Mississippi is facing a new challenge to its law that allows state officials to recuse themselves from authorizing same-sex marriages.
The same lawyers who challenged Mississippi’s marriage ban on behalf of a pair of same-sex couples were back in federal court on Tuesday, asking a federal judge to limit the effect of Mississippi’s new anti-LGBT religious refusal law on same-sex couples.
“[T]here can be no such thing as ‘separate, but (un)equal’ marriage for gay and lesbian couples in Mississippi,” the lawyers write in Tuesday’s filing. “The Supreme Court could not have been clearer about this when it said in Obergefell that states must allow same-sex couples to marry ‘on the same terms and conditions’ as all other couples.”
The effort led by Roberta Kaplan — who represented Edith Windsor in her successful challenge to the Defense of Marriage Act — addresses only one provision of HB 1523, which was signed into law by Mississippi Gov. Phil Bryant earlier this year: the “recusal” provision.
The move stands in contrast to the more broad challenge the ACLU filed to on Monday, in which the organization is asking a federal judge to stop the entire new law from going into effect at all.
The recusal provision being addressed in Tuesday’s filing allows government officials who have the authority to “authorize or license marriages” to recuse themselves from doing so for same-sex couples based on sincerely held religious beliefs, so long as those who wish to recuse themselves provide notice to the State Registrar of Vital Records of the Mississippi Department of Health.
“While HB 1523 states that ‘the authorization and licensing of any legally valid marriage [shall] not [be] impeded or delayed as a result of any recusal,’” the motion states, “it leaves the manner of doing so completely up to the person who ‘recused’ him or herself, and provides no enforcement mechanism for making sure that there is no delay or impediment.”
For the Campaign for Southern Equality and the two same-sex couples who had sued to end the marriage ban in the first place, the new law — HB 1523 — was “a slap in the face,” as Joce Pritchett, one of the plaintiffs told BuzzFeed News.
“We'd barely had time to relax in the safety of being a legal family when our own legislature sucker-punched us,” Pritchett wrote. “These are the people we elected to protect us. To say that county clerks can choose not to issue us licenses but continue to issue licenses to straight couples in line behind us is incredibly unfair.”
And so, on Tuesday, lawyers for the couples and the organization asked the judge in their marriage case to reopen that case to expand the permanent injunction he issued last year against Mississippi’s marriage ban.
The lawyers explain in the filing that they are pursuing this unusual path to challenging HB 1523 because the new law “once again seeks to limit the access of gay and lesbian Mississippians to the institution of marriage ‘on the same terms and conditions as opposite-sex couples.’”
After Bryant signed the bill into law, Kaplan sought information from the Department of Health about how they would enforce the recusal provision. An attorney for the Department of Health told Kaplan in a letter dated May 4, “The Office of Vital Records is not an agent, officer, subsidiary, or employee of the only parties to [this] lawsuit, i.e., Governor Phil Bryant, Attorney General Jim Hood, and the Circuit Clerk of Hinds County. … The Office of Vital Records is not subject to the order you seek to enforce.”
As such, and while noting that she disagrees with the state’s interpretation, Kaplan is asking Reeves to expand his injunction to cover the Department of Health explicitly. Additionally, Tuesday’s filing asks Reeves to order that all recusals are posted publicly and that a plan is in place to ensure that “the authorization and licensing of legally valid marriages shall not be impeded or delayed.” Finally, the filing asks for the expanded injunction to include a provision ordering that those seeking a recusal under the new law not be permitted to issue marriage licenses to any couples.
“[A]lthough the most recent efforts by the State of Mississippi to disregard the constitutional rights of LGBT Mississippians through HB 1523 may be somewhat more subtle than the ‘steel-hard, inflexible, undeviating official policy’ of the past,” the lawyers write, quoting from a 1963 appeals court case ordering the end to racial segregation in bus and railway terminals, “the underlying impulse is exactly the same.”
Asked why, after having gone through the initial lawsuit, Pritchett and her family were taking on the new law as well, she told BuzzFeed News they did have “several sleepless nights over the decision” to do so.
“Mississippi is not a place that goes quietly into change. Our marriage license may have claw marks all over it when we die but it will be no less valid,” Pritchett wrote. “In short, we’re doing this because we can. Mississippi will not change without federal help, and our kids, our friends and our friends' kids deserve nothing less than full equality under the law.”