages — that he believed sexual orientation classifications like the ban should be subjected to heightened scrutiny by the courts. Because the 5th Circuit Court of Appeals, in which Mississippi appeals are heard, has decided that only the lowest level of scrutiny — rational basis review — applies, however, he decided that he could not apply heightened scrutiny. Even under rational basis review, though, he found that same-sex couples "are substantially likely to succeed on their claim that Mississippi's same-sex marriage ban violates the Fourteenth Amendment."
The ruling is stayed for 14 days, under Reeves' order, and "[t]he Circuit Clerk of Hinds County shall continue to issue marriage licenses to opposite-sex applicants and only those applicants until further word from the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court."
In addition to taking any more permanent stay request to the 5th Circuit, Mississippi officials are expected to appeal the ruling itself to the 5th Circuit, which this past week announced it would be hearing oral arguments over the constitutionality of Texas and Louisiana's marriage bans on Jan. 9. It was not immediately clear how the Mississippi case decision would impact the planned 5th Circuit hearing, if at all.
Notably, Reeves took time to respond to the argument made by Judge Jeffrey Sutton in the 6th Circuit Court of Appeals decision upholding four states' bans that the issue is better resolved through the political process. "The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place," Reeves wrote.
Here's the simple and direct way that Reeves opened his lengthy opinion. While he certainly dug deep into legal analysis later, his opening was written, it appeared, so that everyone could understand the case:
Mississippi Attorney General Jim Hood said, as expected, that the state will appeal the ruling and will seek a stay of the trial court ruling from the 5th Circuit Court of Appeals.
"The Office of Attorney General has a statutory duty to argue the constitutionality of our laws," Hood said in a statement. "We will appeal the decision to the Fifth Circuit Court of Appeals and ask for a stay until that court decides the cases presently pending before it."
The state filed its notice of appeal on Wednesday.
The state filed its request at the 5th Circuit Court of Appeals seeking a stay pending appeal.
"The State requests the Court enter a stay no later than December 8, 2014, effective unless and until such time as this Court rules that Mississippi’s traditional laws (and substantively identical laws in Louisiana and Texas) are prohibited by the Fourteenth Amendment," the state argues.
"Absent the immediate entry of an emergency stay, at the opening of business on Wednesday, December 10, 2014, Mississippi circuit clerks will be forced to issue marriage licenses to same-sex couples, in derogation of Mississippi’s strong public policy favoring traditional marriages, as reflected in state statutory and constitutional provisions."