UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

SOU i KERN OiSm:CT Of MISSISSiPPI
f'l LE D
I OCT ~~-2014 1

ARTHUR JOHNSTON

BY

_~~ DEPUTY

CAMPAIGN FOR SOUTHERN

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EQUALITY; REBECCA BICKETT;

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ANDREA SANDERS; JOCELYN

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PRITCHETT; and CARLA WEBB,

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Plaintiffs,

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CIVIL ACTION NO. ~:\Y.c.v SIB cwR.-LI2It-

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PHIL BRYANT, in his official capacity as §

Governor of the State of Mississippi; JIM §

HOOD, in his official capacity as

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Mississippi Attorney General; and

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BARBARA DUNN, in her official capacity §

as Hinds County Circuit Clerk,

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Defendants. §

PLAINTIFFS' ORIGINAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Campaign for Southern Equality, Rebecca Bickett, Andrea Sanders, Jocelyn

Pritchett, and Carla Webb complain and allege:

INTRODUCTION

I. This lawsuit is being filed pursuant to 42 U.S.c. § 1983 to redress the serious

deprivation of constitutional rights caused by the provisions in Mississippi's Constitution and

statutes that bar gay couples from marrying simply because they are gay. In doing so, these

constitutional provisions and statutes deny gay couples and their families the dignity enjoyed by

other Mississippians. They also deny gay couples a huge number of significant and concrete

rights, benefits, and duties that automatically come with marriage.

2. The provisions in Mississippi's Constitution and statutes at issue are unconstitutional not only because they deny gay Mississippi couples the right to marry in their own home state, but also because they refuse to recognize otherwise valid marriages between gay couples performed in other states. As of today, as a result of the United States Supreme Court's decision to deny certiorari in appeals from the Fourth, Seventh, and Tenth Circuits, Herbert v. Kitchen, No. 14-124,2014 WL 3841263 (U.S. Oct. 6,2014); Smith v. Bishop, No. 14136,2014 WL 3854318 (U.S. Oct. 6, 2014); Rainey v. Bostic, No. 14-153,2014 WL 3924685 (U.S. Oct. 6, 2014); Schaefer v. Bostic, No. 14-225, 2014 WL 4230092 (U.S. Oct. 6, 2014); McQuigg v. Bostic, No. 14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014); Bogan v. Baskin, No. 14-277,2014 WL 4425162 (U.S. Oct. 6, 2014); Walker v. Wolf. No. 14-278,2014 WL 4425163 (U.S. Oct. 6, 2014), thirty-two states, including Virginia, Utah, and Oklahoma, plus the District of Columbia, allow gay couples to marry. These states together represent more than 60 percent of the United States popUlation.
3. Mississippi's constitutional and statutory provisions arbitrarily discriminate against gay couples, effectively writing inequality into Mississippi law. As a consequence, a discrete but substantial minority of gay citizens in Mississippi suffer from grave deprivation of their rights, in violation of the guarantees of both equal protection and due process as applicable to the states by virtue of the Fourteenth Amendment to the United States Constitution. This clearly unequal treatment not only demeans the dignity of gay couples' commitments to one another but also has great practical significance for them and their families. Under the United States Constitution, it is now clear that such discrimination is quite simply impermissible.
4. Accordingly, Plaintiffs now bring this action and respectfully petition the Court for a declaratory judgment that Section 263A of Article 14 of the Mississippi Constitution and
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Section 93-1-1(2) of the Mississippi Code violate the Fourteenth Amendment to the United States Constitution. Plaintiffs further petition this Court for a preliminary and permanent injunction preventing Defendants from continuing to deprive Plaintiffs of their constitutional right to marriage.
PARTIES 5. Plaintiff Campaign for Southern Equality is a not-for-profit corporation organized under the laws of North Carolina. It works across the South to achieve its mission of promoting the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life. It brings suit on behalf of its members living within the State of Mississippi. 6. Plaintiff Rebecca "Becky" Bickett is a Mississippi resident. She wants to marry her long-time partner, Plaintiff Andrea Sanders, in the State of Mississippi. 7. Plaintiff Andrea Sanders is a Mississippi resident. She wants to marry her longtime partner, Plaintiff Becky Bickett, in the State of Mississippi. 8. Plaintiff Jocelyn "Joce" Pritchett is a Mississippi resident. She legally married Plaintiff Carla Webb in Maine and wants her marriage to be recognized as valid and lawful in the State of Mississippi. 9. Plaintiff Carla Webb is a Mississippi resident. She legally married Plaintiff Joce Pritchett in Maine and wants her marriage to be recognized as valid and lawful in the State of Mississippi. 10. Defendant Phil Bryant is the Governor of the State of Mississippi and is being sued in his official capacity. Governor Bryant is the chief executive of the State of Mississippi and is responsible for insuring compliance with state law. Governor Bryant also bears responsibility for the formulation and administration of the policies of the executive branch,
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including administrative agency policies relating to health insurance coverage, vital records, and taxation, all of which involve recognizing marital status. Governor Bryant was and is acting under the color of state law at all times relevant to this complaint.
11. Defendant Jim Hood is the Attorney General of the State of Mississippi and is being sued in his official capacity. Attorney General Hood is the chief law enforcement officer of the State of Mississippi and is responsible for enforcing and insuring compliance with state law. Attorney General Hood was and is acting under the color of state law at all times relevant to this complaint.
12. Defendant Barbara Dunn is the Circuit Clerk of Hinds County, Mississippi, and is being sued in her official capacity. In Mississippi, the "clerk of the circuit court in each county" is appointed as the "legal custodian of the records and papers relating to marriage licenses," Miss. Code Ann. § 93-1-23, and is charged by state law with the duty of issuing marriage licenses, see Miss. Code Ann. §§ 41-57-48,93-1-5,93-1-11. Circuit Clerk Dunn was and is acting under the color of state law at all times relevant to this complaint. Plaintiffs Becky Bickett and Andrea Sanders previously applied to the Hinds County Circuit Clerk's office for a marriage license and were denied because of the prohibitions on gay marriage in Mississippi law. If relief is granted, they intend to apply again to the Hinds County Circuit Clerk's office for a marriage license.
JURISDICTION AND VENUE 13. This action arises under the Constitution of the United States and the laws of the United States, including 42 U .S.c. § 1983. This Court therefore has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4).
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14. Venue is proper under 28 U.S.C. § 1391 because Defendants Phil Bryant and Barbara Dunn reside in this district, Defendant Hood's office is in this district, and all Defendants reside in the State of Mississippi. Venue is also proper because a substantial part of the events giving rise to this action occurred in this district.
15. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.c. §§ 2201 and 2202.
16. This Court has personal jurisdiction over Defendants because they are domiciled in Mississippi.
FACTS A. The Plaintiffs
1. The Campaign for Southern Equality 17. The Campaign for Southern Equality was incorporated in 2011, in order to advocate for the full humanity and equality of lesbian, gay, bisexual and transgender people in American life and to increase public support for their rights. Based in Asheville, North Carolina, the Campaign for Southern Equality works throughout the South to promote equality by encouraging gay couples to request marriage licenses where they live in order to call for the right to marry, providing organizational support and training to local leaders, and engaging in litigation to vindicate the rights guaranteed by the Constitution of the United States. Since 2012, it has worked actively with lesbian, gay, bisexual and transgender people across Mississippi. The Campaign for Southern Equality has members in the State of Mississippi.
2. Becky Bickett and Andrea Sanders 18. Becky Bickett and Andrea Sanders have been together for ten years and are raising twin sons, whom Becky has legally adopted.
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19. Becky and Andrea were first introduced to each other by their sisters. After a period of dating, they moved in together in 2005, after Hurricane Katrina struck the Mississippi coast and destroyed each of their families' homes. Becky and Andrea's first home was a FEMA trailer. They have lived together ever since.
20. In 2010, Becky and Andrea had a commitment ceremony at the Friendship Oak at the Gulf Park Campus of the University of Southern Mississippi, from which they both graduated.
21. They sought to obtain a marriage license in Hinds County, Mississippi in March 2014, but were denied by the office of the Hinds County Circuit Clerk, who is Defendant Barbara Dunn, pursuant to the laws prohibiting gay marriage in Mississippi. Although they presently reside in Harrison County, Mississippi, they intend to apply again in Hinds County, where they were treated with courtesy in the Circuit Clerk's office, if relief is granted in this case. Marriage licenses obtained in any county in Mississippi are valid throughout the state and allow people to be married anywhere in the state.
22. But for the fact that they are both women, Becky and Andrea are legally qualified to marry under the laws of Mississippi. Each is over the age of 21 and fully competent, and neither is precluded from marriage as a result of having another spouse or being closely related to the other. They are willing to provide the requisite information to receive a marriage license and to pay the required fee. They are able and eager to assume the responsibilities of marriage.
23. Andrea is a stay at home mother, while Becky has worked in geographic information systems mapping. Becky is now actively seeking employment in that field, following the closure of the Northrop Grumman office where she was previously employed.
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Becky purposefully sought employment with Northrop Grumman because it was one of the few employers in Mississippi that offered domestic partnership benefits to Andrea.
24. Becky and Andrea are close with their families, who often come over to their home for holidays and cook-outs. Along with their twin boys, Becky and Andrea enjoy going to the beach and to local family events, such as car shows, parades, and street fairs.
3. loce Pritchett and Carla Webb 25. loce Pritchett and Carla Webb have been together for eleven years and were married in Maine in 2013. They are residents of Hinds County, Mississippi. 26. loce and Carla have two children, ages six and two. loce carried the children. She is their lawful parent, but Carla does not have any parental rights in Mississippi. 27. loce and Carla's family is like any other. They go on family trips to England and Florida; they go to the park to play; and they run errands and keep the house in order. 28. In September 2013, loce and Carla were married in Portland, Maine. loce and Carla decided to get married because they wanted their children to have married parents. Their daughter, who is six years old, told them they should get married. 29. loce and Carla were validly married in Maine. Mississippi would recognize their out-of-state marriage, but for the fact that they are both women. 30. Upon returning from Maine, loce and Carla invited approximately 100 of their friends and family members to their home to celebrate a re-enactment of the marriage. 31. loce and Carla each own their own small businesses: .foce is a civil engineer, while Carla is an endodontist. Because Mississippi refuses to recognize valid out-of-state marriages between gay couples, they face difficult issues involving financial and estate planning.
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32. loce and Carla often have to explain their marital relationship to total strangers, who do not understand the arrangement or whether they actually are married. And they often have to explain why their children have two mothers.
B. Mississippi Denies Gay Couples the Right to Marry and Refuses to Recognize Their Valid Out-or-State Marriages
33. In 1997, the year after the Defense of Marriage Act was passed, Pub. L. 104-199, 110 Stat 2419 (1996), Mississippi amended its domestic relations laws in order to declare that "Any marriage between persons of the same gender is prohibited and is null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi." Miss. Code Ann. § 93-1-1(2).
34. In 2004, the year after Massachusetts' Supreme Judicial Court determined that its state constitution required it to allow gay couples to marry, Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003), Mississippi amended its state constitution to reflect what the above-quoted statute already made clear: "Marriage may take place and may be valid under the laws of this state only between a man and a woman. A marriage in another state or foreign jurisdiction between persons of the same gender, regardless of when the marriage took place, may not be recognized in this state and is void and unenforceable under the laws of this state." Miss. Const. art. 14, § 263A.
C. Plaintiffs' Inability to Marry or Have Their Marriages Recognized in Mississippi Causes Irreparable Harm
35. Mississippi's constitutional and statutory provisions create a legal system in which marriage is exclusively restricted to straight couples. Each and every moment that
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Defendants deny marriage to gay couples deprives Plaintiffs of their constitutional rights and

causes them to suffer irreparable harm.

1.

Family and Parenthood

36. Mississippi law expressly prohibits gay partners from being listed together on a

birth certificate, since only a "mother" and "father" can be listed. See Miss. St. Bd. Of Heath,

Certificate of Live Birth, Form No. 500 (2008), available at http://www.msdh.ms.gov/phs/

Handbook_Reg_Reporting_Vital_Events. pdf (requiring a "husband" to be listed as father where

the birth mother is married). Moreover, two gay parents cannot both adopt a child. Miss. Code

Ann. § 93-17-3(5). These barriers to the legal recognition of the parent-child relationship

between gay parents and their children deprive children of many significant rights and

protections under Mississippi law. See generally, e.g., Miss. Code tit. 37 (Education); Miss.

Code tit. 41 (Public Health); Miss. Code tit. 43 (Public Welfare); Miss. Code tit. 91 (Trusts and

Estates); Miss. Code tit. 99 (Criminal Procedure). These are particularly difficult issues for

couples such as loce and Carla, and Becky and Andrea, who understandably want their children

to have the security and protection of having two legal parents, not one.

2. Retirement and Health Benefits for Public Employees 37. Public employees in Mississippi are entitled to participate III generous state

retirement plans and access affordable healthcare for their families. Certain benefits available

under the various state pension systems are available only to the spouse of a retiree or to the

guardian of the retiree's minor children, and are not available to any other designated

beneficiary. See, e.g., Miss Code Ann. §§ 21-29-329 (spousal survival benefits and continuation

of pension benefits for public employees), 25-11-114 (family benefits upon death prior to

retirement of public employee), 25-13-13 (benefits upon death of highway patrolman). Some

public employees purchase health insurance through a medical plan sponsored by the State. An

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employee's spouse can join the plan, but a gay partner is not allowed to do so. Miss. Code Ann. § 25-15-13 (spouses employees eligible for participation in state life and health insurance plan).
3. Healthcare Decisions 38. Mississippi law presumes that gay people are not qualified or permitted to make medical decisions on behalf of their committed, long-term partners. In the absence of an advance health-care directive, the following individuals, in order of priority, are appointed as surrogates: the decedent's spouse, an adult child, a parent, or an adult brother or sister. Miss. Code Ann. § 41-41-211. Mississippi law does not authorize a gay partner to be in that line of succession.
4. Probate, Transfer of Assets, and Statutory Claims 39. Although Mississippi estate law protects and provides for survIvmg spouses, surviving gay partners are not included within the laws of intestate succession. Miss. Code Ann. §§ 91-1-7 (rules of intestate distribution for a married person), 91-5-25 (providing a surviving spouse with the right to election if the decedent's will does not make satisfactory provision), 915-27 (providing intestate share to spouse where decedent omits spouse from a will). An exemption from Mississippi's estate tax is granted for surviving spouses, Miss. Code Ann. § 279-10, and Mississippi's homestead rights similarly protect surviving spouses, but neither protect surviving gay partners. Miss. Code Ann. § 91-1-23. In the absence of any directive, the surviving spouse-but not a gay partner-is generally appointed the administrator of the estate. Miss. Code Ann. § 91-7-63 (preference for husband or wife to serve as administrator of intestate estate). These provisions significantly complicate financial planning decisions, as is the case for Plaintiffs loce and Carla and Plaintiffs Becky and Andrea. 40. Gay men and women in Mississippi also are excluded from the statutory rights of an action for wrongful death-the cause of action is only available "for the benefit of all persons
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entitled under the law to recover," which excludes gay partners. Miss. Code Ann. § 11-7-13.
Similarly, if there is a workplace accident, a spouse-but again, not a gay partner-is authorized
to collect worker's compensation. Miss. Code Ann. § 71-3-25. And while straight spouses of
certain public employees are entitled to statutory death benefits, gay partners would be excluded
from these benefits if that should happen. See Miss. Code Ann. §§ 21-29-45 (general municipal
employees' survivor's benefits), 21-29-145 (general death benefits for firemen and policemen),
21-29-147 (duty-related death benefits for firemen and policemen), 25-11-114 (public officers
death benefits), 25-13-13 (highway safety patrolmen's death benefits).
5. Taxation 41. Mississippi law authorizes married couples to file joint tax returns. Miss. Code
Ann. § 27-7-31. It also provides various exemptions and credits that specifically benefit married
couples. See, e.g., Miss. Code Ann. §§ 27-7-21 (giving married individuals a twelve thousand
dollar exemption for each year after 1999),27-51-41 (exempting a motor vehicle owned by the
surviving spouse of a deceased member of the United States military who was killed in active
duty from ad valorem taxation), 27-73-9 (permitting a surviving spouse to recover a deceased
spouse's overpaid taxes up to five hundred dollars), 27-33-67 (exempting property owned jointly
by a husband and wife so long as one spouse has fulfilled the age or disability requirement).i
42. In these ways and more, Mississippi's constitution and statutes empower
Defendants and other government officials to deny Plaintiffs the benefits and duties that are
I With rights, of course, come responsibilities. The utter irrationality of Mississippi's statutory scheme is further demonstrated by the fact that gay couples in Mississippi are not only prohibited from receiving any of the benefits of marriage, but they are also exempt from any of its legal obligations. Thus, when a gay couple separates, there are no options available for legallysanctioned divorce, alimony, or child support. See Miss. Code Ann. § 93-5-1, et seq. Moreover, a state employee who is gay is not required to comply with bans on acting in situations giving rise to conflicts of interest. See, e.g., Miss Code Ann. §§ 25-1-53 (prohibiting public officers from employing relatives), 81-14-165 (barring bank representatives from giving loans or gifts to regulators and regulators' "spouses").
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concomitant with marriage. Marriage plays a unique role in American society, with significant social, economic and legal implications. In recognition of the deep and abiding commitment that married couples make to one another, our legal system provides benefits and duties to spouses which are not otherwise available.
43. Mississippi's constitutional and statutory gay marriage bans convey the opposite: they suggest that gay couples are not capable of relationships similar to those between straight spouses and, accordingly, that relationships between gay individuals are inherently less valuable and should not be accorded the same dignity. It is a public, government-sponsored rejection of the most important relationship in the lives of gay Mississippians, relegating them and their families to second-class citizenship. By humiliating and demeaning gay couples, Mississippi law invites and endorses further discrimination against gays.
D. Mississippi's Refusal to Allow or Recognize Marriages Between Gay Couples Is Subject to Heightened Scrutiny
44. Gay people have endured a long and painful history of popular and statesponsored discrimination within the United States, including within Mississippi.
45. This discrimination is based solely on their sexual orientation. It bears no relationship to their ability to contribute to society at large.
46. Sexual orientation is an innate and immutable trait of all people. 47. Gay people lack the political power to protect themselves through the democratic process by overturning discriminatory laws and passing laws that would protect their rights. Indeed, eighty-six percent of Mississippi voters in 2004 voted in favor of a constitutional amendment banning gay marriage.
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E. The Refusal to Allow or Recognize Gay Marriage Does Not Advance Any Governmental Interest
48. Mississippi's prohibitions against gay marriage do not bear even a rational relationship with any valid governmental interests.
49. Excluding gay couples from the institution of marriage does not improve the stability of straight marriages, nor are straight marriages undermined or destabilized by the recognition of marriages between gay couples.
50. Excluding gay couples from the institution of marriage has no impact on childrearing, and the vast majority of benefits and obligations that Mississippi confers on married couples do not relate to children whatsoever.
51. Standing alone, a tradition of historical discrimination against gays cannot provide a legitimate reason for refusing to allow and recognize their marriages. Rather, such a tradition reflects no more than impermissible animus.
CAUSES OF ACTION CLAIM ONE: EQUAL PROTECTION 52. Plaintiffs incorporate by reference paragraphs 1 through 51, supra, as if set forth fully herein. 53. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 54. The provisions of the Mississippi Constitution and code presently at issue deny to persons within Mississippi the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States. By allowing straight couples to marry one another while refusing to allow gay couples to do the same, and by recognizing valid out-of-state
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marriages between straight couples but not valid out-of-state marriages between gay couples, the State of Mississippi impermissibly distinguishes among similarly situated people by discriminating solely on the basis of sexual orientation. By refusing to allow or recognize marriage between gay couples, gay couples are deprived of all of the rights and duties that Mississippi offers straight couples, rendering them unequal before the law and denying their relationships the dignity to which they are constitutionally entitled.
55. Animus, as that term has been construed in cases like Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), and Lawrence v. Texas, 539 U.S. 558 (2003), is the sole basis for the discrimination borne by gay couples in Mississippi. There is no legitimate governmental interest furthered by the constitutional and statutory provisions presently at issue, which serve only to deny gay couples the right to marry and have their otherwise-valid marriages recognized by the State of Mississippi. By relegating gay couples to a disfavored legal status, Mississippi impermissibly creates a second-class caste among its citizens, in violation of the Fourteenth Amendment's guarantee of equal protection of the laws.
56. Mississippi's laws and constitution also violate the Fourteenth Amendment's Equal Protection Clause because they discriminate on the basis of sex. The distinction Mississippi draws between straight and gay couples is implicitly based on an individual's gender: men cannot marry men solely because they are men, nor can women marry women, solely because they are women.
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CLAIM TWO: DUE PROCESS 57. Plaintiffs incorporate by reference paragraphs I through 56, supra, as if set forth fully herein. 58. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 59. The provisions of the Mississippi Constitution and code presently at issue deprive gay couples of the liberties guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. They impinge on the fundamental right to marry and unlawfully refuse to recognize valid out-of-state marriages. In doing so, Defendants stigmatize gay couples, their children, and their families by denying them the dignity and stature afforded to married couples through governmental recognition of their most cherished relationships.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure 57 and 65 60. Plaintiffs incorporate by reference paragraphs I through 59, supra, as if set forth fully herein. 61. This case presents an actual controversy because Defendants' present and ongoing denial of equal treatment of Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment. 62. Plaintiffs seek an injunction to protect their constitutional rights and avoid the injuries described in this complaint. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law.
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63. The State of Mississippi will incur little to no burden in allowing gay couples to marry and in recognizing valid marriages of gay couples from other states, whereas the hardship for Plaintiffs of being denied equal treatment and the denial of a fundamental right is severe, subjecting them to irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
PRAYERS FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court enter an order: 1. Declaring that Miss. Code Ann. § 93-1-1 (2) and Section 263A of Article 14 of the Constitution of Mississippi, as applied to Plaintiffs and on their face, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States; 2. Declaring that the enforcement of Miss. Code Ann. § 93-1-1 (2) and Section 263A of Article 14 of the Constitution of Mississippi violates 42 U.S.c. § 1983 by acting to deprive United States citizens of their rights, privileges and immunities, as secured by the Constitution of the United States; 3. Preliminarily and permanently enjoining the enforcement and application of Miss. Code Ann. § 93-1-1(2) and Section 263A of Article 14 of the Constitution of Mississippi; 4. Awarding Plaintiffs their reasonable costs, expenses, and attorneys' fees pursuant to 42 U.S.C. § 1988; and 5. Granting such other relief as the Court may deem just, equitable and proper.
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Respectfully submitted, Dated: October 20, 2014
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Roberta A. Kaplan * Lead Counsel
Andrew J. Ehrlich* Jaren Janghorbani* Joshua D. Kaye* Warren Stramiello* Jacob H. Hupart* 1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 757-3990 rkaplan@paulweiss.com aehrlich@paulweiss.com jjanghorbani@paulweiss.com wstramiello@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com
WALTON LAW OFFICE
Diane E. Walton* 168 S. Liberty Street Asheville, NC 28801 Tel: (828) 255-1963 Fax: (828) 255-1968 diane@waltonlawoffice.com
*Pro hac vice application forthcoming

By: ~.-~~~~---------­ Ro rt . cuff Bar No. 2532 Sibyl C. Byrd Bar No. 100601 Jacob W. Howard Bar No 103256
767 North Congress Street Jackson, Mississippi 39202 Tel: (601) 969-0802 Fax: (601) 969-0804 rbm@mcdufflaw.com scb@mcdufflaw.com
SILIN & ELLIS
Rita Nahlik Silin Bar No. 102662
Dianne Herman Ellis Bar No. 102893
1161 Robinson Avenue Ocean Springs, Mississippi 39564 Tel: (228) 215-0037 Fax: (228) 284-1889 diannernjd@aol.com rsilin@gmai1.com

Attorneys for Plaint(ffs Campaign/or Southern Equality, Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett and Carla Webb

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 Case 3:14-cv-00818-CWR-LRA Document 30 Filed 11/25/14 Page 1 of 72

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB

PLAINTIFFS

V.

CAUSE NO. 3:14-CV-818-CWR-LRA

PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; JIM HOOD, in his official capacity as Mississippi Attorney General; and BARBARA DUNN, in her official capacity as Hinds County Circuit Clerk

DEFENDANTS

MEMORANDUM OPINION AND ORDER

Two same-sex couples brought this lawsuit challenging Mississippi’s laws prohibiting

same-sex marriage. One couple wishes to marry in Mississippi; the other was married out-of-

state and wants Mississippi to recognize the marriage. A group advocating for gay and lesbian

equality has joined their effort to seek relief on behalf of its members.

The plaintiffs claim that Mississippi’s constitutional and statutory provisions limiting

same-sex marriage (the “same-sex marriage ban”) discriminate against them and other same-sex

couples, depriving them of rights guaranteed under the Fourteenth Amendment to the United

States Constitution. They have moved for a preliminary injunction to stop the State from

enforcing the ban, as well as a declaration that it is unconstitutional.

The State of Mississippi defends its laws. It argues that same-sex marriage should be

defined by tradition and left up to the legislature and the voters. In the event it loses, it asks the

court to stay the preliminary injunction so that the State may appeal without disrupting the status

quo.

Case 3:14-cv-00818-CWR-LRA Document 30 Filed 11/25/14 Page 2 of 72
The court has considered the parties’ briefs and asked questions of their attorneys at a
hearing held November 12, 2014. There are no disputed facts. The only evidence consists of
uncontested affidavits from the plaintiffs. The principal questions are matters of law. That law is
relatively straightforward.
This case is one of many in which gay and lesbian couples ask the judiciary to finally
resolve whether same-sex marriage bans violate the United States Constitution. In the wake of
United States v. Windsor, 133 S. Ct. 2675 (2013), nearly every court presented with the issue has
found such bans unconstitutional.1
The majority of Mississippians disapprove of same-sex marriage. They have made that
abundantly clear through every channel in which popular opinion can be voiced. This court does
not believe that the 86% of Mississippians who voted against same-sex marriage in 2004 did so
with malice, bigotry, or hatred in their hearts. Many were simply trying to preserve their view of
1 See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Latta v. Otter, --- F.3d ---, 2014 WL 5151633 (9th Cir. Oct. 15, 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Guzzo v. Mead, No. 14-CV-200, 2014 WL 5317797 (D. Wyo. Oct. 17, 2014); Hamby v. Parnell, --- F. Supp. 3d. ---, 2014 WL 5089399 (D. Alaska Oct. 12, 2014); General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (W.D.N.C. 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013); Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014); Burns v. Hickenlooper, No. 14-CV-1817, 2014 WL 3634834 (D. Colo. July 23, 2014); Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014); Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014); Baskin v. Bogan, 12 F. Supp. 3d 1137 (S.D. Ind. 2014); Baskin v. Bogan, 12 F. Supp. 3d 1144 (S.D. Ind. 2014); Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014); Latta v. Otter, --- F. Supp. 2d ---, 2014 WL 1909999 (D. Idaho May 13, 2014); Henry v. Himes, 14 F. Supp. 3d 1036 (S.D. Ohio 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013); Gray v. Orr, 4 F. Supp. 3d 984 (N.D. Ill. 2013); Lee v. Orr, No. 13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013); Condon v. Haley, --- F. Supp. 3d ---, 2014 WL 5897175 (D.S.C. Nov. 12, 2014); Bradacs v. Haley, No. 3:13-CV-2351, 2014 WL 6473727 (D.S.C. Nov. 18, 2014); McGee v. Cole, No. 3:13-24068, 2014 WL 5802665 (S.D. W. Va. Nov. 7, 2014); Lawson v. Kelly, --- F. Supp. 3d --, 2014 WL 5810215 (W.D. Mo. Nov. 7, 2014); Rolando v. Fox, --- F. Supp. 3d ---, 2014 WL 6476196 (D. Mont. Nov. 19, 2014); Majors v. Jeanes, --- F. Supp. 3d ---, 2014 WL 4541173 (D. Ariz. Sept. 12, 2014); Marie v. Moser, No. 14-CV-2518, 2014 WL 5598128 (D. Kan. Nov. 4, 2014); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. 2013); Costanza v. Caldwell, No. 13-52 D2 (La. Dist. Ct. Sept. 22, 2014); Wright v. State of Arkansas, No. 60-CV-13-2662 (Ark. Cir. Ct. May 9, 2014); Barrier v. Vasterling, No. 1416-CV-3892 (Mo. Cir. Ct. Oct. 3, 2014). But see DeBoer v. Snyder, --- F.3d ---, 2014 WL 5748990 (6th Cir. Nov. 6, 2014) (upholding four states’ same-sex marriage bans); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014) (upholding Louisiana’s same-sex marriage ban); Conde-Vidal v. Garcia-Padilla, --- F. Supp. 3d ---, 2014 WL 5361987 (D.P.R. Oct. 21, 2014) (upholding Puerto Rico’s same-sex marriage ban).
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what a marriage should be, whether by religion or tradition. They deserve an explanation as to why same-sex marriage is now sweeping the country.
It has become clear to the court that people marry for a number of reasons: marriage is a profound source of emotional support; marriage is a private and public expression of commitment; some marry in exercise of their religious beliefs; some do so because it opens the door to economic and government benefits; there are those who marry to present a certain status or image; and others do it for the noble purpose of legitimizing their children. In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:
Can gay and lesbian citizens love? Can gay and lesbian citizens have long-lasting and committed relationships? Can gay and lesbian citizens love and care for children? Can gay and lesbian citizens provide what is best for their children? Can gay and lesbian citizens help make their children good and productive citizens? Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity? Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice? Answering “Yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage. The court concludes that Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to
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such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and

Equal Protection Clauses of the Fourteenth Amendment.

I. Background

A.

The Parties

1. Campaign for Southern Equality

The Campaign for Southern Equality (CSE) is a non-profit advocacy group based in

Asheville, North Carolina, that works across the South to promote “the full humanity and

equality of lesbian, gay, bisexual, and transgender people in American life.” Docket No. 1, at 3.

CSE brought this suit on behalf of its members who currently live in Mississippi and claim harm

from Mississippi’s same-sex marriage ban. Id.

2. Rebecca “Becky” Bickett and Andrea Sanders

Becky Bickett and Andrea Sanders are partners who have shared a committed

relationship with each other for 10 years. Together they raise twin 16-month-old boys, whom

Becky legally adopted. Andrea has no parental rights.

Becky and Andrea were introduced to each other by their sisters. Shortly thereafter, they

began dating. After Hurricane Katrina destroyed their homes in 2005, they started living

together. Becky and Andrea have lived together as a couple ever since. At their Harrison County

home, they regularly host holiday events and cook-outs with their families, with whom they are

close. They enjoy going to the beach, car shows, parades, and street fairs with their boys.

Becky and Andrea both graduated from the University of Southern Mississippi. Becky

previously worked for Northrop Grumman – a job she sought out because it was one of the few

local employers that offered domestic partnership benefits to Andrea – but her office closed. She

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is currently seeking employment in geographic information systems mapping, a field in which she has experience. Andrea stays at home to care for their boys.
In 2010, Becky and Andrea had a commitment ceremony. In March 2014, they sought to make their commitment legal by applying for a marriage license in the Hinds County Circuit Clerk’s office. They were denied a marriage license because they are both women.
3. Joce Pritchett and Carla Webb Joce Pritchett and Carla Webb have been a couple for 11 years. They currently live in Hinds County, where they raise two children, ages six and two. Joce carried the children and is their lawful parent. Carla has no parental rights. Joce graduated from Mississippi State University with a degree in civil engineering. Carla graduated from Millsaps College and the University of Mississippi School of Dentistry. Both own small businesses: Joce works as a civil engineer and Carla is an endodontist. Joce and Carla’s six-year-old daughter told them that she wanted them to marry, and Joce and Carla agreed. They traveled to Maine in September 2013 and got married. Upon returning to Mississippi, Joce and Carla held a ceremony at their home to celebrate their marriage, which was witnessed by approximately 100 friends and family members. Joce and Carla say that their family functions as any other: they take trips to Florida, play with their kids at the park, and work to keep their house in order. Due to Mississippi’s refusal to recognize same-sex marriage, Joce and Carla claim that their family is burdened by Carla’s lack of parental rights, significant financial and estate planning obstacles, and the regular need to explain to others why their children have two mothers.
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4.

The Defendants

Governor Phil Bryant is sued in his official capacity, as is customary in constitutional

challenges like this. He is the State’s “supreme executive officer” and is statutorily required to

“see that the laws are faithfully executed.” Miss. Code Ann. 7-1-5(a), (c); see Barbour v. State ex

rel. Hood, 974 So. 2d 232, 240 (Miss. 2008) (“Execution is at the core of executive power.”).

Attorney General Jim Hood is sued in his official capacity. He is required to “intervene

and argue the constitutionality of any statute when notified of a challenge thereto.” Miss. Code

Ann. § 7-5-1; see Kennington-Saenger Theatres v. State ex rel. Dist. Att’y, 18 So. 2d 483, 486

(Miss. 1944) (“As to all litigation, the subject-matter of which is of state-wide interest, the

Attorney General alone has the right to represent the state.”).

Hinds County Circuit Clerk Barbara Dunn is charged with issuing marriage licenses and

keeping records relating to marriage licenses in Hinds County. See Miss. Code Ann. §§ 41-57-

48, 93-1-5, 93-1-11, & 93-1-23. She too has been sued in her official capacity.

B.

Mississippi Law

The plaintiffs seek to preliminarily enjoin the defendants from enforcing Mississippi

Code Section 93-1-1(2) and Section 263A of the Mississippi Constitution.

1. Mississippi Code Section 93-1-1(2)

On May 5, 1993, the Supreme Court of Hawaii became the first in the nation to recognize

the possibility that same-sex couples had a right to marry. Baehr v. Lewin, 74 Haw. 530, 571-80

(1993) (ruling that the denial of marriage to same-sex couples may violate the equal protection

clause of the Hawaii constitution). The Hawaii proceedings were later preempted by a state

constitutional amendment, but the seed of same-sex marriage as a legal right had been planted. In

response, Congress passed the Defense of Marriage Act (DOMA) in 1996. Pub. L. No. 104-199,

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110 Stat. 2419 (1996), invalidated in part by Windsor, 133 S. Ct. at 2675. DOMA excluded same-sex partners from the federal definitions of “marriage” and “spouse.” Id.
It is not clear whether Mississippi’s laws expressly forbade same-sex marriage at that time. But in the wake of Hawaii’s ruling and with the introduction of DOMA, some Mississippi officials thought it imperative to outlaw same-sex marriage to protect Mississippi’s interests. In 1996, Governor Kirk Fordice, an ardent opponent of same-sex marriage,2 signed an executive order banning same-sex marriage in Mississippi. Ronald Smothers, Mississippi Governor Bans Same-Sex Marriage, N.Y. Times, Aug. 24, 1996. Mississippi was the first State to attempt to do so by executive order. Id.
The following year, in February 1997, the Mississippi Legislature passed a bill prohibiting same-sex marriage. Governor Fordice signed the bill into law. The law states:
Any m arriage between persons of the sam e gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid m arriage in Mississippi. Miss. Code Ann. § 93-1-1(2). This provision amended Mississippi’s domestic relations laws, officially preventing same-sex marriages from being conducted or recognized in Mississippi.
2. Section 263A of the Mississippi Constitution The amendment to the Mississippi constitution that bans same-sex marriage arose from similar concerns. By 2003, two cases were perceived to have substantially advanced same-sex marriage. The United States Supreme Court found that state laws criminalizing private, consensual sodomy violated the Fourteenth Amendment’s Due Process Clause. Lawrence v.
2 In a news conference announcing efforts to stifle same-sex marriage, Governor Fordice declared that “same-sex marriage makes a mockery out of the institution of marriage, which is already embattled.” Ronald Smothers, Mississippi Governor Bans Same-Sex Marriage, N.Y. Times, Aug. 24, 1996. Political enthusiasts will note a certain amount of irony in that statement. See Jere Nash & Andy Taggart, Mississippi Politics: The Struggle for Power, 1967-2006 272-73 (2006); Ryan Lizza, Mr. Quayle’s Wild Ride, Indianapolis Monthly, Oct. 1999, at 218.
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Texas, 539 U.S. 558, 578 (2003). The Massachusetts Supreme Judicial Court (that state’s highest

court) then found that its ban on same-sex marriage was unconstitutional under its state

constitution. Goodridge v. Dep’t of Pub. Health, 440 Mass. 309 (2003).

In Mississippi, these decisions fermented a debate on whether Mississippi should amend

its constitution to curtail any impact that these rulings might have on State marriage laws. The

goal was to stop any recognition within Mississippi of marriages legally performed outside the

State. See Jean Gordon, ‘Issue Not Going Away,’ The Clarion-Ledger, Oct. 29, 2004 (reporting

that according to Rep. Jim Barnett, the principal author of the marriage amendment, the

Massachusetts ruling “prompted” Mississippi’s constitutional amendment). Mississippi

lawmakers swiftly passed legislation allowing the voters to amend the State constitution and

enshrine their views on same-sex marriage in a more permanent form.

In November 2004, an overwhelming majority of Mississippi’s voters approved the

constitutional amendment. It states:

Marriage may take place and m ay be va lid u nder th e la ws of this State only between a m an and a wom an. A m arriage in another State or foreign jurisdiction between persons of the s ame gender, regardless of when the m arriage took place, may not be recognized in this S tate and is void and unenforceable under the laws of this State.

Miss. Const. art. XIV, § 263A.

II. Threshold Questions

A.

Standing

Article III of the United States Constitution limits federal courts to deciding actual cases

or controversies. U.S. Const. art III, § 2. Standing is a vital component of the case-or-controversy

requirement. Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 386 (5th Cir. 2003).

Although not raised by the parties, the court is obliged to consider whether the plaintiffs have

standing to bring forth their complaint in this forum. FW/PBS, Inc. v. City of Dall., 493 U.S. 215, 8

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231 (1990) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines.”).
As the party invoking federal jurisdiction, the plaintiffs bear the burden of establishing the three essential elements of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt. Council, 364 F.3d 269, 272 (5th Cir. 2004).
“To show injury in fact, a plaintiff must demonstrate an injury that is concrete, distinct and palpable, and actual or imminent.” Id. (citation and quotation marks omitted). “[I]njury in fact is the invasion of a legally protected interest.” Pederson v. La. State Univ., 213 F.3d 858, 870-71 (5th Cir. 2000) (citation and quotation marks omitted). The second requirement is satisfied when there is a sufficient causal connection between the plaintiff’s injury and the defendant’s conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing’s redressability requirement is satisfied when it is “likely” that the injury will be “redressed by a favorable decision.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).
When considering whether a plaintiff has standing, a court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975). A case with multiple plaintiffs survives as long as at least one plaintiff has standing. Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264 (1977).
Taking as true the allegations in the complaint, it is evident that Becky Bickett, Andrea Sanders, Joce Pritchett, and Carla Webb have standing. These couples are all residents of Mississippi, where they are subject to laws which deny Becky and Andrea the right to marry and
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deny recognition of Joce and Carla’s out-of-state marriage. Mississippi law causes them other substantial harms affecting not only their lives, but the lives of their children as well.
The tangible injuries alleged by the plaintiffs include the denial of tax benefits and denial of the protection of the State’s estate laws. Docket No. 1, at 10-11; see, e.g., Miss. Code Ann. §§ 27-7-31(2) (allowing married persons to file joint tax returns); 27-7-21(c) (giving married couples a $12,000 joint income tax exemption each year); 41-37-25(b) (providing that surviving spouses are among the individuals authorized to consent to the performance of an autopsy); 91-525 (granting surviving spouses the right of election if the will does not contain satisfactory provisions); 91-5-27 (granting surviving spouses rights to share in the deceased spouse’s estate where the will does not provide for them); 91-7-63 (granting surviving spouses first preference to serve as administrator of intestate estate).
Plaintiffs also claim intangible harms, stating that “Defendants stigmatize gay couples, their children, and their families by denying them the dignity and stature afforded to married couples through governmental recognition of their most cherished relationships.” Docket No. 1, at 15. “Stigmatic injury stemming from discriminatory treatment is sufficient to satisfy standing’s injury requirement if the plaintiff identifies some concrete interest with respect to which he or she is personally subject to discriminatory treatment and that interest independently satisfies the causation requirement of standing doctrine.” Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014) (citation, quotation marks, brackets, and ellipses omitted). Perhaps the most significant stigmatic injury suffered by the plaintiffs arises from the fact that one plaintiff in each couple lacks parental rights over the children she loves and is raising. See Docket No. 1, at 9.
When Becky and Andrea sought a marriage license from the Hinds County Circuit Clerk, they were denied because they are a same-sex couple. The denial of this license constitutes an
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injury for standing purposes. See Bostic, 760 F.3d at 371. Becky and Andrea’s denial can be traced to Mississippi’s marriage laws, defended here by the Attorney General. Declaring those laws unconstitutional and enjoining their enforcement would redress their injuries.
Joce and Carla’s situation is slightly different because they were married in Maine. Nevertheless, their economic and stigmatic injuries are otherwise identical to Becky and Andrea’s, and they too would see those injuries remedied if the defendants were enjoined from enforcing Mississippi’s same-sex marriage ban.
CSE also has standing to sue on behalf of its members. Its members allegedly suffer the same injuries as the plaintiffs, plus some of the injuries imposed by State law which do not appear to be imposed upon the plaintiffs. See, e.g., Miss. Code Ann. §§ 21-29-329(1) (authorizing municipalities “to allow those spouses who are receiving retirement benefits . . . to continue to receive the spouse retirement benefits for life even if the spouse remarries.”); 25-11114 (granting certain benefits to surviving spouses of public employees who die prior to retirement); 25-15-13 (providing life and health insurance coverage eligibility to spouses of state employees). At oral argument, counsel for plaintiffs stated that she is aware of gay and lesbian Mississippians who are denied the benefits Mississippi law affords spouses of public employees, due to their inability to marry their partner. See infra Part IV.C.
Associational standing is satisfied when “(1) the association’s members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (citation omitted).
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The allegations in the complaint support that CSE’s members would independently have standing to seek the relief described in this suit alongside the individual plaintiffs, and would be satisfied by a judgment against these defendants. It also is evident that CSE’s mission is aligned with its goals in this suit. Additional members need not participate because the questions presented are legal, not factual.
Accordingly, all of the plaintiffs have standing to bring these claims. B. Baker v. Nelson The State argues that the plaintiffs’ claims are foreclosed by Baker v. Nelson. In that case, Richard Baker claimed that his constitutional rights were violated when he was denied a license to marry a man. 191 N.W.2d 185 (Minn. 1971). The Supreme Court of Minnesota found that he had no such right under the Due Process or the Equal Protection Clauses of the Fourteenth Amendment. Id. at 186. The United States Supreme Court dismissed his appeal, stating in a onesentence order that it failed to present “a substantial federal question.” 409 U.S. 810 (1972). The Supreme Court has instructed that summary dismissals “do not . . . have the same precedential value here as does an opinion of this court after briefing and oral argument on the merits.” Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979) (citation omitted). It has also instructed that “unsubstantial” federal questions remain so “except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975) (citation omitted and emphasis added).3 This suggests that when summary
3 The Supreme Court has regularly revisited issues it once considered unsubstantial, finding them to be quite significant on further review. The Second Amendment is one recent example. Compare Burton v. Sills, 394 U.S. 812 (1969) with District of Columbia v. Heller, 554 U.S. 570 (2008). Sunday Blue Laws were deemed unsubstantial “only a few years before” the Court found “200 pages worth” of legal issues in which to sink its teeth. Port Auth. Bondholders Protective Comm. v. Port of New York Auth., 387 F.2d 259, 262 n.3 (2d Cir. 1967) (citations omitted). Laws criminalizing sodomy are another example. Compare Crawford v. Missouri, 409 U.S. 811 (1972) with Lawrence, 539 U.S. at 567. A challenge to interracial marriage bans was also summarily denied 11 years before the Supreme Court took up Loving v. Virginia, 388 U.S. 1 (1967). See Naim v. Naim, 350 U.S. 985 (1956) (refusing to disturb ruling by Virginia’s highest court applying anti-miscegenation law to void marriage between a white woman
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dismissals are challenged, lower federal courts should examine subsequent Supreme Court decisions issued after full briefing and oral argument, if any, and consider whether they have cast doubt upon the summary dismissal.
A review of the last four decades of constitutional law shows that Baker has effectively been preempted by major doctrinal developments in anti-discrimination law and same-sex rights. When Baker was decided in 1972, sex classifications did not receive heightened scrutiny and gay and lesbian citizens were not entitled to equal dignity under the law. Forty-two years later, the law in these areas has changed fundamentally. See Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982); United States v. Virginia, 518 U.S. 515 (1996); Romer v. Evans, 517 U.S. 620, 635 (1996) (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.”); Lawrence, 539 U.S. at 567 (“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”); Windsor, 133 S. Ct. at 2694 (finding DOMA unconstitutional in part because “it humiliates tens of thousands of children now being raised by same-sex couples”).
Windsor is the most illustrative example. When the case was before the Second Circuit, that court looked at the doctrinal developments and concluded that Baker lacked “resonance.” Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012). A dissent argued that “Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court.” Id. at 194 (Straub, J., dissenting). Windsor’s opponents then asked the Supreme Court to
and an Asian man). The Supreme Court summarily dismissed Naim even though the California Supreme Court had taken a forward-looking view of the Fourteenth Amendment two decades before Loving. See Perez v. Lippold, 198 P.2d 17, 29 (Cal. 1948) (concluding that California’s anti-miscegenation law violated the Federal Constitution).
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reverse, in part by emphasizing Baker’s “precedential effect.” Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives at 26, United States v. Windsor, No. 12-307 (U.S. Jan. 22, 2013). The case presented a prime opportunity to discuss the ongoing relevance of Baker to same-sex marriage rights.
Not a single Justice, however, thought the case worthy of engagement. It was not cited in the majority opinion or any of the three dissenting opinions. Instead, the Court explained in great detail the harmful effects marriage restrictions have on gay and lesbian citizens and their children. Windsor, 133 S. Ct. at 2694-95. This reasoning is fundamentally contrary to Baker. If Baker lacked resonance when the Second Circuit resolved Edith Windsor’s case, it was dead in the water when the Supreme Court was finished with it.
Here, the State argues that the Supreme Court has never explicitly overruled Baker. But that is not the standard. The Court’s instruction was to examine “doctrinal developments.” Hicks, 422 U.S. at 344. They are legion. At oral argument, despite its valiant effort, the State could not persuasively explain otherwise. Nor could it explain what further doctrinal developments could possibly be necessary to render Baker irrelevant.
Four decades of major changes in this area of the law are enough. Baker does not prevent this Court from reaching the merits of the plaintiffs’ claims.
This conclusion aligns with decisions from four out of the five circuit courts of appeal to consider the constitutionality of same-sex marriage bans post-Windsor. Bostic, 760 F.3d at 375; Baskin v. Bogan, 766 F.3d 648, 660 (7th Cir. 2014); Latta v. Otter, --- F.3d ---, 2014 WL 4977682, at *3 (9th Cir. Oct. 7, 2014); Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir. 2014). But see DeBoer v. Snyder, --- F.3d ---, 2014 WL 5748990, at *7 (6th Cir. Nov. 6, 2014). As
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Judge Posner wrote, “Baker was decided in 1972 – 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.” Baskin, 766 F.3d at 660.
This issue merits a final aside. Last month, the Supreme Court allowed same-sex marriage to proceed in Idaho, Indiana, Nevada, Oklahoma, Utah, Virginia, and Wisconsin. Adam Liptak, Supreme Court Allows Same-Sex Marriage in Idaho, N.Y. Times, Oct. 10, 2014; see Rainey v. Bostic, 135 S. Ct. 286 (2014) (declining to review the Fourth Circuit’s decision finding Virginia’s same-sex marriage ban unconstitutional); Walker v. Wolf, 135 S. Ct. 316 (2014) (declining to review the Seventh Circuit’s decision finding Indiana and Wisconsin’s same-sex marriage bans unconstitutional); Herbert v. Kitchen, 135 S. Ct. 265 (2014) (declining to review the Tenth Circuit’s decision finding Utah’s same-sex marriage ban unconstitutional). Even more recently it has declined to stay same-sex marriage in Kansas and South Carolina. Robert Barnes, Supreme Court Clears Way for Same-Sex Marriage in S.C., Wash. Post, Nov. 20, 2014.
Several of these States asked the Supreme Court to rule against same-sex marriage based on Baker. E.g., Petition for a Writ of Certiorari at 4, Herbert v. Kitchen, No. 14-124 (U.S. Aug. 5, 2014) (“the panel majority’s decision contravenes this Court’s own decision in Baker v. Nelson”); Emergency Application of Governor C.L. “Butch” Otter to Stay Mandate Pending Disposition of Applications for Stay Pending Rehearing And Certiorari at 16-17, Otter v. Latta, No. 14A374 (U.S. Oct. 8, 2014) [hereinafter Idaho Brief] (“Another indication of a good prospect of reversal by this Court is that the Ninth Circuit’s decision conflicts with this Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972). . . . Baker will be highly relevant because it decided the very issue presented here.”).
The Court could have granted these petitions and issued short, per curiam decisions reversing the Fourth, Seventh, Ninth, and Tenth Circuits. The Justices have not hesitated to use
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that device in the past. See Johnson v. City of Shelby, Miss., 135 S. Ct. 346 (2014) (per curiam);

Tolan v. Cotton, 134 S. Ct. 1861 (2014) (per curiam). But they did not correct same-sex

marriage. The fact that the Court declined to halt same-sex marriage in so many states has no

legal meaning in and of itself, but casts further doubt on the continued relevance of Baker.

The undersigned will proceed to the motion for preliminary injunction.

III. The Plaintiffs’ Motion for Preliminary Injunction

A.

Legal Standard

To receive a preliminary injunction, the movant must show “(1) a substantial likelihood

of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not

granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the

defendant; and (4) that the injunction will not disserve the public interest.” Opulent Life Church

v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir. 2012) (citation omitted). “Each of

these factors presents a mixed question of fact and law.” Id. (citation omitted).

“A preliminary injunction is an extraordinary remedy. It should only be granted if the

movant has clearly carried the burden of persuasion on all four . . . prerequisites.” Miss. Power &

Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

B. Substantial Likelihood of Success on the Merits

The movant’s likelihood of success is determined by substantive law. Valley v. Rapides

Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).

Under the Fourteenth Amendment, a state may not “deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. Although this text has not changed in

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nearly 150 years, our understanding of it has changed dramatically. Before turning to today’s
issue, then, it is worth considering some of those historical changes.
In 1896, the Supreme Court found that “separate schools for white and colored children”
did not violate the Fourteenth Amendment. Plessy v. Ferguson, 163 U.S. 537, 544 (1896). In
1954, though, the Court ruled that racially segregated schools were inherently discriminatory and
unconstitutional. Brown v. Board of Education, 347 U.S. 483 (1954). In 1872, a woman was denied a law license solely because she was a woman.4 Bradwell
v. Illinois, 83 U.S. 130 (1872). The Equal Protection Clause was essentially irrelevant when it
came to women. Ninety-nine years passed before the Court “ruled in favor of a woman who
complained that her State had denied her the equal protection of its laws.” Virginia, 518 U.S. at
532 (citation omitted).
In 1986, the Supreme Court said a state could criminalize consensual sex between two men in the privacy of their home. Bowers v. Hardwick, 478 U.S. 186, 188-89 (1986).5 The Court
reversed course within two decades. “Bowers was not correct when it was decided, and it is not
correct today,” it explained. Lawrence, 539 U.S. at 578. These are just a few examples. There are others.6 Even an abbreviated history shows that
millions of Americans were once deemed ineligible for full Fourteenth Amendment protection.
4 As one Justice put it, “in view of the peculiar characteristics, destiny, and mission of woman,” the legislature of Illinois could “ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.” Bradwell, 83 U.S. at 142 (Bradley, J., concurring). 5 In 1986, while Bowers was pending, Justice Powell reportedly told his colleagues that he had never met a homosexual. Adam Liptak, Exhibit A for a Major Shift: Justices’ Gay Clerks, N.Y. Times, June 8, 2013. He did not know that several of his prior law clerks (and one of his current law clerks) were gay. Id. 6 Historically, the exercise of peremptory challenges by prosecutors was not subjected to judicial scrutiny, but in 1986, the same year the Supreme Court decided Bowers, the Court held that a prosecutor’s right to unfettered use of peremptories is subordinate to the equal protection rights of African American jurors. Batson v. Kentucky, 476 U.S. 79 (1986). The equal protection right of the criminal defendant had been extended to the equal protection right of citizens to sit on a jury regardless of race. Id.; see Powers v. Ohio, 499 U.S. 400 (1991); Hernandez v. New York, 500 U.S. 352 (1991) (discriminatory use of peremptory challenges to exclude Latino from jury due to ethnicity is improper). The guarantee since has been expanded to include potential jurors in civil cases where there is no “state”
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But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.
The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.
This was always a risk of our representative democracy. James Madison wrote that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Federalist No. 10. He and his colleagues “knew times can blind us to certain truths.” Lawrence, 539 U.S. at 579. Mistakes would be made.
In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show “that the laws once thought necessary and proper in fact serve only to oppress.” Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person’s rights, and the case must be resolved in his or her favor.
action. In other words, private litigants may not exercise peremptory challenges in a racially discriminatory manner. Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991). Nor may criminal defendants. See Georgia v. McCollum, 505 U.S. 42 (1992). And of course, we know today that parties are prohibited from using their peremptory challenges on the basis of gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). This view of the power of the Equal Protection Clause was a far cry from what the Supreme Court had allowed in years past. See Strauder v. West Virginia, 100 U.S. 303 (1879); Swain v. Alabama, 380 U.S. 202 (1965).
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Through our independent judiciary, we now know that the government cannot systematically exclude women from jury service.7 Taylor v. Louisiana, 419 U.S. 522 (1975). The

government cannot deny citizens their right to possess handguns, even if most people in certain

cities disagree. District of Columbia v. Heller, 554 U.S. 570 (2008). And the government cannot

ban library books the majority finds objectionable. Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico, 457 U.S. 853 (1982). “An elective despotism was not the government we

fought for.” Thomas Jefferson, Notes on the State of Virginia, Query 13 (1785).

The judiciary enforces individual rights against the tyranny of the majority. It does not

matter how political the issue; how reviled the individual; or how vocal, politically savvy, and passionate the majority. That is its duty under Article III of the United States Constitution.8

It is with this understanding that the court considers same-sex marriage.

1.

Due Process

The plaintiffs claim that Mississippi’s same-sex marriage ban “impinge[s] on the

fundamental right to marry” guaranteed by the Due Process Clause. Docket No. 1, at 15. They

assert that “Defendants stigmatize gay couples, their children, and their families by denying them

the dignity and stature afforded to married couples through governmental recognition of their

most cherished relationships.” Id.

The defendants respond that there is no fundamental right to same-sex marriage. Docket

No. 22, at 17. Defendants’ argument is predicated on specific language in Washington v.

7 Fewer than 50 years ago, our State Supreme Court held that “[t]he legislature has the right to exclude women so they may continue their service as mothers, wives, and homemakers, and also to protect them . . . from the filth, obscenity, and noxious atmosphere that so often pervades a courtroom during a jury trial.” State v. Hall, 187 So. 2d 861, 863 (Miss. 1966). 8 Judge Arenda Wright Allen eloquently explained the court’s role when she was faced with this issue in Virginia: “While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.” Bostic v. Rainey, 970 F. Supp. 2d 456, 460 (E.D. Va. 2014); see also Baskin, 766 F.3d at 671 (“Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”).
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Glucksberg, in which the Supreme Court stated that substantive due process analysis has two primary features: “specially protect[ing] those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” and requiring “a careful description of the asserted fundamental liberty interest.” 521 U.S. 702, 720-21 (1997) (citations and quotation marks omitted).
The court sees it differently. Relying on Supreme Court case law, the court concludes that there is no new fundamental right at issue. The question is not whether there is a right to samesex marriage; it is whether gay and lesbian people, like any other group of people, have “the freedom of choice to marry.” Kitchen, 755 F.3d at 1210 (quoting Loving v. Virginia, 388 U.S. 1, 12 (1967)). This court follows the view of the majority of circuits—the Fourth, Ninth, and Tenth—in holding that same-sex couples have the right to marry. Supreme Court jurisprudence on the fundamental right to marry sheds light on how the court reaches its conclusion.
Again, the Due Process Clause prohibits a state from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Supreme Court has not precisely defined “liberty.” See Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The term includes a broad range of interests intrinsic to the meaning of freedom. These interests include “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, . . . [and] to worship God according to the dictates of his own conscience.” Id. (citations omitted). In short, liberty embraces those rights which are fundamental to a free society. See Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting) (arguing that due process protects “those concepts which are considered to embrace those rights which are fundamental; which belong to the citizens of all free governments”) (quotation marks, citation, and ellipses omitted).
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The Supreme Court has made clear that “liberty” extends beyond an enumerated list of
constitutional guarantees.
The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or lim ited by the precise term s of the specific guarantees elsewhere provided in the Constitution. This ‘liberty ’ is not a series of isolated points pricked out in term s of t he taking of prope rty; the freedom of speech, press, and religion; the right to keep and bear arm s; the freedom from unreasonable searches and seizures; and so on. It is a rati onal continuum whic h, broadly speaking, includes a freedom from all substantia l arbitrary im positions and purposeless restraints, and which also recognizes, what a reasona ble and sensitive judgm ent must, that c ertain interests require p articularly careful scrutiny of the state needs asserted to justify their abridgment. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992) (quoting Justice Harlan’s
dissent in Poe) (brackets and ellipses omitted). “At the heart of liberty is the right to define one’s
own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id. at
851.
One of the fundamental rights included in the idea of liberty is the right “to marry,
establish a home and bring up children, . . . and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer,
262 U.S. at 399. Marriage is “one of the basic civil rights of man.” Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 541 (1942).
The right to marry is related to other rights, including the right to privacy. In Griswold v.
Connecticut, for example, health professionals were prosecuted when they helped a married
couple secure contraceptives in violation of a Connecticut statute. 381 U.S. 479 (1965). The
Supreme Court ruled that the statute violated the right to privacy implicit in marital relations.
We deal with a righ t o f privacy older than the Bill of Rights—olde r than our political parties, older than our school system . Marriage is a com ing together for better or for worse, hopefully enduring, and intim ate to the degree of being sacred. It is an associati on that promotes a way of lif e, not causes; a harm ony in living, not political faiths; a bilateral l oyalty, not commercial or social projects.
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Yet it is an association for as noble decisions.

a purpose as any involved in our prior

Id. at 486. As others have pointed out, the Court has also “described marriage as an associational

right” which is “of basic importance in our society.” Kitchen v. Herbert, 961 F. Supp. 2d 1181,

1197 (D. Utah 2013) (citation and quotation marks omitted).

As society’s notion of liberty has changed, the scope of the right to marry has changed

with it. Griswold stands for the proposition that the right to marry also protects the couple’s

choice on when to have children, if ever. In Zablocki v. Redhail, the Court held that the right to

marry extends to fathers with outstanding child support payments who cannot support their children.9 434 U.S. 374 (1978). In Turner v. Safley, the Court held that the right to marry extends

to incarcerated persons who have no children and no opportunity to conceive children. 482 U.S.

78 (1987). These cases illustrate that the right to marry cannot be limited to those who want to

procreate, those who are able to procreate, or those society perceives to be the model family unit.10 See Kitchen, 755 F.3d at 1210-11; Latta, 2014 WL 4977682 at *12 n.1 (Reinhardt, J.,

concurring).

Perhaps the most significant case demonstrating the evolving conception of the right to

marry is Loving v. Virginia. There, the Supreme Court ruled that Virginia’s law banning

interracial marriage violated the Due Process Clause. 388 U.S. 1 (1967). The law deprived

couples of “liberty without due process of law” and denied them the “freedom to marry,” which

“has long been recognized as one of the vital personal rights essential to the orderly pursuit of

happiness by free men.” Id. at 12.

9 The opinion suggests that the father might have avoided the State of Wisconsin’s marriage restriction by moving to another State. Zablocki, 434 U.S. at 377. But a citizen is not required to move to protect his constitutional rights. 10 That said, the right to marry is not absolute. Zablocki, 434 U.S. at 374 (“reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed”). Under current law, for example, a state may ban polygamy. See Reynolds v. United States, 98 U.S. 145 (1878).
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Loving did not redefine marriage or create a new “right to interracial marriage.” Rather, it struck down a law limiting an existing fundamental right on account of race, a governmental classification which is subject to judicial review. Id.; see also Lawrence, 539 U.S. at 577-78 (“neither history nor tradition could save a law prohibiting miscegenation from constitutional attack”). Loving means that fundamental rights like the right to marry are presumptively shared by all persons, and laws restricting these rights are subject to strict scrutiny when the government attempts to limit other groups’ access to them. Accord Glucksberg, 521 U.S. at 721 (applying strict scrutiny to laws “infring[ing]” on “fundamental liberty interests”).
Loving also stands for the proposition that marital rights are articulated broadly. As the Tenth Circuit put it,
Loving was no m ore about the ‘right to interracial m arriage’ than Turner was about the ‘prisoner’s right to m arry’ or Zablocki was about the ‘dead-beat dad’s right to marry.’ Even in cases with such vastly different facts, the Suprem e Court has consistently upheld the right to m arry, as opposed to a sub-right tied to the facts of the case. Kitchen, 755 F.3d at 1210-11 (quoting Latta, 2014 WL 4977682, at *12-13). These cases “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” Bostic, 760 F.3d at 376. Given these precedents, the court concludes that the right at issue today is the right to marry, not the right to marry a person of the same gender. While the latter articulation is more precise, certainly, such a narrow reading is inconsistent with the Supreme Court’s decisions in Meyer, Zablocki, Turner, and Loving. See also Glucksberg, 521 U.S. at 720 (“the ‘liberty’ specially protected by the Due Process Clause includes the right[] to marry”). The court’s conclusion is buttressed by two decisions that recognized the rights of gay and lesbian citizens.
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In

Lawrence, the Court held that the “right to liberty under the Due Process Clause gives

[homosexuals] the full right to engage in their conduct without intervention of the government.”

539 U.S. at 578. In so doing, the Court recognized that the Due Process Clause “afford[s]

constitutional protection to personal decisions relating to marriage, procreation, contraception,

family relationships, child rearing, and education. . . . Persons in a homosexual relationship may

seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574. The Court’s

reasoning indicates that gay and lesbian persons have the same liberty interests as heterosexuals.

In dissent, Justice Scalia declared that the Court’s reasoning opened the door for gay and

lesbian persons to claim a constitutionally-protected right to marry. Id. at 600-05 (Scalia, J.,

dissenting). That proved true.

The second case is Windsor, where the Court struck down part of DOMA because it

“impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex

marriages made lawful by the unquestioned authority of the States.” 133 S. Ct. at 2693. The

opinion described in great detail why the government was not justified in “demean[ing] the

[same-sex] couple, whose moral and sexual choices the Constitution protects,” or in

“humiliat[ing] tens of thousands of children now being raised by same-sex couples.” Id. at 2694.

Although Windsor does not address State statutes and constitutional amendments banning same-

sex marriage, its language leaves no room to allow homosexual citizens, and the children they

love and rear, to be treated as second-class citizens. Windsor compels us to recognize gay and lesbian couples’ substantive due process right to marry.11

11 Windsor is also a case about federalism and States’ traditional authority to regulate marriage. 133 S. Ct. at 268990 (“By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.”). Mississippi maintains that traditional authority. But Windsor did not say that a State’s power to regulate marriage is now unlimited and without constitutional supervision. See id. at 2692 (recognizing that the state interest in regulating marriage is limited by constitutional guarantees); Loving, 388 U.S. at 7 (holding that the States’ power to regulate marriage is limited by the “commands of the Fourteenth Amendment”).
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This conclusion is reinforced by Justice Scalia’s dissent in Windsor, where he again observed that the majority’s reasoning would open the door to strike down state bans on samesex marriage. Id. at 2709-11 (Scalia, J., dissenting). When read in conjunction with Loving and Lawrence, the undersigned must agree.
Gay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry. This conclusion does not conflict with Glucksberg. The right to marry is rooted in history and tradition, but history shows that tradition does not dictate who gets to exercise certain rights. (Any doubt could be resolved by asking Mildred and Richard Loving, Estelle Griswold, William Baird, John Lawrence and Tyron Garner, and Edith Windsor and Thea Spyer.) The State’s narrow interpretation of this right diminishes the importance it has continuously been given by the Supreme Court, contrary to applicable case law. It also serves to undermine the dignity of gay and lesbian citizens by suggesting that they are unworthy of sharing rights fundamental to every free person. See Zablocki, 434 U.S. at 384 (“the right to marry is of fundamental importance for all individuals”); Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”).
Mississippi’s marriage laws violate the plaintiffs’ Due Process rights, unless defendants can show that the laws “are narrowly tailored to serve a compelling state interest.” Glucksberg, 521 U.S. at 721 (citation omitted). The court need not discuss whether these laws withstand the strict scrutiny analysis required when a fundamental right is harmed, however, because the laws fail to survive rational-basis review, a less searching standard, under the Equal Protection Clause.
The court will now turn to that Clause.
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2.

Equal Protection

The Equal Protection Clause directs that “all persons similarly circumstanced shall be

treated alike.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (citation omitted). The “guarantee is both

simple and wide–equal and uniform governmental classifications.” Town of Ball v. Rapides

Parish Police Jury, 746 F.2d 1049, 1056 (5th Cir. 1984). The Fourteenth Amendment ensures

that citizens’ rights to liberty and equality are the same whether you live in the Rocky Mountains

or the Mississippi Delta.

“Notions of what constitutes equal treatment for purposes of the Equal Protection Clause

do change.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 669 (1966). The Clause has been

interpreted broadly for the last several decades. See Town of Ball, 746 F.2d at 1056-57.

“When social or economic legislation is at issue, the Equal Protection Clause allows the

States wide latitude, and the Constitution presumes that even improvident decisions will

eventually be rectified by the democratic processes.” City of Cleburne, Tex. v. Cleburne Living

Ctr., 473 U.S. 432, 440 (1985) (citations omitted). “But we would not be faithful to our

obligations under the Fourteenth Amendment if we applied so deferential a standard to every

classification. . . . Thus we have treated as presumptively invidious those classifications that

disadvantage a suspect class, or that impinge upon the exercise of a fundamental right.” Plyler,

457 U.S. at 216-17 (quotation marks omitted).

As explained earlier, case law establishes a fundamental right to marry the person of

one’s choice. Mississippi’s decision to exclude same-sex couples from exercising that choice

violates that fundamental right.

The Court will nevertheless consider whether Mississippi’s same-sex marriage ban

operates to disadvantage a suspect or quasi-suspect class, which if true “may call for a

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correspondingly more searching judicial inquiry.” United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Governmental discrimination “against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.” Baskin, 766 F.3d at 654 (citations omitted).
Under the customary framework, laws with racial classifications are subject to strict scrutiny, laws with sex-based classifications are subject to heightened or intermediate scrutiny, and laws making other classifications are subject to rational basis review.12 E.g., Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2417 (2013) (“Any racial classification must meet strict scrutiny.”); Miller v. Albright, 523 U.S. 420, 434 n.11 (1998) (“heightened scrutiny . . . normally governs gender discrimination claims”); Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (applying rational basis review to state taxation scheme).
The circuit courts of appeal are divided on which level of review to apply to sexual orientation classifications. In the Second Circuit, “homosexuals compose a [quasi-suspect] class that is subject to heightened scrutiny.” Windsor, 699 F.3d at 185. In this circuit, sexual orientation classifications are subject to rational basis review. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).
It is here that we encounter two analytical difficulties. First, as the plaintiffs observe, Mississippi’s same-sex marriage ban facially classifies on the basis of sex, not sexual orientation. See Docket No. 1, at 14. This creates some confusion about which level of review to apply. Second, despite having to evaluate sexual orientation classifications under rational basis review,
12 Other classifications also are subject to strict or intermediate scrutiny. They are not relevant to this decision.
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history suggests that gay and lesbian Mississippians are a discrete minority group that lacks

political power and has long been subjected to discrimination, warranting heightened scrutiny.

Each of these issues will be taken up below.

a.

Sex-Based Classification

Nothing in the text of Mississippi’s laws banning same-sex marriage speaks to sexual

orientation. A circuit clerk need not inquire into sexual orientation to issue or withhold a marriage license. Mississippi’s same-sex marriage ban is plainly a sex-based classification.13

When the legislature wrote the laws in 1997 and 2004, it could have framed the issue in

terms of sexual orientation. It would not have been difficult to find the right words; just a few

years earlier, Colorado had passed a constitutional amendment repealing all governmental

protection for persons of “homosexual, lesbian or bisexual orientation.” Romer, 517 U.S. at 624

(quoting Colo. Const. art. II, § 30b). The absence of sexual orientation-related language in

Mississippi’s ban confirms that it is a sex-based classification.

And yet, common sense tells us that the application of Mississippi’s same-sex marriage

ban discriminates on the basis of sexual orientation. The title of the bill which amended the

Mississippi Code to outlaw same-sex marriage said it was “An Act . . . to Prohibit Homosexual

Marriages and to Provide that Homosexual Marriages Recognized in Another State Shall not Be

Recognized in this State and Shall Be Declared Void in this State.” S.B. 2053, 112th Leg., Reg.

Sess. (Miss. 1997). Contemporaneous reporting confirms that Mississippi’s constitutional

amendment banning same-sex marriage was passed in response to an expansion of same-sex

rights in Massachusetts, not women’s rights. See Gordon, supra (quoting Rep. Barnett); see also

Forest Thigpen, Approving Amendment Doesn’t Restrict Rights of Same-Sex Partners, The

13 Judge Berzon has persuasively explained why the same is true of Idaho and Nevada’s same-sex marriage bans. Latta, 2014 WL 4977682, at *14 (Berzon, J., concurring). She thought intermediate scrutiny appropriate. Id. at *23.
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Clarion-Ledger, Oct. 24, 2004 (“in Massachusetts, . . . a bare majority . . . of that state’s supreme judicial court declared same-sex marriage to be a fundamental right”).
Legal analysis is supposed to focus on the plain language of the authoritative text. To take a statute as an example, if its plain language “is unambiguous and does not lead to an absurd result, our inquiry begins and ends with the plain meaning of that language.” Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 421 (5th Cir. 2013). Judges “should not be required to divine arcane nuances or to discover hidden meanings” buried within a text. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). Context is certainly relevant to that inquiry; courts are to focus on plain language “in context with its design, object and policy.” Sealed Appellee 1, 767 F.3d at 421; see Scalia & Garner at 56 (“words are given meaning by their context, and context includes the purpose of the text”). But there is reason to believe that the context is to be gleaned from within the authoritative text itself – adjacent paragraphs and the like – “not from extrinsic sources such as legislative history or an assumption about the legal drafter’s desires.” Scalia & Garner at 56.
On one hand, since the plain language of Mississippi’s same-sex marriage ban is a sex classification, and there is not enough contextual information within the text to identify sexual orientation as the issue, then this court should apply intermediate scrutiny. That means the ban survives only if the State can meet a “demanding” burden to show that “the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia, 518 U.S. at 533 (quotation marks, citations, and brackets omitted).
On the other hand, if the court is permitted to use common sense and examine the true purpose, history, and effect of Mississippi’s same-sex marriage ban, it is obvious that the ban
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discriminates on the basis of sexual orientation. In such case rational basis review must be

applied, with the customary inferences in the State’s favor.

Justice Kennedy called this “a difficult question that I’ve been trying to wrestle with.”

Transcript of Oral Argument, Hollingsworth v. Perry, No. 12-144, 2013 WL 1212745 at *13

(U.S. Mar. 26, 2013) [hereinafter Hollingsworth Transcript]. Like other district courts presented

with this dilemma, the undersigned need not resolve the conflict at this time. See Wolf v. Walker,

986 F. Supp. 2d 982, 1009 (W.D. Wis. 2014). It is noted for further review.

b.

Suspect or Quasi-Suspect Class

This brings us to the second problem. Race, sex, and a handful of other classifications are

subject to either strict or intermediate scrutiny. In this circuit, sexual orientation is not. That

conclusion is binding on this Court. The question is whether it remains a fair conclusion given

what we now know about gay and lesbian citizens.

Courts consider a number of factors when deciding whether a group is a suspect or quasi-

suspect class. One of the most important is whether the group has “suffered discrimination in our

society.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 218 (1995); see Frontiero v.

Richardson, 411 U.S. 677, 684 (1973) (“our Nation has had a long and unfortunate history of sex

discrimination”). Another is whether the characteristic at issue has any bearing on one’s “ability

to perform or contribute to society.” Cleburne, 473 U.S. at 441 (citation omitted). A third is

whether the classification “threaten[s] to stigmatize individuals by reason of their membership,”

Johnson v. California, 543 U.S. 499, 507 (2005), or perpetuates stereotypes of “legal, social, and

economic inferiority,” Virginia, 518 U.S. at 534. Additional considerations include whether the

group “exhibit[s] obvious, immutable, or distinguishing characteristics,” or is “a minority or

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politically powerless.” Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citation omitted). These factors are not exhaustive.14 See Windsor, 699 F.3d at 181.

The State did not address these factors in its response brief. At oral argument, in fact, it

conceded that some of them were “inarguable,” without stating which factors were not satisfied.

The Court has conducted an independent review of the factors without the benefit of the

government’s input. i.

History of Discrimination15

A “strong objection to homosexual conduct . . . has prevailed in Western culture for the

past seven centuries.” Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); accord

Lawrence, 539 U.S. at 571. This objection took many forms.

It was common for state laws to call for “sterilization or castration of moral degenerates

and sexual perverts, usually for homosexual behavior.” Dale Carpenter, Windsor Products:

Equal Protection from Animus, 2013 Sup. Ct. Rev. 183, 253 (2013). “In an effort to ‘treat’

homosexuals, hospitals performed prefrontal lobotomies, injected massive doses of male

hormones, and administered electric shock and other aversion therapy.” Id. at 253-54 (citation

omitted).

In 1952, Congress labeled homosexuals psychopathic personalities and passed a law

“prohibit[ing] gay men and women from entering the country.” De Leon v. Perry, 975 F. Supp.

2d 632, 651 (W.D. Tex. 2014) (citations omitted). “In 1953, President Eisenhower issued an

executive order requiring the discharge of homosexual employees, among others, from all federal

14 Cleburne indicates that courts should “look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us.” 473 U.S. at 446. Application of this factor would not change the court’s ruling, since governmental actions based on sexual orientation are unlikely to be valid in the vast majority of instances. 15 What follows is not “a definitive historical judgment.” Lawrence, 539 U.S. at 568. The history of discrimination against homosexuals in Mississippi may be an appropriate issue to resolve at trial.
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employment, and this policy remained in place until 1975.” Id. (citations omitted). Senator Joseph McCarthy’s crusade against Communists involved keeping an eye out for “flagrant homosexuals,” which contributed to “more State Department employees . . . fired for homosexuality than for alleged Communist sympathies in 1951 and 1952, the height of McCarthy-era red-hunting.” Carpenter, 2013 Sup. Ct. Rev. at 254. Gay and lesbian citizens could not openly serve in the military until September 2011. Matthew L. Wald, Woman Becomes First Openly Gay General, N.Y. Times, Aug. 12, 2012.
“Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal.” Windsor, 699 F.3d at 182. (In that case, the group of United States Congressmen which opposed Edith Windsor’s claim conceded that “homosexuals have endured discrimination in this country since at least the 1920s.” Id.) “Between 1946 and 1961, as many as one million gays and lesbians were arrested and punished for crimes related to their sexuality.” Cary Franklin, Marrying Liberty and Equality: The New Jurisprudence of Gay Rights, 100 Va. L. Rev. 817, 837 (2014) (citing William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 60 (1999)).
Earlier federal courts have not hesitated to say that “a homosexual act is immoral, indecent, lewd, and obscene.” Schlegel v. United States, 416 F.2d 1372, 1378 (Ct. Cl. 1969). Much has changed. Today, even courts upholding same-sex marriage bans have had to acknowledge “the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials.” DeBoer, 2014 WL 5748990, at *18. “Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on bars, clubs, and private homes; portrayed by the press as perverts and child molesters;
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and victimized in horrific hate crimes.” Whitewood v. Wolf, 992 F. Supp. 2d 410, 427 (M.D. Pa. 2014).
When its same-sex marriage ban was challenged, the State of Pennsylvania conceded that there was a history of discrimination against gay and lesbians in America, but disputed the record of anti-gay discrimination in Pennsylvania. Id. at 427-28. The State of Mississippi has wisely made no such claim. To avoid all doubt, though, the court will discuss Mississippi’s unique experience.
Historian John Howard, a native of Rankin County, contends that Mississippi was quietly accommodating of gay and lesbian persons during the 1940s and 1950s. John Howard, Men Like That xvii (1999). When John Murrett, a gay man, was murdered in a Jackson hotel in July 1955, the police and the prosecution pursued the case vigorously. Id. at 129-42. The jury rejected the defendants’ “gay panic” defense, disregarded the defense lawyers’ repeated insinuations that Murrett was “a sex pervert,” and convicted the defendants. Id. The conviction is remarkable considering that in that same year, a jury acquitted the men who tortured and murdered Emmitt Till.16 Id. at 141. Apparently, being gay was more acceptable than being black.
Any claim that Mississippians quietly accommodated gay and lesbian citizens could no longer be made in the 1960s, when prejudice against homosexuals (and other groups) became more visible during the civil rights movement. Segregationists called their opponents “racial perverts,” while U.S. Marshals – summoned to enforce civil rights – were labeled “sadists and perverts.” Id. at xv, 147. Klan propaganda tied together “Communists, homosexuals, and Jews, fornicators and liberals and angry blacks – infidels all.”17 Id. at 149. One Klan photo showed a black man touching the crotch of the white man sitting next to him, attempting to make the link
16 The composition of both juries were all male and all white. Howard at 142. 17 In 1981, a Klan leader speaking at a rally in downtown Jackson advocated caging homosexuals. Howard at 238.
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between racial equality and homosexuality explicit. Id. at 147. Howard concludes that by 1965, “homosexuality was linked to the specter of racial justice – what white authorities understood as the most serious threat to the status quo.” Id. at xvii, 170.
Civil rights leaders had predicted the attack. In selecting the Freedom Riders, James Farmer had conducted interviews to weed out “Communists, homosexuals, [and] drug addicts.” Gary Younge, No Place Like Home: A Black Briton’s Journey Through the American South 271 (2002). “We had to screen them very carefully because we knew that if they found anything to throw at us, they would throw it,” he explained. Id. This reflected society’s notion that homosexuals were “undesirables.” Taylor Branch, Parting the Waters: America in the King Years 1954-63 862 (1988). It also placed civil rights leaders in the position of seeking rights for one disenfranchised group while simultaneously seeking to avoid association with another disenfranchised group.
Mississippians opposed to integration harassed several civil rights leaders for their homosexuality. Bill Higgs was a prominent gay Mississippi civil rights lawyer. He was targeted for his activism, convicted in absentia of delinquency of a minor, and threatened with “unlimited jailings” should he ever return to Mississippi. Howard at 150-57. He never did. Id.
Another person targeted for his homosexuality was longtime civil rights organizer Bayard Rustin. Rustin, an African American, had been active in the Communist movement, was a conscious objector to World War II, and helped guide the Montgomery bus boycott – all of which made him suspect. Diane McWhorter, Carry Me Home 105 (2001). When he drew attention in Mississippi, the Clarion-Ledger called him a “sex criminal” owing to a 1953 conviction for being caught in a gay sex encounter in California. Id.; Howard at 147.
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The most interesting part of Rustin’s story, though – and the reason why he merits more discussion here – is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike.
Congressman Adam Clayton Powell, a black Democrat, threatened to feed the media a false story that Rustin was having an affair with Martin Luther King, Jr., unless Dr. King canceled a protest at the Democratic National Convention. See Branch at 314. “The mere assertion would be extremely damaging.”18 Id. at 315. Other persons within the civil rights movement were similarly “put off by Rustin’s homosexuality.” Id. at 329. Roy Wilkins, an NAACP executive, “was particularly nasty to Bayard Rustin – very hostile,” in part because he “was very nervous about Bayard’s homosexuality.” John Lewis, Walking With the Wind: A Memoir of the Movement 207-08 (1998). Dr. King eventually had Rustin resign “because of persistent criticism of Rustin’s homosexuality and Communist ties and because of Congressman Adam Clayton Powell’s threat.” Mary Frances Berry, And Justice for All: The United States Commission on Civil Rights and the Continuing Struggle for Freedom in America 47 (2009).
Rustin reemerged years later as one of the principal organizers of the March on Washington for Jobs and Freedom. A. Philip Randolph and Dr. King wanted Rustin as the march’s chief organizer, but Wilkins pushed back “because [Rustin] was gay . . . something which in particular would offend J. Edgar Hoover.” David Halberstam, The Children 450 (1998). The group ultimately “decided Randolph would be in charge of the march, that Rustin would be the principal organizer, but that he would stay somewhat in the background.” Id.
The concern about offending Hoover was prescient, as the FBI Director and other top officials soon moved to use Rustin’s homosexuality against him. In August 1963, FBI Director J.
18 “King, however, held steady, and vowed that the picketing would go on as planned, which it did.” Wil Haygood, King of the Cats: The Life and Times of Adam Clayton Powell, Jr. 265 (1993).
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Edgar Hoover, Attorney General Robert F. Kennedy, and President John F. Kennedy urgently
reviewed the transcript of a FBI wiretap in which Dr. King acknowledged Rustin’s
homosexuality. Branch at 861. A day later, Senator Strom Thurmond of South Carolina “rose in
the Senate to denounce Rustin for sexual perversion, vagrancy, and lewdness.” Id. FBI
“headquarters badgered the field offices for new details” of Rustin’s sex life for months. Id. at
862.
Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to
discriminate against homosexuals. It did not matter if one was liberal or conservative,
segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.” Being homosexual invited scrutiny and professional consequences.19
These consequences befell quite a few Mississippians. Ted Russell, the conductor of the
Jackson Symphony Orchestra, lost his job and his Belhaven College faculty position after he was caught in a gay sex sting by the Jackson Police Department. Howard at 168.20 In the early 1980s,
Congressman Jon Hinson drew scrutiny for frequenting an X-rated gay movie theater in
Washington, D.C., and although he won reelection, he resigned when he returned to Washington and was caught performing gay sex acts in a Capitol Hill bathroom.21 Jere Nash & Andy Taggart,
Mississippi Politics: The Struggle for Power, 1967-2006 122-26 (2006); Howard at 263-74. As
19 “Formal disapproval of overt homosexuality was arguably more rigorous among middle-class blacks than among comparable whites. . . . Incensed by white stereotypes denigrating black morals and partial to biblical condemnations of unconventional behavior, well-bred blacks were given to extreme execrations of what they perceived as deviant sexual practices.” David Levering Lewis, W.E.B. Du Bois: The Fight for Equality and the American Century, 1919-1963, 224 (2000). 20 Sting operations were a common technique used by police departments across the country to ensnare homosexuals. See Jordan Blair Woods, Don’t Tap, Don’t Snare, and Keep Your Hand to Yourself! Critiquing the Legality of Gay Sting Operations, 12 J. Gender Race & Just. 545, 548-53 (2009). Such operations are not relegated to the distant past. See Alana Chazan, A Boy of Boise: In Defense of Idaho’s Most Famous Toe-Tapper, 11 N.Y. City L. Rev. 441 (2008). 21 Hinson was not the only Mississippi politician to be associated with homosexual activity. When Attorney General Bill Allain was running for Governor, a mere two weeks before the election, supporters of his opponent accused Allain of consorting with black transgender prostitutes. Apparently the voters did not believe that Allain would do such a thing and must have viewed this as an act of desperation since Allain was far ahead in the polls. Allain won the election. See Nash & Taggart (Mississippi Politics) at 154; Howard at 295.
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early as 1950, the State’s flagship institution of higher learning, the University of Mississippi, “forced three homosexual students and one faculty member to leave the university” because it “did not tolerate homosexuality.”22 Charles W. Eagles, The Price of Defiance: James Meredith and the Integration of Ole Miss 62-63 (2009). Lesbian instructors at Mississippi University for Women were pushed out of their jobs, while students at other Mississippi public universities were expelled for their homosexuality. Howard at 68-69, 72. A 1979 article on gay Jacksonians said “most” remained closeted because “they fear losing their jobs, friends and families.” Carol Taff, Jackson’s Insular, Secret Society, The Clarion-Ledger, Sept. 9, 1979, at 1G.
The Mississippi State Sovereignty Commission was engaged in the anti-gay effort.23 Longtime gay rights leader Eddie Sandifer was both “a target of Sovereignty Commission surveillance in the 1960s and 1970s” and one of its paid informants. Howard at 256. (Because the payments were so small, Professor Howard speculates that Sandifer cooperated because Sovereignty Commission investigators could have charged him with sodomy. Id.) Sovereignty Commission “[i]nvestigators and local officials also targeted local blacks and outsiders involved in civil rights activities as being sexually deviant.” Jenny Irons, Reconstituting Whiteness: The Mississippi State Sovereignty Commission 174 (2010). They singled out Rust College, a private historically black institution, on reports that instructors there were “homosexuals and racial agitators.” Id. at 175.24,25
22 This may cut against Howard’s “quiet accommodation of the 1950s” theory. 23 For the uninitiated, the Sovereignty Commission was a State agency created in 1956. “The true purpose of the Sovereignty Commission was to maintain racial segregation in the State of Mississippi . . . by any means necessary despite contrary rulings of the United States Supreme Court.” ACLU of Mississippi v. Fordice, 56 F. Supp. 2d 712, 713 (S.D. Miss. 1999). It has been described as “an abominable and unsavory segregationist enterprise staged by leading Mississippi white officials” who “used the constitutional mantle of ‘state sovereignty’ to try to perpetuate white Mississippi’s inhumane treatment of the state’s black citizens.” Yasuhiro Katagiri, The Mississippi State Sovereignty Commission: Civil Rights and States’ Rights xiv (2001). 24 Bill Higgs, the gay civil rights attorney mentioned earlier, was a plaintiff in a lawsuit seeking to defund the Sovereignty Commission. Katagiri at 72-73. He “would have to pay dearly for his involvement in the case” – it led to the “phony moral charge” and eventual exile. Id. at 73.
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Those with power took smaller, yet meaningful, actions to discourage gay organizing and association in Mississippi. The State refused to let gay rights organizations incorporate as nonprofits. Howard at 232, 239. The newspaper at Mississippi State University – student-led, with an elected editor – refused to print a gay organization’s advertisement notifying gay and lesbian students of an off-campus “Gay Center” offering “counseling, legal aid and a library of homosexual literature. Miss. Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1976).26 An advisor to the U.S. Commission on Civil Rights concluded that the Jackson Police Department took “a series . . . of maneuvers to harass members of Jackson’s gay community.” Howard at 237. “As of 1985 not a single university campus in Mississippi recognized a lesbian and gay student group.” Id. at 68.
At times, gay and lesbian Mississippians were successful in protecting their rights in state courts. When a group of lesbians started Camp Sister Spirit, “a feminist education and cultural retreat center in rural Jones County,” their homosexuality led to fierce opposition from local “religious conservatives and family values groups.” Founder of Camp Sister Spirit Dies, Hattiesburg American, Feb. 13, 2008. An opposition group sued, claiming that the camp was a public nuisance. College Students Spend Spring Break at Camp Sister Spirit, Assoc. Press, Mar. 24, 1995. (The objections were not personal, said a leader of the opposition group: “We wouldn’t want a house of prostitution, or a neo-Nazi training camp, or a porno shop, or a KKK meeting hall in our neighborhood, either.” Michael Browning, Uncivil War Pits Lesbians Against
25 The FBI also infiltrated gay rights groups in the 1950s and 1960s. Carpenter, 2013 Sup. Ct. Rev. at 255-56. 26 In denying the organization’s appeal, Judge Coleman described the Mississippi Gay Alliance as “this off-campus cell of homosexuals.” Goudelock, 536 F.2d at 1075.
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Mississippi Townsfolk, The Miami Herald, Mar. 6, 1994, at A1.) The group lost their suit; the camp remained. See Hattiesburg American, supra.27
Other successes touch on the issues in today’s case. In 2001, a lesbian couple that had adopted a (Mississippi-born) child in Vermont struggled to get the State of Mississippi to issue a birth certificate listing both female parents. Complaint at 1-2, Perdue v. Miss. State Bd. of Health, No. G-2001-1891-S/2 (Miss. Ch. Ct. Oct. 25, 2001) . Although at the time Mississippi law did not prohibit same-sex adoptions, that did not prevent the State from claiming that adoption was reserved for heterosexual parents. Def.s’ Mot. for Summ. J. at 3 (Feb. 14, 2003). The judge found that Mississippi law recognized lawful adoptions completed in other states. Opinion of the Court at 3 (Miss. Ch. Ct. Mar. 18, 2003). He ordered the State to issue a revised birth certificate listing each woman as “Parent” within 10 days. Id. The State complied.
That said, some court losses left open the possibility that gay and lesbian citizens were treated less favorably than others due to their sexuality. In 1990, the Mississippi Supreme Court affirmed a trial judge who declared that a mother, who was a lesbian, could not visit her children in the presence of her female partner. White v. Thompson, 569 So. 2d 1181, 1185 (Miss. 1990). In Weigand v. Houghton, the Mississippi Supreme Court affirmed a trial judge who refused residential custody to a father in large part because he was in a long-term relationship with another man. 730 So. 2d 581, 586 (Miss. 1999). A dissent complained that the father’s sexuality had impaired the court’s judgment, since the child would now have to live with “the unemployed stepfather [who] is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and childthreatener, and . . . the mother [who] has been transitory, works two jobs, and has limited time with the child.” Id. at 588 (McRae, J., dissenting).
27 Brenda Hudson, the primary founder, died in 2008. According to her obituary, her proudest moment was not starting Camp Sister Spirit, but rather “[c]onsecrating in holy matrimony her 20-year committed relationship with her wife in the Great State of Massachusetts on May 24, 2004.” Henson, Miss. Press, Feb. 14, 2008.
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In 2002, one of Mississippi’s justice court judges, frustrated with advances in gay rights
in California, Vermont, and Hawaii, “opined that homosexuals belong in mental institutions.”
Miss. Comm’n on Judicial Performance v. Wilkerson, 876 So. 2d 1006, 1008 (Miss. 2004).
Although he was reprimanded and fined by the Mississippi Commission on Judicial
Performance, the Mississippi Supreme Court vacated the sanctions. It was more important for
gay citizens to know that their judge was biased and seek his recusal than to “forc[e] judges to
conceal their prejudice against gays and lesbians,” it wrote. Id. at 1015. The “Commission urges
us to ‘calm the waters’ when, as the guardians of this state’s judicial system, we should be helping our citizens to spot the crocodiles.” Id. at 1016.28
As the court discussed earlier, gay and lesbian Mississippians also found little refuge in
the State legislature. See supra Part I.B (explaining what led to the passage of the laws currently
at issue). The bills defining marriage and placing the constitutional amendment on the ballot passed with overwhelming support from politicians in both parties.29 See Gordon, supra (“The
[2004] bill easily passed through the Legislature”); Nash & Taggart (Mississippi Politics) at 392
(noting that the 2004 gay marriage legislation was approved in the House by a vote of 97-17 and
in the Senate by a vote of 51-0); see also Dennis J. Mitchell, A New History of Mississippi 528
(2014). These laws are still on the books, of course, but they are not the only ones which
establish different rights for gay and lesbian citizens.
28 This would not be remarkable if the Mississippi Supreme Court had also vacated sanctions against Judges who displayed bias against other groups. But case law suggests that homosexuals were treated differently than white people, black people, and women. See Miss. Comm’n on Judicial Performance v. Boland, 975 So. 2d 882, 898 (Miss. 2008) (sanctioning a white justice court judge who made racially disparaging remarks about African Americans); Miss. Comm’n on Judicial Performance v. Osborne, 11 So. 3d 107, 114 (Miss. 2009) (suspending an African American county court Judge for making disparaging remarks about Caucasians, despite the Judge’s resignation); Miss. Comm’n on Judicial Performance v. Brown, 37 So. 3d 14, 20, 24 (Miss. 2010) (sanctioning Judge for making racially derogatory remarks and touching employee in an inappropriate manner); Miss. Comm’n on Judicial Performance v. Spencer, 725 So. 2d 171 (Miss. 1998) (removing Judge in part for making sexually harassing comments). 29 DOMA also passed with broad support. The vote in the House was 342-67 and the vote in the Senate was 85-14. Carpenter, 2013 Sup. Ct. Rev. at 194.
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Mississippi law, for example, permits a single person to adopt a child, but prohibits gay or lesbian couples from adopting. Miss. Code Ann. § 93-17-3(5).30 This kind of restriction was once supported by pseudoscience. See infra Part III.B.2.b.iii. We now recognize that it actually “harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.” Baskin, 766 F.3d at 671. Judge Posner thought it to be the “most arbitrary feature of Wisconsin’s treatment of same-sex couples.” Id.
Mississippi law also requires school districts to teach its pre-Lawrence sodomy law (along with all other State laws regarding homosexuality) to schoolchildren, including children of gay couples. Miss. Code Ann. § 37-13-171(e); see Jonathan Cohn, Mississippi’s Sex-Ed Classes Teach Kids That Homosexuality Is Illegal, Even Though It Isn’t, The New Republic, Apr. 7, 2014.
Discrimination against gay and lesbian Mississippians is not ancient history. The last five years reveals a number of complaints and lawsuits alleging discriminatory treatment at the hands of State and local governments. See McMillen v. Itawamba Cnty. Sch. Dist., 702 F. Supp. 2d 699 (N.D. Miss. 2010) (finding First Amendment violation where female high school student’s request to bring her girlfriend to prom, and wear a tuxedo at the event, was denied by the assistant principal); Sturgis v. Copiah Cnty. Sch. Dist., No. 3:10-CV-455, 2011 WL 4351355, at *1 (S.D. Miss. Sept. 15, 2011) (denying school district’s motion to dismiss where plaintiff, “who identifies as a female but prefers conventionally masculine clothing,” challenged high school’s removal of her senior portrait because she wore a tuxedo); Holbrook Mohr, Lesbian Demands Ceremony at Mississippi Museum, Assoc. Press, July 12, 2012 (“A Mississippi lesbian . . . is
30 This prohibition states, in its entirety, “[a]doption by couples of the same gender is prohibited.” Miss. Code Ann. § 93-17-3(5). This too is a classification based on sex, not sexual orientation.
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now calling for a state museum to allow a commitment ceremony for her and her partner. . . . The state-owned museum in Jackson refused to permit a similar ceremony for two men earlier this year.”); Holbrook Mohr, Lesbian Sues Miss. Town for Denying Gay Bar Permit, Assoc. Press, Oct. 1, 2013.
Same-sex marriage and partner health benefits have been two of the most prominent skirmishes. In 2012, the Attorney General’s office issued an opinion finding “little question but that same-sex marriages are contrary to the public policy as set forth in Mississippi’s statutes and constitution.” Department Grounds and Use of Property, Miss. Att’y Gen. Op. No. 2012-411, 2012 WL 6128480, at *4 (Oct. 12, 2012) (citations omitted). The next year, that office opined that State employees could not enroll a same-sex spouse in the State’s life and health insurance plans. Insurance Eligibility of Same Sex Spouse and Child of a Same Sex Marriage Under the State and School Employees’ Life and Health Insurance Plan, Miss. Att’y Gen. Op. No. 2013504, 2013 WL 7020577 (Dec. 20, 2013).
Just a few months ago, the city of Starkville granted health insurance benefits to samesex partners. The city’s religious base opposed the change. Carl Smith, Starkville Revokes SameSex Insurance, The Dispatch, Sept. 17, 2014. Lee Brand, Jr., a pastor and the President of the Starkville School District Board of Trustees, spoke against the measure, declaring that he is in favor of insuring single parents, children, and family, but family is “comprised of one man and one woman in a marriage covenant as given in Genesis 2:18-25.” Mary Kate McGowan, One Plus One: Starkville’s Fight for LGBT Equality, Change, Starkville Free Press, Oct. 12, 2014. Brand then read a list of other religious leaders who agreed with him. Id. Because of the backlash, the city reversed course. It now claims to “follow the Mississippi constitution.” Kate
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Royals, Starkville Revokes Insurance Option for Same-Sex Partners, The Clarion-Ledger, Sept. 17, 2014.
“The past is never dead. It’s not even past.” William Faulkner, Requiem for a Nun 92 (Random House, 1951). That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, “other” people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination. Accord Windsor, 699 F.3d at 182.
ii. Bearing on Ability to Contribute to Society “There are some distinguishing characteristics . . . that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But homosexuality is not one of them.” Id. In striking down Wisconsin’s same-sex marriage ban, the U.S. District Court for the Western District of Wisconsin wrote that it was “not aware of any cases in which a court concluded that being gay hinders an individual’s ability to contribute to society.” Wolf, 986 F. Supp. 2d at 1012. This factor is satisfied.
iii. Stigmatization and Perpetuation of Inferiority Stigma is defined as “a mark of shame or discredit” or “a mark or label indicating a deviation from the norm.” Webster’s Third New International Dictionary Unabridged 2243 (1993). There is little question that gay and lesbian citizens have been stigmatized by reason of their sexual orientation. They were, and to a certain extent are, labeled as deviant and forced to repress their sexuality to avoid personal and professional retribution. Bayard Rustin’s homosexuality was a “stigma[] that would burden him throughout his career,” Congressman
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Lewis wrote. Lewis at 90. The Mississippians who lost their jobs (Russell), ability to return home (Higgs), or full custody rights (Weigand) knew firsthand the consequences of being gay.
The stigmatization of sexual orientation was aided by the dissemination of false stereotypes about gay and lesbian citizens. This took various forms.
One powerful message was the idea that homosexuals were criminals because sodomy was criminalized. “Certainly if a person is committing felonies, it reflects poorly on their potential as a lawyer,” said one University of Mississippi law student who opposed his law school’s anti-discrimination policy. Jerry Mitchell, Ole Miss Law Professors Vote to Keep Policy Protecting Homosexual Rights, The Clarion-Ledger, Mar. 6, 1987, at A1; see also Editorial, Privacy Limited, The Clarion-Ledger, July 2, 1986 (“Even behind locked doors, child beating, sale of narcotics and countless other activities are as illegal as they would be on the street.”). Continuing the theme, one Jackson religious leader argued that “a church for those who engage in homosexual acts is the equivalent of a church for practicing adulterers, prostitutes, murderers, drunkards or thieves.” Rev. Michael Schneider, Is it Possible to be Homosexual and Still be a Christian? “No”, The Clarion-Ledger, June 5, 1983.31
A related charge insinuated that gay sex was related to incest or other sex crimes. The head of the Mississippi Center for Public Policy argued that “[i]f we adopted the logic of samesex marriage proponents . . . there could be no limits on incest or polygamy.” Thigpen, supra. Reverend Blair Bradley, pastor of Covenant of Peace in Gulfport, said that post-Lawrence, there is now no legal restriction on any activity that would be done in private, “including bestiality,
31 Perhaps because of this deep-rooted association, the decriminalization of consensual gay sex was not well received here. One State Senator “compared the court striking down sodomy laws to the ‘loss of a good friend.’” Wilson Boyd, U.S. High Court Strikes Law Banning Gay Sex, The Clarion-Ledger, June 27, 2003. A Gulfport City Councilman said Lawrence was “the worst thing to happen to this country since they took prayer out of schools.” Assoc. Press, City Council Votes Against Sodomy Law, The Clarion-Ledger, July 24, 2003.
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drug use, child molestation and any other aberrant activity.” High Court Throws Out Sodomy Ban, Sun Herald, June 27, 2003, at D-1.
Another oft-repeated allegation was that homosexuals were “deviant.” In 1996, Governor Fordice called homosexual relationships “perverse.” Gina Holland, Mississippi Bans Homosexual Marriage, Assoc. Press, Feb. 13, 1997. Said one Clarion-Ledger columnist, “Homosexuality is a deviant lifestyle. . . . Homosexuality isn’t normal. It is, rather, abnormal to assume that same-sex fornicators who seem proud of the designation are fit for parenthood.” Matt Friedeman, Cells Jam Capitol Phones, Back Bill to Ban Gay Adoption, The Clarion-Ledger, Mar. 17, 2000.
A final stereotype was that gay and lesbian citizens were unfit parents who would harm children. The Executive Director of the American Family Association, a family values group in Tupelo, argued that children raised in same-sex households have “problems in relationships with members of the opposite sex,” are 29 times more likely to be the victim of incest, suffer a variety of psychological problems, and are at “greater risk of becoming homosexual” themselves. Mike Crook, Should Gay Adoption Be Banned? “Yes”, The Clarion-Ledger, Mar. 26, 2000.
Proponents of the above notions have had the opportunity to prove these theories in court, but failed. Two of the trials in which these proponents’ theories were debunked are summarized here.
The champions of California’s same-sex marriage ban promised to show 23 “specific harmful consequences” that families, children, and society would suffer if same-sex marriage was allowed to recommence in that state. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 931 (N.D. Cal. 2010). At trial, however, they “provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.” Id. The expert testimony that was
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presented showed that “gays and lesbians are no more likely than heterosexuals to pose a threat to children”; “children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents”; “same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability”; and adoptive parents “actually on some outcomes outstrip biological parents in terms of providing protective care for their children.” Id. at 935.32 The court concluded that “children of same-sex couples benefit when their parents can marry.” Id. at 973.
The State of Michigan also had an opportunity to prove, at trial, the harms that would develop from same-sex marriage. See DeBoer v. Snyder, 973 F. Supp. 2d 757, 761-68 (E.D. Mich. 2014). Its main expert witness presented testimony that was “entirely unbelievable and not worthy of serious consideration.” Id. at 766. The state’s other experts were no better: the court concluded that they all “clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.” Id. at 768. As to the alleged harm to children presented by homosexuals, the court noted that the American Medical Association, American Academy of Pediatrics, American Psychological Association, and other professional organizations concerned for the welfare of children have expressed “support for parenting, adoption, and/or fostering by lesbian and gay couples” Id. at 763.
No trial has been held in this case yet. The evidence and testimony may ultimately point in another direction. The lesson from these two trials, though, is that the most common claims made against gay and lesbian citizens have not held up. The claims appear to be untrue stereotypes intended to disparage and demean an unpopular group.
32 The proponents of California’s same-sex marriage ban withdrew two of their expert witnesses upon discovering that their testimony actually supported same-sex marriage. Perry, 704 F. Supp. 2d at 944-45.
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Mississippi law perpetuates the false notion of gay inferiority by denying equal marriage

rights to gay and lesbian citizens, prohibiting gay and lesbian couples from adopting children

together, and requiring schools to teach the idea that gay sex is criminal. See Virginia, 518 U.S.

at 534. Even as public opinion changes in America, Mississippi law sends a plain message that

gay and lesbian citizens are less deserving than other citizens.

For these reasons, this factor is met.

iv.

Obvious, Immutable, or Distinguishing Characteristics

Unlike race, which is identifiable at birth and obvious throughout one’s lifetime, sexual

orientation has no visible manifestation. A gay or lesbian person can move throughout daily life

without revealing his or her sexual orientation. It is not obvious.

Sexual orientation is, however, immutable. In reviewing the evidence, Judge Posner

found “little doubt that sexual orientation . . . is an immutable (and probably an innate, in the

sense of in-born) characteristic rather than a choice. . . . The American Psychological

Association has said that most people experience little or no sense of choice about their sexual

orientation.” Baskin, 766 F.3d at 657 (quotation marks and citations omitted).

The State does not argue otherwise. This factor is satisfied.

v.

Minority or Politically Powerless33

Gay, lesbian, bisexual, and transgendered Mississippians are a distinct minority group. A

2013 Gallop poll suggested that they constitute approximately 2.6% of the State’s population.

Dustin Barnes, For Better or Worse?, The Clarion-Ledger, June 16, 2013, at 1A.

A common argument against homosexual equality is that the gay and lesbian community

is so popular that it needs no judicial protection from the will of the majority. In this vein, the

33 This element likely carries little weight. Women are far from politically powerless – they constitute 50% of the voting population – but gender classifications are afforded intermediate scrutiny.
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U.S. District Court for Nevada, which upheld that state’s same-sex marriage ban until the Ninth Circuit reversed, found that “the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals.” Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1008 (D. Nev. 2012). He noted that the President now supports same-sex marriage.34 Id.
But pointing to statements of popular support, those of individual politicians, or even the national ‘climate’ is not the standard. The standard is whether homosexuals in Mississippi have “the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Much of that discrimination, of course, happens, at the state and local levels, far from celebrities and national politicians.
On this question, it can only be concluded that Mississippi’s gay and lesbian community does not have the requisite political strength to protect itself from wrongful discrimination. In 2004, it lost the same-sex marriage ban by a considerable margin. That year, “every member of Mississippi’s congressional delegation,” Democrats and Republicans, supported the Defense of Marriage Act. Ana Radelat, Calls Sway Thompson’s Vote to Ban Gay Marriage, The ClarionLedger, Oct. 7, 2004. As recent as this year, gay and lesbian Mississippians were unable to halt a bill in the State legislature that was perceived to condone sexual orientation discrimination. See Reid Wilson, Mississippi Passes Arizona-style Religious Freedom Bill, Wash. Post, Apr. 1, 2014 (“Supporters of the measure say it would protect religious freedoms, while opponents say it could be used to discriminate against gays and lesbians.”); Neal Broverman, Mississippi’s Modern ‘Jim Crow’ Law Now In Effect, Advocate, July 6, 2014.
34 In a sign of just how far national opinion has come, last year the President honored Bayard Rustin with the Presidential Medal of Freedom alongside former President Bill Clinton, Sally Ride, Dean Smith, Arturo Sandoval, and Oprah Winfrey. The White House, President Obama Names Presidential Medal of Freedom Recipients, Aug. 8, 2013.
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The parties have not suggested when the gay and lesbian population’s minority status and political incapacity in this State may end. At present, there is no end in sight. This factor is met.
~ ~ ~ “The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups.” Plyler, 457 U.S. at 216 n.14. The experience of our State shows that gay and lesbian Mississippians are one of those groups to have been treated differently due to prejudice. They constitute a quasi-suspect class. The immediate question is whether strict or intermediate scrutiny should apply. Mississippi’s history of linking race with sexual orientation complicates this question.35 Being gay and being black are tied up in overlapping stories of discrimination. Despite their recent convergence in modern Mississippi history, though, race and sexual orientation are profoundly different.36 Sexual orientation did not arise out of slavery or hundreds of years of discrimination. Unlike one’s race, one can conceal sexual orientation upon demand, if only by refusing to publicly show love or seeking to marry. There is a further complication inherent in the reality that homosexuals have been discriminated against by white and black people acting together. That is not limited to Bayard Rustin. The fact that 17 out of 20 Mississippians approved the same-sex marriage ban in 2004 is suggestive of some agreement among white and black voters. This implies a different source of
35 If the seed of Mississippi’s overt discrimination against gay and lesbian citizens was inspired by race discrimination, then the fruit of the poisonous tree we find ourselves grappling with today is also in part a problem of race. 36 Counsel for plaintiffs made it very clear that they are in no way arguing “that the discrimination suffered by gay people is in any way equivalent to the discrimination suffered by African Americans.” Transcript of Oral Argument at 29, Campaign for Southern Equality v. Bryant, No. 3:14-CV-818 (Nov. 12, 2014). “There has been violence against gay people, clearly,” she noted, “but it doesn’t arise even close to the levels of the violence that existed in the South, sadly, many years ago against [black] people.” Id. The court agrees.
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discriminatory motivation, one stemming not from color prejudice and slavery, but from longstanding religious prohibitions on homosexuality in white and black churches.37

At the end of the day, because gay and lesbian citizens are not bound up in the same

history of slavery and discrimination as African Americans, this court is not inclined to apply

strict scrutiny to sexual orientation classifications. Intermediate scrutiny is most appropriate. If

this court had the authority, it would apply intermediate scrutiny to government sexual

orientation classifications.

Although circuit precedent forecloses this finding, “it is safe to say that there is some

doctrinal instability in this area” which merits renewed consideration by the en banc Fifth Circuit or the Supreme Court.38 Windsor, 699 F.3d at 181.

The undersigned will now consider Mississippi’s same-sex marriage ban under rational

basis review.

c.

Rational Basis Review

Under rational basis review, “legislation is presumed to be valid and will be sustained if

the classification drawn by the statute is rationally related to a legitimate state interest.”

Cleburne, 473 U.S. at 440 (citations omitted). Courts generally should not “closely scrutinize

legislative choices as to whether, how, and to what extent” the State’s interests are pursued; “the

Equal Protection Clause requires only a rational means to serve a legitimate end.” Id.

37 See, e.g., Russell K. Robinson, Marriage Equality and Postracialism, 61 UCLA L. Rev. 1010, 1030 (2014) (arguing against the popular notion that black voters can be directly blamed for the passage of California’s Proposition 8, which halted same-sex marriage in California for several years, because the biggest difference between the white vote and the black vote was not race, but religion); Sabrina Haake, “The M Word”, 4 Hum. Rts. & Globalization L. Rev. 3, 36 (2011) (“African-Americans are virtually the only constituency in America that has not become more supportive of homosexuals” and are “more likely than any other group to believe that homosexuality is wrong”); Randall Kennedy, Marriage and the Struggle for Gay, Lesbian and Black Liberation, 2005 Utah L. Rev. 781, 798-99 (2005) (concluding that African American hostility to gay and lesbian equality flows from a variety of sources including certain conservative Christian values, and quoting one African American minister as saying, “if the KKK was opposing same-sex marriage, [I] would ride with them”). 38 Earlier this month, for example, the Sixth Circuit found that same-sex marriage is “not a setting, most pertinently, in which the local, state, and federal governments historically disenfranchised the suspect class, as they did with African Americans and women.” DeBoer, 2014 WL 5748990, at *20.
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“Despite its deference, however, the rational basis test is not a toothless one.” Greater

Hous. Small Taxicab Co. Owners Ass’n v. City of Hous., Tex., 660 F.3d 235, 239 (5th Cir. 2011)

(citation omitted). “[E]ven the standard of rationality as we so often have defined it must find

some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S.

312, 321 (1993).

A “State may not rely on a classification whose relationship to an asserted goal is so

attenuated as to render the distinction arbitrary or irrational. Furthermore, some objectives – such

as a bare desire to harm a politically unpopular group – are not legitimate state interests.”

Cleburne, 473 U.S. at 446-47 (citations, quotation marks, and ellipses omitted). The public’s

“mere negative attitudes, or fear” of a minority group “are not permissible bases” for differential

treatment, since the law cannot give effect to private biases. Id. at 448.

In this case, Mississippi says it has three legitimate interests in defining marriage as

exclusively between one man and one woman. Each will be considered in turn. The court will

then take up the plaintiffs’ argument that Mississippi’s same-sex marriage ban is unconstitutional

because it was motivated by impermissible animus toward homosexuals.

i.

Responsible Procreation

The State first argues that “defining marriage as between a man and woman steers

opposite sex couples’ potentially procreative conduct into stable and enduring family

relationships and thereby furthers the legitimate state interest of connecting children to stable

families formed by their biological parents.” Docket No. 22, at 23. This is known as the

responsible procreation theory.

This theory is somewhat misleading. Mississippi law makes marriage licenses available

without regard to a couple’s procreative capacity. Marriage licenses are issued to couples too old

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to bear children, couples biologically incapable of having children, couples incapable of having sex due to incarceration39, and couples who do not want to be parents.40 If responsible procreation were the reason for State recognition of marriage, thousands of couples in Mississippi would not be married today. There is no relationship between this “interest” and the State’s actual criteria for issuing marriage licenses.
However inarticulate the theory, the State is describing an interest in encouraging strong, long-lasting families, and healthy children supported by two parents.41 The plaintiffs agree that this is an appropriate and noble governmental objective. Accord Baskin, 766 F.3d at 661 (“encouraging marriage is . . . about enhancing child welfare by encouraging parents to commit to a stable relationship in which they will be raising the child together”). This is a legitimate end.
The problem is that the State’s limitation of marriage to opposite-sex couples is not a rational means of achieving that end. Gay and lesbian couples can form stable family units just as well as opposite-sex couples. Gay and lesbian couples can also love and care for children just as well as opposite-sex couples. It makes no sense to exclude them from an institution that promotes stable families and strengthens children. If the purpose of State-recognized marriage is to protect families and children, then the State should expand marriage rights to gay and lesbian couples, not bar them from it.
There’s another reason why the State’s limitation is irrational. Permitting same-sex marriage allows the State to continue to meet its articulated interest in encouraging “stable and enduring family relationships and . . . connecting children to stable families formed by their
39 The Mississippi Department of Corrections ended conjugal visits on February 1, 2014. Press Release, MDOC Ends Conjugal Visits, Mississippi Department of Corrections, Dec. 15, 2013. 40 The State also permits a panoply of miscreants to marry. See Courtney M. Cahill, “If Sex Offenders Can Marry, Then Why Not Gay and Lesbians?”: An Essay on the Progressive Comparative Argument, 55 Buff. L. Rev. 777, 784-85 (2007) (noting that murderers, rapists, pedophiles, sadists, masochists, actual sexual deviants, wife-beaters, and even “the wildest, most beast-like heterosexual male” can marry). 41 The State may argue that its articulation speaks only to biological parents. If biological parents were the real interest, stepparents would not be afforded full parental rights.
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biological parents.” Same-sex marriage doesn’t impede that goal at all. There is no reason to believe that opposite-sex couples will not marry because a same-sex couple can marry. White couples did not call off their marriages when the Supreme Court made interracial marriages lawful. Free-world couples did not cancel their weddings when the Supreme Court permitted incarcerated persons to marry. There is no harm to anyone else.42
The situation is reminiscent of the Supreme Court’s historic ruling in West Virginia Board of Education v. Barnett.
The freedom asserted by these appellees does not b ring them into collis ion with rights asserted by any other individual. It is such conflicts which m ost frequently require intervention of the State to de termine where the rights of one end and those of another begin. But the [desire] of these persons to particip ate in th e ceremony does not interfere with or deny ri ghts of others to do so. Nor is there any ques tion in this case th at their beha vior is peaceable a nd orderly. The so le conflict is between authority and rights of the individual. 319 U.S. 624, 630 (1943).43 A further consideration merits discussion. Like many states, Mississippi suffers when heterosexual parents have unprotected sex, bear children, and cannot take care of them. A number of those children end up in the foster care system, the juvenile justice system, and the children’s mental health system. These children need homes and caretakers that love them. Same-sex couples can help. As one Mississippi mom explained, “Children are precious to gay people because they are so hard to come by. We have to plan for them; they don’t come unexpectedly. And we are blessed to have them, we love them dearly.”44 Charlotte Graham, Religion and Same-Sex Marriages, The Clarion-Ledger, Sept. 14, 1996.
42 The State may actually benefit from same-sex marriage. A recent study estimated that “[e]xtending marriage to same-sex couples in Mississippi would generate an estimated $10.8 million in spending to the state economy.” O’Neill et al., Estimating the Economic Boost of Marriage for Same-Sex Couples in Mississippi, The Williams Institute, Oct. 2014. 43 A substitution has been made to complete the analogy, but the Supreme Court’s eloquence speaks for itself. 44 This is the essence of “responsible procreation.”
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Given the number of children in our State – or any state – awaiting placement in a stable

family environment, it is irresponsible to deny those children the shelter and enrichment that same-sex families can provide.45 There is no link between the State’s legitimate interest in

promoting strong families and healthy children, and its decision to prohibit same-sex marriage.

ii.

Tradition

The State next claims it has an interest “in exercising caution and rationally declining to

alter the man-woman definition of marriage understood as the norm for centuries.” Docket No.

22, at 26. The argument is an appeal to tradition.

This is a profoundly ahistorical view of the two laws at issue. Mississippi’s statute

defining marriage was enacted in direct response to the Hawaii decision on same-sex marriage.

See supra Part I.B.1. DOMA also was passed in response to that Hawaiian decision. Id.

Mississippi’s constitutional amendment banning same-sex marriage was enacted within 12

months of a Massachusetts court decision finding same-sex marriage constitutional in that state.

See supra Part I.B.2. There is nothing “cautious” about what happened; these laws were

reactionary. They targeted same-sex couples.

The appeal to tradition also reveals little understanding of the history of marriage.

Traditionally, “a woman had no legal existence separate from her husband,” and was “incapable,

without her husband’s consent, of making contracts which shall be binding on her or him.”

Bradwell, 83 U.S. at 141 (Bradley, J., concurring). Traditionally, “a wife was legally . . . her

45 “Placement bans that prohibit adoption by gays and lesbians operate to prevent orphans, particularly special needs children, from enjoying the advantages of the most beneficial placement option—adoption.” Tanya Washington, Suffer Not the Little Children: Prioritizing Children’s Rights in Constitutional Challenges to “Same-Sex Adoption Bans”, 39 Cap. U. L. Rev. 231, 231-32 (2011) (citation omitted). “[E]nactment and enforcement of [same-sex] placement bans essentially ensures that some children, particularly special needs children, will experience the documented harms associated with extended temporary and institutional care.” Id. at 234. A Mississippi law professor has discussed the need for altering the traditional adoption model in an insightful article. See Angela Mae Kupenda, Two Parents Are Better Than None: Whether Two Single, African American Adults—Who Are Not In A Traditional Marriage or a Romantic or Sexual Relationship With Each Other—Should Be Allowed to Jointly Adopt and Co-Parent African American Children, 35 U. Louisville J. Fam. L. 703, 720 (1997).
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husband’s property” and “it was legally impossible for a man to rape his wife.” Latta, 2014 WL

4977682, at *20-21 (Berzon, J., concurring) (brackets omitted). Traditionally, “divorce was

exceedingly difficult” and “a husband’s prerogative to chastise his wife – that is, to beat her short

of permanent injury – was recognized as his marital right.” Id. at *21. No one argues for those

traditions today.

The Supreme Court has made it “abundantly clear” that “the fact that the governing

majority in a State has traditionally viewed a particular practice as immoral is not a sufficient

reason for upholding a law prohibiting the practice.” Lawrence, 539 U.S. at 577. Congress

invoked tradition in passing DOMA; part of it was struck down. Windsor, 133 S. Ct. at 2693.

Tradition was the basis for defending Texas’s sodomy law; part of it too was rendered

unenforceable. Lawrence, 539 U.S. at 572.

It would be a mistake to conclude that courts abolish time-honored traditions. Rather,

courts resolve conflicts between “two conflicting traditions: the egalitarian one to which most

official documents have paid lip service over the past century, and the quite different and

malevolent one that in fact has characterized much official and unofficial practice over the same

period (and certainly before).” John Hart Ely, Democracy and Distrust 61 (1980) (emphasis

added). In Loving, Lawrence, and Windsor, the restrictions popular in those times yielded to our

egalitarian traditions of marriage, privacy, and dignity.

Today’s case is no different. “Tradition” will not suffice to uphold Mississippi’s marriage

ban.

iii.

The Political Process

The State’s final asserted interest in its same-sex marriage ban is its belief that

“fundamental social change is better cultivated through democratic consensus.” Docket No. 22,

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at 26. Judge Feldman endorsed similar reasoning when he upheld Louisiana’s same-sex marriage ban. Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 926-27 (E.D. La. 2014).
In this case, the State asks this Court to either (1) wait and see if the voters will undo the constitutional amendment they enacted in 2004, or (2) simply defer to the voters. Neither request is cognizable on rational basis review.
The first request explains how a governmental classification could be remedied, not how the classification achieves a legitimate government purpose. If rational basis review were satisfied by the government’s explanation of how a problem could be fixed, though, every classification would survive rational basis review. That cannot be the case. See Romer, 517 U.S. at 632.
The second request also is no defense of the law. As explained earlier, the judiciary does not defer to the voters’ decision to deprive others of constitutional rights. James Meredith was admitted to the University of Mississippi over the will of the voters.46 Edith Windsor was not told to send a strongly worded letter to her Congressman. The political process does not enforce individual constitutional rights. The judiciary does. See Barnette, 319 U.S. at 638.
This is especially true in the Supreme Court’s marriage and sexual privacy cases. In Loving, Virginia asked the Court to let it and 15 other states – approximately the same number of states which today outlaw same-sex marriage – keep their interracial marriage bans, in part by arguing that the plaintiffs “must look to the polls and not to the courts” for relief. Brief and Appendix on Behalf of Appellee at *38, Loving v. Virginia, No. 395, 1967 WL 113931 (U.S. Mar. 20, 1967); see Loving, 388 U.S. at 6. The Court disagreed. The Lovings could live in Virginia without awaiting legislative approval.
46 “The truth is that 90 percent of the white people of the state of Mississippi were opposed to Meredith entering the University of Mississippi.” Jere Nash & Andy Taggart, Mississippi Fried Politics 16 (2008) (quoting C.B. “Buddie” Newman, former Speaker of the Mississippi House of Representatives).
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Another example is found in an early constitutional challenge to sodomy, when the Fifth Circuit said it was “bound by the decision of the lawmakers of Texas” to criminalize sodomy in every setting. “Moral issues should be resolved by the people, and the laws pertaining thereto should be written or rescinded by the representatives of the people.” Baker, 774 F.2d at 1287. A few years later, this reasoning was rejected in Lawrence. The majority could not “use the power of the State to enforce these views on the whole society through operation of the criminal law.” Lawrence, 539 U.S. at 571.
The same-sex marriage cases have also suggested, albeit indirectly, that the political process argument lacks merit. Last month, the Ninth Circuit struck down Idaho’s same-sex marriage ban, which the voters enacted in 2006. Latta, 2014 WL 4977682. The Governor of Idaho then sought an emergency stay from the Supreme Court, arguing that “[e]ach same-sex marriage performed will be an affront to the interests of the State and its citizens in being able to define marriage through ordinary democratic channels.” Idaho Brief at 3. That was not enough. The stay was denied. Otter v. Latta, 135 S. Ct. 345 (2014).
There is no principled reason to think that Mississippi’s argument will be resolved any differently than Virginia’s, Texas’s or Idaho’s. No Supreme Court precedent suggests that today’s plaintiffs are entitled to less rigorous constitutional protections than the plaintiffs in those cases, or that Mississippi’s voters are entitled to more rights than voters in other states.
The Sixth Circuit disagrees. In upholding four states’ same-sex marriage bans, it expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, “from the claimants’ perspective, we have an eleven-year record marked by nearly as many successes as defeats and a
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widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold.” DeBoer, 2014 WL 5748990, at *20 (emphasis added).
The undersigned sees the judicial role differently. 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.47 The framers did not set up Article III to yield to “the superior force of an interested and overbearing majority.” The Federalist No. 10, supra. By honoring its obligation conferred by Article III, the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot.
Still, assume that the Sixth Circuit is right about the voters in that part of the country. There remains a distinct possibility that it may be wrong about voters elsewhere. Some research suggests that although “non-southerners respond to increased contact with gays and lesbians with warmer attitudes, this is not true in the Southern states.” Barth & Overby, Are Gay Men and Lesbians in the South the New “Threat”?: Regional Comparisons of the Contact Theory, 31 Politics & Policy 452 (Sept. 2003). Another study casts doubt on that conclusion, finding that “the amount and effect of contact [with LGBT persons] in the South was similar to that in other regions of the country.” Dawn M. Baunach et al., Southern (Dis)comfort: Sexual Prejudice and
47 The court is reminded of a decision of one of its colleagues, Judge William Barbour, a little more than 25 years ago. In ACLU of Miss. v. The Miss. State Gen. Servs. Admin., 652 F. Supp. 380, 381 (S.D. Miss. 1987), the question was “whether the display of a lighted cross on a state owned building during the Christmas season is unconstitutional under the Establishment Clause of the First Amendment.” Of course that litigation brought out the religious passions of many Mississippians. But Judge Barbour noted that an injunction was appropriate, reasoning that “it is immaterial that the majority of [the] taxpayers would approve the expenditure [of illuminating the cross].” Id. at 383. He explained, “[t]he public interest must fall on the side of Constitutional rights of individuals over the will of the majority. That is the underlying fundamental of the Bill of Rights of our Constitution.” Id. Though the issue Judge Barbour faced was different, his words are appropriate in addressing the issue here today. The Constitution cannot yield to the passions of the majority.
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Contact with Gay Men and Lesbians in the South, 30 Sociological Spectrum 30, 58 (2010)48; see also Barth & Perry, 2 > 1 + 1? The Impact of Contact with Gay and Lesbian Couples on Attitudes About Gays/Lesbians and Gay-Related Policies, 37 Politics & Policy 31, 43-47 (2009). The conflict cannot be resolved at the preliminary injunction stage.
Mississippi nonetheless remains unique in relevant ways. The 86% percent of Mississippi voters who opposed same-sex marriage in 2004 constituted the largest pro-traditional marriage vote in the country that year. Dustin Barnes, For Better or Worse?, The Clarion-Ledger, June 16, 2013. The size of the margin, in relation to the size of the gay community, casts doubt on the idea of using the political process to remove an unconstitutional law.
There also is the uncomfortable reality that a couple Southern states have taken decades to recognize interracial marriage. In Alabama, voters decided to remove their interracial marriage ban from the books only in 2000, 33 years after Loving was decided. Suzy Hansen, Mixing It Up, Salon, Mar. 8, 2001. Mississippi voters repealed this State’s ban on interracial marriage in 1987 – a mere 21 years post-Loving – and only then by a margin of 52%-48%. Miss. Official and Statistical Register 1998-1992 579. Despite this achievement, a poll released in 2011 suggested that “nearly half” of our State’s majority political party thought interracial marriage should be unlawful. J.F., Small Government, Then and Now, The Economist, Apr. 8, 2011.
If the passage of 50 years has had such negligible impact on the public’s opinion of interracial marriage in the Deep South, it is difficult to see how gay and lesbian Mississippians can depend on the political process to provide them any timely relief. And while they wait and see how the political process will play out, their legal rights and those of their children will
48 This study surveyed a relatively liberal group of college students (for the region), in a college town with a significant population of same-sex couples and multiple, large gay pride festivals. Baunach et al. at 39, 56.
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continue to be denied. As Justice Kennedy said in another same-sex marriage case, “[t]he voice of those children is important in this case, don't you think?” Hollingsworth Transcript, at *21.
For these reasons, the State’s interest in achieving democratic consensus, laudable as it is, is insufficient to uphold Mississippi’s same-sex marriage ban.
iv. Animus “The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.” Windsor, 133 S. Ct. at 2693 (citation omitted). Laws motivated by “an improper animus” toward a distinct class of persons require special scrutiny. Id. Animus is a legal term of art. It does attempt to discern the subjective motivation of the legislators or voters who passed the laws at issue. Instead, courts evaluating animus arguments are to look at “the design, purpose, and effect” of the challenged laws. Windsor, 133 S. Ct. at 2689; see also Romer, 517 U.S. at 627-28. The Supreme Court’s interpretation of a federal law “is highly persuasive to understand a similar state” law. Singer & Singer, Statutes and Statutory Construction § 51:6 (7th ed. 2012). Windsor’s interpretation of DOMA, a law both historically and substantively similar to Mississippi’s same-sex marriage ban, is therefore highly relevant to this analysis.49 The Windsor court considered only the title of the bill, one House Report from the bill’s legislative history, and the law’s “operation in practice.” Windsor, 133 S. Ct. at 2693-94. From these it concluded that DOMA has a “principal purpose . . . to impose inequality,” places samesex couples in second-tier relationships, “demeans the couple, whose moral and sexual choices
49 Although the Mississippi legislature has no formal legislative history, it is very likely that Mississippi’s 1997 marriage bill was influenced by DOMA. See Singer & Singer, Statutes and Statutory Construction § 48:3 (7th ed. 2014) (“courts generally turn to a law’s pre-enactment history to discover its purpose, or object, or the mischief at which it was aimed, when the statute’s language is inadequate to reveal legislative intent”). The State admits the 1997 bill was enacted “in light of developments afoot elsewhere.” Docket No. 22, at 1.
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the Constitution protects,” and “humiliates tens of thousands of children now being raised by same-sex couples.” Id. at 2694.50
Here, the design, purpose, and effect of Mississippi’s same-sex marriage ban is to single out same-sex couples and ensure that they cannot marry in Mississippi or have their out-of-state marriages recognized in Mississippi. As explained earlier, Mississippi’s 1997 “mini-DOMA” statutory definition of marriage and its 2004 constitutional amendment were passed in direct response to judicial decisions expanding our conception of same-sex rights. The 1997 bill was entitled, in relevant part, “An Act . . . to Prohibit Homosexual Marriages and to Provide that Homosexual Marriages Recognized in Another State Shall not Be Recognized in this State and Shall Be Declared Void in this State.” S.B. 2053, 112th Leg., Reg. Sess. (Miss. 1997). And the effect of the bill was (and is) to label same-sex couples as different and lesser, demeaning their sexuality and humiliating their children. The unrebutted testimony of the plaintiffs shows the deleterious effects of the ban on them and their children. They range from taxation to health care to the stigma imposed on their children.
As with DOMA, the “avowed purpose and practical effect” of Mississippi’s same-sex marriage ban “are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages .” Windsor, 133 S. Ct. at 2693. That is something the voters cannot do.
~ ~ ~ For these reasons, the plaintiffs are substantially likely to succeed on their claim that Mississippi’s same-sex marriage ban violates the Fourteenth Amendment.
50 Although the Supreme Court did not point to the debate, arguments, and conversations emanating from the halls of Congress, the vitriol which is recorded is unsettling. See, e.g., Carpenter, 2013 Sup. Ct. R. at 262-81; Franklin, 100 Va. L. Rev. at 845-50. That record demonstrates why the Supreme Court was empowered to use the words “injure,” “disapprov[e],” “disadvantage[],” “stigma[tize],” and “degrade” when describing what Congress did to same-sex couples in enacting DOMA, and why the Court could conclude that Congress “humiliate[ed]” children of same-sex couples. Windsor, 133 S. Ct. at 2693-95; see Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, 89 Ind. L.J. 27, 40 (2014).
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B. Irreparable Harm To succeed on their motion, the plaintiffs are also required to demonstrate “a substantial threat of irreparable harm if the injunction is not granted.” Opulent Life Church, 697 F.3d at 288. They must show “a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). “An injury is irreparable only if it cannot be undone through monetary remedies.” Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (citation omitted). The plaintiffs direct the court’s attention to some of the basic rights enjoyed by married couples. Mississippi’s laws prohibiting same-sex marriage touch many aspects of the plaintiffs’ lives, “from the mundane to the profound.” Windsor, 133 S. Ct. at 2694. They divest the plaintiffs and their families of rights and benefits that opposite-sex married couples are entitled to, including healthcare visitation and decision-making; adoption, custody, and other parental rights; and tax, wills, estates and probate benefits; among others. See supra Part II.A (compiling certain rights and benefits available to married couples under Mississippi law); Windsor, 133 S. Ct. at 2694-96 (discussing federal protections, benefits, and obligations available to married couples). The plaintiffs also claim that they suffer inestimable injuries because of the stigmatizing effects of Mississippi’s discriminatory laws. The State responds that although the denial of government benefits may be injurious to same-sex couples, these injuries can be rectified. For example, it argues that “tax returns could be re-filed or amended” if the plaintiffs prevail in this lawsuit. Docket No. 22, at 29. While that example may be true, it is equally true that amending paperwork cannot rectify every right or benefit presently denied to the plaintiffs. Suppose that next month, Joce
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becomes terminally ill and her local hospital denies Carla the visiting rights it grants married couples. The emotional damage would be profound and irreparable. The same can be said for Becky and Andrea, other members of the CSE, and every other committed same-sex couple without a State-recognized marriage.
The State then contends that any stigmatization is speculative, under the unfortunate theory that a preliminary injunction “would not alter” the public’s negative perceptions of gay and lesbian couples. But the court has already explained how the stigma faced by same-sex couples has very real personal and professional consequences. And although the public may or may not change its views, the government can be enjoined from enforcing laws which perpetuate the idea that same-sex couples are second-class citizens.
Finally, the State quotes out-of-circuit law to charge the plaintiffs with “unexcused delay” in filing this suit and seeking a preliminary injunction, saying it reflects a lack of urgency and an absence of irreparable harm. Id. at 30. The plaintiffs’ actions, however, reasonably track when they were actually denied marriage licenses, and in fact closely follow the Supreme Court’s decision to deny certiorari and stays of decisions from four appellate decisions striking down marriage bans indistinguishable from Mississippi’s, which may have led the plaintiffs to believe that the issue was decided as a matter of law. The tidal wave of post-Windsor litigation has resulted in more than 30 states with legal same-sex marriage, so plaintiffs’ timing in filing this suit can hardly come as a surprise.
In any event, it is well-established that the deprivation “of constitutional rights constitutes irreparable harm as a matter of law.” Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D. Miss. 1992) (citations omitted); see also Deerfield, 661 F.2d at 338.
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Because the plaintiffs are being deprived of constitutional rights, they are suffering irreparable injury and will continue to be harmed without a preliminary injunction.
C. Balance of Hardships The plaintiffs must next show that the injuries they are suffering outweigh any harm that an injunction may do to the defendants. If a court has made a finding of irreparable harm, a party opposing injunctive relief “would need to present powerful evidence of harm to its interests” to prevent the scales from weighing in the movant’s favor. Opulent Life Church, 697 F.3d at 297. On the other hand, “the injunction usually will be refused if the balance tips in favor of defendant.” 11A Charles A. Wright et al., Fed. Prac. & Proc. Civ. § 2948.2 (3d ed.). The State contends that granting an injunction will result in the “irreparable harm of denying the public interest in the enforcement of its laws.” Docket No. 22, at 30 (quoting Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013)). This argument merges with the public interest factor and will be taken up below. The State also claims it will be “tremendously” burdened by having to overhaul administrative systems used by various state, county, and local officials tasked with accommodating same-sex couples seeking to obtain marriage licenses and have their out-of-state marriages recognized. The Circuit Clerk of Hinds County evidently disagrees. After the hearing, she reportedly suggested that “the only foreseeable major change would be wording on marriage license paperwork, which her office has the authority to change in ‘under two minutes.’” Adam Ganucheau, Miss. Circuit Clerks Prepare for Gay Marriage Ruling, The Clarion-Ledger, Nov. 14, 2014. Other circuit clerks apparently told the newspaper that they could reprint their forms in
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two to 14 days. Id. Common sense tells us that reprinting forms to replace the words “husband” and “wife” with “spouse” and “spouse” is a minor inconvenience at best.
The circuit clerks, in fact, are likely to benefit from the revenue same-sex marriage licenses would bring to their offices. “Those licenses cost $21 a piece. We’ll make a lot more money if we have people lined up outside,” the Circuit Clerk of Hinds County was reported to have said. Id.
The State presses that its computer databases will also need to be modified to amend the “husband” and “wife” titles. The latter modifications will probably cost the government money. But that is not “powerful evidence of harm to its interests” that would preclude injunctive relief. Opulent Life Church, 697 F.3d at 297. Until the labels are changed, one spouse’s name can go in the “husband” field, and the other can go in the “wife” field. There is no reason to believe that the databases could not accommodate that kind of workaround. And, obviously, the burden on front-line government employees in processing marriage-related paperwork is exactly the same burden they incur when processing paperwork for opposite-sex couples.
On this record, there is nothing to suggest that any State or local government office will have to undertake extraordinary or Herculean efforts to comply. The harm that would result from denial of the requested injunction outweighs any harm the injunction might cause the State.
D. Public Interest Lastly, the plaintiffs must show that a preliminary injunction will not disserve the public interest. “Focusing on this factor is another way of inquiring whether there are policy considerations that bear on whether the order should issue.” Wright et al., at § 2948.4. The defendants argue that the public interest is served by enforcing its democratically adopted laws. Docket No. 22, at 31-32. They also argue that “at best there would be confusion
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and at worst there would be chaos” if this Court orders a preliminary injunction only to be reversed on appeal. Id. at 32. “Licenses may be voided. Benefits could be withdrawn,” it says. Id.
The State absolutely has an interest in enforcing the law. That is undeniable. But that interest yields when the law at issue violates the constitution.
Fifth Circuit precedent instructs that where laws violate a constitutional right, “the public interest is not disserved by an injunction preventing its implementation.” Opulent Life Church, 697 F.3d at 298 (citations omitted). This is true regardless of how the law was enacted. See Barnette, 319 U.S. at 638 (“fundamental rights may not be submitted to vote; they depend on the outcome of no elections”). The public’s interest in enforcing the law is always satisfied when the constitution is properly administered.
The idea that “chaos” will ensue if same-sex marriage commences, moreover, is contrary to the experience of more than 30 states which today recognize same-sex marriage. As plaintiffs observe, “so far, since Windsor, no fewer than twenty states have managed to do what was necessary to vindicate the equal rights of their gay citizens in marriage without breaking the bank in terms of the state budget or collapsing from the burden of administrative inconvenience.” Docket No. 28, at 7.
At oral argument, counsel for the State focused on the “chaos” he claimed was experienced in Utah, where the public was arguably subjected to whiplash in deciphering various stay rulings from the district court, Tenth Circuit, and Supreme Court.51 Any weight this argument had at oral argument, however, evaporated when the newspaper reported the following after the hearing:
51 The State of Utah had failed to ask for a stay in advance of the District Court’s ruling. Evans v. Utah, --- F. Supp. 2d ---, No. 2:14-CV-55, 2014 WL 2048343, at 1 (D. Utah May 19, 2014).
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Sherrie Swenson, county clerk for Salt Lake County, which is Utah’s most populated county, told The Clarion-Ledger Thursday her office did not witness “chaos” at all when the federal judge struck down Utah’s ban.

“We had hundreds of people lined up for multiple days, but ‘chaos’ isn't an appropriate way to describe it,” she said. “Everyone was so courteous and friendly and excited. We were able to issue about 150 licenses the first afternoon (after the ban was lifted) and about 350 that next Monday.” . . .

Swenson said her office had the same “bride” and “groom” terminology on forms when the Utah ban was struck down, but she allowed the couples to scratch out whatever terminology they wanted, and the marriages were still deemed legal by the county and state.
Ganucheau, supra.52

Because the laws at issue are unconstitutional, the public interest defendants seek to

protect would be harmed far more if enforcement were allowed to continue. Accordingly, the

court concludes that the public interest would not be disserved by granting a preliminary

injunction.

IV. The State’s Motion to Stay

The State has filed a conditional motion to stay this Preliminary Injunction so that it can

appeal. It seeks an immediate and indefinite pause on same-sex marriage, or at minimum, a 14-

day stay. See Docket No. 24, at 21.

A.

Legal Standard

A stay pending appeal sim ply suspends j udicial alteration of the status quo. W e consider four factors in deciding a moti on to stay pending a ppeal: (1) whether the stay applicant has m ade a s trong show ing that he is lik ely to su cceed on th e merits; (2) whether the applican t will be irreparably in jured absent a stay; (3 ) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public in terest lies. The first two factors . . . are the most critical.

Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (quotation marks and citation omitted). “A

stay is an intrusion into the ordinary processes of administration and judicial review, and

52 Newspaper articles aren’t evidence – but neither is argument of counsel.
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accordingly is not a matter of right, even if irreparable injury might otherwise result to the

appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (quotation marks and citation omitted).

“There is substantial overlap between these and the factors governing preliminary

injunctions; not because the two are one and the same, but because similar concerns arise

whenever a court order may allow or disallow anticipated action before the legality of that action

has been conclusively determined.” Id. at 434 (citation omitted).

For purposes of this motion, the State “need not always show a ‘probability’ of success

on the merits; instead, [it] need only present a substantial case on the merits when a serious legal

question is involved and show that the balance of the equities weighs heavily in favor of granting

the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (citations omitted).

B.

Discussion

The State has not shown that it presents a substantial case on the merits. Approximately

one-quarter of its brief opposing same-sex marriage was spent arguing Baker v. Nelson, the

application of which has been rejected by nearly every circuit court of appeal to consider same-

sex marriage after Windsor. The State’s primary articulated interest in preserving its same-sex

marriage ban was deemed “so full of holes that it cannot be taken seriously” by one of those

courts. Baskin, 766 F.3d at 656. Its remaining asserted interests summarily called for deference

to tradition and the ballot box without grappling with the counter-majoritarian difficulty this case

presents. There may be other cases making their way through the judiciary which present a

substantial case on the merits, but this is not one of them.

As to the second factor, the State will not be irreparably harmed absent a stay. The

“confusion and practical difficulties” it claims will occur are speculative and in fact discredited

by other facts. Over 10 years ago, the Mississippi State Board of Health showed that it was

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capable of amending birth certificates within 10 days, and at the moment some circuit clerks are ready to issue same-sex marriage licenses within “two minutes.” It is not credible to think that our State would find itself unable to process a technical change which already has been implemented in over 30 states.
This leads us to the third factor. The plaintiffs will be harmed by a stay. The Utah decision shows the specific rights same-sex couples in Mississippi are presently denied: joint adoption of children currently being raised by one same-sex couple, hospital visitation rights for another who previously had not been afforded that opportunity, and a third couple’s discovery “that they could save approximately $8,000.00 each year on health insurance.” Evans v. Utah, --F. Supp. 3d ---, No. 2:14-CV-55, 2014 WL 2048343, at *3 (D. Utah May 19, 2014). These are obviously important interests.
Of particular salience is the reality that the plaintiffs’ children have a strong interest in their parents being married. The State’s brief crassly suggests that this is entitled to no weight because Mississippians are unlikely to stop stigmatizing gay and lesbian citizens. The court is unpersuaded.
Finally, the public interest lies in enforcing the constitution. The State’s interest in the “stability” of laws outlawing same-sex marriage is entitled to no more deference than Virginia’s earlier interest in keeping its interracial marriage ban, the District of Columbia’s earlier interest in continuing to violate the Second Amendment, or Idaho’s interest in preserving its same-sex marriage ban.
C. Other Considerations That said, the State is likely correct that a race to the courthouse – with same-sex couples rushing to the circuit clerk’s office, and the State rushing to the Fifth Circuit – does not serve
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anyone’s interests. This is especially true with the Fifth Circuit scheduled to hear Louisiana and Texas’s same-sex marriage cases in just a month and a half.
The Louisiana court upheld that state’s same-sex marriage ban, so no stay pending appeal was necessary. Texas is another matter.
According to plaintiffs’ counsel, the preliminary injunction striking down Texas’s samesex marriage ban was stayed by consent of the parties. Transcript of Oral Argument at 157, Campaign for Southern Equality v. Bryant, No. 3:14-CV-818 (Nov. 12, 2014). At the hearing, she went on to explain that the Texas attorney “is not a happy camper right now,” since he has “a client who’s about to give birth, and she really, really, really wants to be the mother of the child and have her spouse or her partner be the other mother of the child when that child is born.” Id. Counsel then added,
I know for a fact that there are gay coupl es in Mississi ppi, some of whom were public employees, who face life- threatening injuries or lif e-threatening illnesses. And if they die in the next few days, God for – again, God forbid, they won’t have the benefits that they would get under state law . . . for pension benefits, et cetera. So this isn’t some theoretical thing. Id. at 157-58. The equities present a difficult question. A stay pending appeal risks harming some number of same-sex couples and their children, and the State has not met the most important factors required to receive a stay pending appeal. It will appeal, though, and the Fifth Circuit may want to consider the appeal alongside the parallel Louisiana and Texas cases. It is impossible to predict how the appellate court will weigh the deprivation of constitutional rights (by plaintiffs who oppose a stay) against the interest in circuit-wide uniformity.
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On balance, although no indefinite stay will issue today, the State will have time to present its arguments to the Fifth Circuit and let that court decide whether to dissolve or continue a stay pending appeal. This Preliminary Injunction will be stayed for 14 days. V. Conclusion
The Fourteenth Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi’s traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights.
Today’s decision may cause uneasiness and concern about the change it will bring. But “[t]hings change, people change, times change, and Mississippi changes, too.” The man who said these words, Ross R. Barnett, Jr., knew firsthand their truth.53
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.
This court joins the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law. The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children. Mississippi’s statute and constitutional amendment violate the Fourteenth Amendment to the United States Constitution. Accordingly,
IT IS HEREBY ORDERED that the State of Mississippi and all its agents, officers, employees, and subsidiaries, and the Circuit Clerk of Hinds County and all her agents, officers, and employees, are hereby preliminarily enjoined from enforcing Section 263A of the Mississippi Constitution and Mississippi Code Section 93-1-1(2).
53 Katagiri at 231-32.
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Case 3:14-cv-00818-CWR-LRA Document 30 Filed 11/25/14 Page 72 of 72 IT IS FURTHER ORDERED that this decision is stayed for 14 days. The 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.
SO ORDERED, this the 25th day of November, 2014. s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE
72

 
 Case: 14-60837 Document: 00513095811 Page: 1 Date Filed: 06/26/2015

No. 14-60837
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB, Plaintiffs-Appellees,
v.
PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; and JIM HOOD, in his official capacity as Mississippi Attorney General, Defendants-Appellants,

On Appeal from the United States District Court for the Southern District of Mississippi (Northern Division) No. 3:14-cv-00818-CWR-LRA (Hon. Carlton Reeves)
Appellees’ Motion for Immediate Lifting of Stay and Issuance of Mandate

Roberta A. Kaplan Andrew J. Ehrlich Jaren Janghorbani Joshua D. Kaye Jacob H. Hupart PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019 Telephone: (212) 373-3000 Facsimile: (212) 373-3990 rkaplan@paulweiss.com aehrlich@pailwess.com jjanghorbani@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com
Dale Carpenter UNIVERSITY OF MINNESOTA
LAW SCHOOL 229 Nineteenth Ave S. Minneapolis, MN 55455 Telephone: (612) 625-5537 Facsimile: (612) 625-2011 dalecarp@umn.edu

Robert B. McDuff Sibyl C. Byrd Jacob W. Howard MCDUFF & BYRD 767 North Congress Street Jackson, Mississippi 39202 Telephone: (601) 969-0802 Facsimile: (601) 969-0804 rbm@mcdufflaw.com scb@mcdufflaw.com
Diane E. Walton WALTON LAW OFFICE 168 S. Liberty Street Asheville, NC 28801 Telephone: (828) 255-1963 Facsimile: (828) 255-1968 diane@waltonlawoffice.com

Attorneys for Plaintiffs-Appellees

Case: 14-60837 Document: 00513095811 Page: 2 Date Filed: 06/26/2015
No. 14-60837
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB, Plaintiffs-Appellees, v.
PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; and JIM HOOD, in his official capacity as Mississippi Attorney General, Defendants-Appellants, CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of the case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.
1. Campaign for Southern Equality, Plaintiff-Appellee. Campaign for Southern Equality is a North Carolina non-profit corporation with no parent corporation. No publicly held company owns ten percent or more of the Campaign for Southern Equality’s stock.
2. Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla Webb, Plaintiffs-Appellees.
3. Paul, Weiss, Rifkind, Wharton & Garrison LLP, Counsel for all Plaintiffs-Appellees (Roberta A. Kaplan, Andrew A. Ehrlich, Jaren Janghorbani, Joshua D. Kaye, Warren Stramiello, and Jacob H. Hupart representing).
ii

Case: 14-60837 Document: 00513095811 Page: 3 Date Filed: 06/26/2015
4. Dale Carpenter, Counsel for all Plaintiffs-Appellees. 5. Walton Law Office, Counsel for all Plaintiffs-Appellees (Diane E. Walton representing). 6. McDuff & Byrd, Counsel for all Plaintiffs-Appellees (Robert B. McDuff, Sibyl C. Byrd and Jacob W. Howard representing). 7. Silin & Ellis, Counsel for all Plaintiffs-Appellees (Rita Nahlik Silin and Dianne Herman Ellis representing). 8. Phil Bryant, in his official capacity as the Governor of the State of Mississippi, Defendant-Appellant. 9. Jim Hood, in his official capacity as Mississippi Attorney General, Defendant-Appellant. 10. Barbara Dunn, in her official capacity as Hinds County Circuit Clerk. 11. Office of the Board Attorney for Hinds County, Counsel for Barbara Dunn (Anthony R. Simon and Pieter Teewussen representing). 12. Office of the Mississippi Attorney General, Counsel for Defendant-Appellants Phil Bryant and Jim Hood (Justin L. Matheny and Paul E. Barnes representing).
iii

Case: 14-60837 Document: 00513095811 Page: 4 Date Filed: 06/26/2015
Respectfully submitted, /s/ Roberta A. Kaplan Roberta A. Kaplan Attorney of Record for Plaintiffs-Appellees
iv

Case: 14-60837 Document: 00513095811 Page: 5 Date Filed: 06/26/2015
Plaintiffs-Appellees Campaign for Southern Equality, Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla Webb (collectively, “Appellees”) respectfully move this Court to lift its previously imposed stay, summarily affirm the district court’s decision below, and immediately issue a mandate. Such relief is appropriate in light of the Supreme Court’s recent decision in Obergefell v. Hodges, Nos. 14-556, 14-562, 14-571 & 14-574 (June 27, 2015). Any delay will unnecessarily prolong the violation of Appellees’ constitutional rights. Defendant-Appellant Jim Hood, in his official capacity as Mississippi Attorney General, does not oppose this motion. Defendant-Appellant Phil Bryant, in his official capacity as Governor of the State of Mississippi, opposes this motion.
STATEMENT OF THE CASE Currently pending before this Court is Campaign for Southern Equality v. Bryant, Case No. 14-60837, in which Plaintiffs-Appellees challenged Mississippi’s marriage laws, which bar gay couples from marrying and preclude the state from recognizing the lawful marriages of gay couples performed in other states. Those laws deny Plaintiffs-Appellees the equal protection under the law guaranteed by the Fourteenth Amendment and violate their fundamental right to marry guaranteed by the Due Process Clause of the Fourteenth Amendment.
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Following the decision in favor of Appellees at the district court, in which Judge Reeves granted a preliminary injunction holding Mississippi’s marriage ban unconstitutional, Campaign for S. Equality v. Brant, --- F. Supp. 3d --, 2014 WL 6680570, at *41 (S.D. Miss. 2014), the Fifth Circuit granted Mississippi’s motion for a stay. In so doing, this Court noted that a “temporary maintenance of the status quo” was proper because the Appellees’ constitutional claims would shortly be heard by the Fifth Circuit, and because the Court desired to prevent “[t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of law.” Campaign for S. Equality v. Bryant, 773 F.3d 55 (5th Cir. 2014).
Earlier today, the United States Supreme Court issued its opinion in Obergefell v. Hodges, which resolved precisely the issues before this Court in Campaign for Southern Equality. The Court saw no reason to delay implementation of its ruling, recognizing that “[t]he petitioners’ stories make clear the urgency of the issue they present to the Court.” Obergefell v. Hodges, No. 14556 (June 25, 2015) at 25. In the opinion, “[t]he Court now holds that same-sex couples may exercise the fundamental right to marry” and state laws to the contrary “are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.” Id. at 22-23 (emphasis added). Thus, the “temporary maintenance of the status quo”
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originally contemplated by this court thus no longer serves the interests of justice, and any concerns about “lack of continuity and stability in this important area of law” have been invalidated.
The decision in Obergefell is dispositive here and necessarily resolves all questions of law in this case. As such, not only should the stay be lifted, but this Court should summarily affirm the decision below and issue its mandate forthwith. There is, and can be, no dispute on this point. Indeed, within two hours of the Supreme Court’s decisions this morning in Obergefell, Attorney General Hood stated publicly that the Supreme Court opinion is “the law of the land” and that once this Court lifted the stay in this case, it “will become effective in Mississippi and circuit clerks will be required to issue same-sex marriage licenses.” There is simply no question that the United States Supreme Court has definitely resolved the questions of law raised by this appeal, and we respectfully submit that the Court should lift the stay, summarily affirm, and issue its mandate as soon as possible.
ARGUMENT I. The Stay Should Be Lifted Immediately
It has long been recognized that “the stay of an equitable order is an extraordinary device which should be sparingly granted” because it “interrupts the ordinary process of judicial review and postpones relief for the prevailing party.”
7

Case: 14-60837 Document: 00513095811 Page: 8 Date Filed: 06/26/2015
United States v. State of Tex., 523 F. Supp. 703, 729 (E.D. Tex. 1981). “A motion to modify or vacate a stay . . . is appropriate . . . when appellee plans to raise matters not previously considered by the district court.” David G. Knibb, Federal Courts of Appeals Manual § 21:7 (6th ed.). Such motions are adjudicated upon “the same equitable grounds as appl[ied]” when the stay was granted. Id. Accordingly, the Court must consider (1) whether Appellees have made a strong showing that they are likely to succeed on the merits; (2) whether Appellees will be irreparably injured absent a lifting of the stay; (3) whether lifting the stay will substantially injure Appellants; and (4) where the public interest lies. See Nken v. Holder, 556 U.S. 418, 426 (2009). Although all four of these factors militate in favor of lifting the stay in this action, “‘[t]he first two factors . . . are the most critical.’” Moore v. Tangipoahoa Parish Sch. Bd., 507 F. App’x 389, 392 (5th Cir. 2013) (quoting Nken, 556 U.S. at 434).
First, in granting a stay pending appeal, the Court recognized that this case presented a “conflict between the state’s historic power and authority over marriage and the constitutional rights of persons to make decisions in the most intimate and personal aspects of their lives,” over which federal courts were divided. Bryant, 773 F.3d at 57 (quotations omitted). But Obergefell has removed any doubt as to the merits of Appellees’ arguments. As the Supreme Court explained, “the right to marry is a fundamental right inherent in the liberty of the
8

Case: 14-60837 Document: 00513095811 Page: 9 Date Filed: 06/26/2015
person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Obergefell, Op. at 22. Accordingly, it is now abundantly clear that Appellees are “likely to succeed on the merits,” Nken, 556 U.S. at 426, because Appellees’ claims are squarely governed by Obergefell.
Second, Appellees will be irreparably injured if the stay remains in effect because they will continue to be deprived of their rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment. This continued deprivation “demeans” Appellees and “humiliates” their families, United States v. Windsor, 133 S. Ct. 2675, 2694 (2013), causing dignitary harms whose consequences are “unlikely ever to be undone.” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954). Indeed, this has never been in dispute: the District Court did not hold merely that Appellees might be injured by staying the injunctive relief sought, but rather it explicitly recognized that Appellees “will be harmed” by that stay. Campaign for S. Equality v. Bryant, --- F. Supp. 3d ---, 2014 WL 6680570, at *39 (S.D. Miss. 2014). Without reaching the merits of whether Appellees’ rights were actually violated—a question that has since been decisively resolved by Obergefell—this Court similarly recognized that Appellees would be “harmed by a continued violation of their constitutional rights,” assuming arguendo that such a violation could be caused by the marriage laws in question. Bryant, 773 F.3d at
9

Case: 14-60837 Document: 00513095811 Page: 10 Date Filed: 06/26/2015
58. This Court can still minimize the extent of that harm, however, by acting promptly to vacate its stay and allowing the injunctive relief granted by the District Court to go into effect.
The Attorney General of Mississippi has stated today that the “Supreme Court’s decision is not immediately effective in Mississippi. It will become effective in Mississippi, and circuit clerks will be required to issue samesex marriage licenses, when the 5th Circuit lifts the stay of Judge Reeves’ order.” Donesha Aldridge, AG Hood: Supreme Court gay marriage decision not immediately effective in Mississippi, WJTV 12 (June 26, 2015, 10:40am), http://wjtv.com/2015/06/26/ag-hood-supreme-court-gay-marriage-decision-notimmediately-effective-in-mississippi/. Therefore, until the Fifth Circuit lifts the stay of Judge Reeves’ decision invalidating Mississippi’s prohibition on gay marriage, thousands of gay couples will continue to be irreparably injured by being deprived of their constitutional right to marry, a right that has now been recognized and endorsed by the Supreme Court of the United States in Obergefell.
Third, Appellants would not be substantially injured if the stay were lifted because “a state is in no way harmed by [enforcement] of a preliminary injunction which prevents the state from enforcing restrictions . . . found unconstitutional. If anything, the system is improved by such an injunction.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (quotations
10

Case: 14-60837 Document: 00513095811 Page: 11 Date Filed: 06/26/2015
omitted). Nor can Appellants plausibly claim that prompt compliance with Obergefell would be unduly burdensome. There is no evidence before the Court that it would be administratively difficult for the State of Mississippi to begin issuing marriage licenses to gay couples, particularly since Appellants have been on notice that they might be required to do so since at least last year when this suit was brought.
Moreover, as the district court noted in rejecting that argument more than six months ago, “[c]ommon sense tells us that reprinting forms to replace the words ‘husband’ and ‘wife’ with ‘spouse’ and ‘spouse’ is a minor inconvenience at best.” Bryant, 2014 WL at *37. Defendant Barbara Dunn, Hinds County Clerk, confirmed that understanding, explaining that such typographical efforts, which could be completed “in ‘under two minutes,’” would constitute “‘the only foreseeable major change’” that Mississippi would have to implement if the stay were lifted. Id. (quoting Adam Ganucheau, Miss. Circuit Clerks Prepare for Gay Marriage Ruling, Clarion Ledger, Nov. 14, 2014).
Under these circumstances, “the value of the constitutional rights to be protected far outweighs [any] administrative costs that might be incurred.” Reed v. Rhodes, 549 F.2d 1050, 1052 (6th Cir. 1976) (vacating stay of injunction related to desegregation of schools).
11

Case: 14-60837 Document: 00513095811 Page: 12 Date Filed: 06/26/2015
Lastly, Appellants previously argued that this Court should stay the District Court’s injunctive relief “until the validity of state traditional marriage laws is ultimately decided . . . by the Supreme Court.” Opposed Emergency Motion to Stay Effect of Preliminary Injunction Pending Appeal at v, Campaign for S. Equality v. Bryant, No. 14-60837 (5th Cir. Nov. 26, 2014). Obergefell decided precisely that issue, making clear that “[t]he Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Obergefell, Op. at 27. Because “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights,” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (quotations omitted), it is now indisputable that the public interest lies in lifting this Court’s stay.
Indeed, recognizing the unequivocal impact of the Supreme Court’s decision in Obergefell, the Texas district court in De Leon v. Perry today lifted the stay it had previously imposed on its order enjoining the enforcement of Texas’ laws banning gay marriage. De Leon v. Perry, Case No. SA-13-CA-00982-OLG (W.D. Tex. June 26, 2015), D.E. #96 (“Based on the opinion issued today by the United States Supreme Court in Obergefell v. Hodges, No. 14-556, __ U.S. ___ (2015), the Court finds Plaintiffs’ motion [to lift the stay of injunction] should be GRANTED.”). The De Leon case involved precisely the same issues in Texas as
12

Case: 14-60837 Document: 00513095811 Page: 13 Date Filed: 06/26/2015
those presented by Campaign for Southern Equality in Mississippi; the appeals of both decisions were heard on the same day by the same oral argument panel in the Fifth Circuit. There is no reason that Appellees in Mississippi should be subject to a stay while the identically-situated plaintiffs in Texas are not. II. The Decision Below Should be Summarily Affirmed
This Court commonly issues summary affirmances when a decision by the Supreme Court resolves a pending case. See, e.g., Dresser-Rand Co. v. N.L.R.B., 576 Fed. Appx. 332 (5th Cir. 2014) (vacating order of the NLRB following the Supreme Court’s decision in Noel Canning, 134 S.Ct. 2550 (2014)). The Supreme Court’s decision in Obergefell, which decisively and unequivocally held that gay couples have the constitutional right to marry, is dispositive of all the legal issues presented in this case. The Fifth Circuit has repeatedly declared itself a “strict stare decisis court.” See, e.g., Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 782 (5th Cir. 2012); FDIC v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998), and so “must follow the Supreme Court’s directly controlling precedent.” Ballew, 668 F.3d at 782. Indeed, Defendant Jim Hood has conceded that Obergefell is controlling: “The Supreme Court decision is the law of the land and we do not dispute that. When the 5th Circuit lifts the stay of Judge Reeves’ order, it will become effective in Mississippi and circuit clerks will be required to issue samesex marriage licenses.” Donesha Aldridge, AG Hood: Supreme Court gay
13

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marriage decision not immediately effective in Mississippi, WJTV 12 (June 26, 2015, 10:40am), http://wjtv.com/2015/06/26/ag-hood-supreme-court-gaymarriage-decision-not-immediately-effective-in-mississippi/.
Therefore, this Court should summarily affirm the decision of the district court below, enabling the Supreme Court’s decision in Obergefell to be expeditiously enforced and implemented in Mississippi. III. A Mandate to the District Court Should Issue Immediately
Although federal courts of appeals typically issue mandates to district courts twenty-one days after issuing their opinions, see Fed. R. App. P. 40(a)(1) & 41(b), such a delay is unwarranted in this case. Federal Rule of Appellate Procedure 41(b) specifically provides an appellate court with discretion to “shorten . . . the time” for issuance of a mandate. The Court should do so here because Appellants cannot succeed on a motion for rehearing, as the Supreme Court’s ruling in Obergefell v. Hodges has rendered moot the questions pending before this Court. The gay marriage bans at issue in Obergefell are identical in all relevant respects to those at issue here. Since Obergefell held that such bans are unconstitutional, delaying issuance of the mandate here would serve no purpose.
Moreover, each day that the mandate is delayed is one more day that Appellees are deprived of their constitutional right to marriage. In light of the strong public interest in ensuring that unconstitutional laws are not given effect,
14

Case: 14-60837 Document: 00513095811 Page: 15 Date Filed: 06/26/2015
issuing an immediate mandate is particularly appropriate here. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012) (“Injunctions protecting [constitutional rights] are always in the public interest.” (quotations omitted)); see also, e.g., Steele v. Bd. of Pub. Instruction of Leon Cnty., Fla., 421 F.2d 1382, 1383 (5th Cir. 1969) (issuing an immediate mandate to prevent a school choice plan that could result in school segregation). This court should exercise its power to prevent such an unjust outcome.
CONCLUSION For the reasons stated above, we respectfully ask this Court to lift its previously imposed stay, summarily affirm the decision below by the district court, and immediately issue a mandate.
15

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Respectfully submitted,

Dated: June 26, 2015

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By: /s/ Roberta A. Kaplan Roberta A. Kaplan Lead Counsel Andrew J. Ehrlich Jaren Janghorbani Joshua D. Kaye Jacob H. Hupart
1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 757-3990 rkaplan@paulweiss.com aehrlich@paulweiss.com jjanghorbani@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com

MCDUFF & BYRD
Robert B. McDuff Sibyl C. Byrd 767 North Congress Street Jackson, Mississippi 39202 Tel: (601) 969-0802 Fax: (601) 969-0804 rbm@mcdufflaw.com scb@mcdufflaw.com
WALTON LAW OFFICE
Diane E. Walton 168 S. Liberty Street Asheville, NC 28801 Tel: (828) 255-1963 Fax: (828) 255-1968 diane@waltonlawoffice.com

Dale Carpenter UNIVERSITY OF MINNESOTA LAW SCHOOL 229 Nineteenth Ave S. Minneapolis, MN 55455 Tel: (612) 625-5537 Fax: (612) 625-2011 dalecarp@umn.edu

Attorneys for Plaintiffs-Appellees

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Case: 14-60837 Document: 00513095811 Page: 17 Date Filed: 06/26/2015
CERTIFICATE OF ELECTRONIC COMPLIANCE I hereby certify that, on this 26th day of June, 2015: (1) required privacy redactions have been made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the paper document, 5th Cir. R. 25.2.1; and (3) the document has been scanned with the most recent version of a commercial virus scanning program and is free of viruses.
/s/ Roberta A. Kaplan
Doc#: US1:10079947v5

Case: 14-60837 Document: 00513095811 Page: 18 Date Filed: 06/26/2015
CERTIFICATE OF SERVICE I hereby certify that on this the 26th day of June, 2015, I filed the foregoing brief with the Court’s CM/ECF system, which will automatically send an electronic notice of filing to all counsel of record. I also certify that I served the following persons via overnight mail: Justin Lee Matheny, Esq. Office of the Attorney General for the State of Mississippi 550 High Street, Walter Sillers Building Jackson, MS 39201 Paul Eldridge Barnes, Esq. Office of the Attorney General for the State of Mississippi 550 High Street, Walter Sillers Building Jackson, MS 39201
/s/ Roberta A. Kaplan
Doc#: US1:10079947v5

 
 Case: 14-60837 Document: 00512864387 Page: 1 Date Filed: 12/10/2014

REVISED, December 10, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 14-60837

December 4, 2014 Lyle W. Cayce

Clerk

CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB,

Plaintiffs - Appellees

v.

PHIL BRYANT, in his Official Capacity as Governor of the State of Mississippi; JIM HOOD, in his Official Capacity as Mississippi Attorney General,

Defendants - Appellants

Appeal from the United States District Court for the Southern District of Mississippi
Before PRADO, OWEN, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge:
By statute and constitutional provision, the State of Mississippi (“Mississippi” or “the State”) prohibits same-sex couples from marrying and does not recognize those marriages entered into by same-sex couples which have been validly performed and are recognized elsewhere (the “marriage bans” or the “bans”). See Miss. Const. art XIV, § 263A; Miss. Code. Ann. § 931-1(2). In October of 2014, two same sex couples, Rebecca Bickett and Andrea

Case: 14-60837 Document: 00512864387 Page: 2 Date Filed: 12/10/2014
No. 14-60837 Sanders and Jocelyn Pritchett and Carla Webb, and the Campaign for Southern Equality, a non-profit advocacy group (“Plaintiffs”), initiated a lawsuit challenging Mississippi’s marriage bans as violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In connection with their suit, Plaintiffs filed a motion for a preliminary injunction seeking to enjoin Mississippi from enforcing the bans.
On November 25, 2014, after conducting a hearing on Plaintiffs’ motion, the district court entered an order preliminarily enjoining Mississippi from enforcing the marriage bans. In addition, in response to a motion filed by the State, the district court stayed the effect of its own order for 14 days to permit the State to seek a further stay of the injunction pending an appeal to this court. Before this court now is Mississippi’s emergency motion to stay the effect of the district court’s injunction pending appeal. For the following reasons, Mississippi’s motion is GRANTED.
“A stay is an intrusion into the ordinary processes of administration and judicial review” and a party is not entitled to a stay as a matter of right. Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotations omitted). Nevertheless, the authority to “hold an order in abeyance pending review allows an appellate court to act responsibly” when faced with serious legal questions that merit careful scrutiny and judicious review. Id. An appellate court’s determination regarding the issuance of a stay requires an individual assessment of the case before it and an analysis of the circumstances attendant to the particular stay request. Id. at 433-34; Hilton v. Braunskill, 481 U.S. 770, 777 (1987).
In determining whether to grant a stay pending appeal, we consider four factors: “(1) whether the stay applicant has made a strong showing that he [or she] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
2

Case: 14-60837 Document: 00512864387 Page: 3 Date Filed: 12/10/2014
No. 14-60837 substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014); accord Nat’l Treasury Emps. Union v. Von Raab, 808 F.2d 1057, 1059 (5th Cir. 1987). In evaluating these factors, this court has refused to apply them “in a rigid . . . [or] mechanical fashion.” United States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983). Moreover, we have recognized that a “movant ‘need only present a substantial case on the merits when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay.’” Id. (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981); see also Von Raab, 808 F.2d at 1059. The instant motion presents just such a case.
We have little difficulty concluding that the legal questions presented by this case are serious, both to the litigants involved and the public at large, and that a substantial question is presented for this court to resolve. In reaching the merits of this appeal, this court will be confronted with a potential conflict between the state’s historic “power and authority over marriage” and “the constitutional rights of persons” to make decisions in the most intimate and personal aspects of their lives. See United States v. Windsor, 133 S.Ct. 2675, 2691 (2013); Lawrence v. Texas, 539 U.S. 558, 573-74 (2003). Further, while the majority of circuits to confront this issue have determined that marriage bans similar to the ones at issue here do not comport with the values of our constitution, that conclusion has not been universally shared. Compare Latta v. Otter, ___ F.3d ___, 2014 WL 4977682, at *11 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352, 384 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193, 1229-30 (10th Cir. 2014) with DeBoer v. Snyder, ___F.3d ___, 2014 WL 5748990, at *26-27 (6th Cir. Nov. 6, 2014). It is not our task today to resolve the merits of this conflict in deciding the instant motion, however, we are convinced by the opinions of our sister
3

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No. 14-60837 circuits that “a detailed and in depth examination of this serious legal issue” is warranted before a disruption of a long standing status quo. See Baylor Univ. Med. Ctr., 711 F.2d at 40.
Further, considerations of intra-circuit uniformity and the avoidance of confusion, should this court lift the stay that is currently in place only to shift gears after individuals have relied on this change in law, also militate in favor of granting the State’s motion. As the district court recognized, “a race to the courthouse—with same-sex couples rushing to the circuit clerk’s office, and the State rushing to the Fifth Circuit—does not serve anyone’s interest.” The inevitable disruption that would arise from a lack of continuity and stability in this important area of law presents a potential harm not just to Mississippi but to the Plaintiffs themselves and to the public interest at large. See Evans v. Utah, ___ F. Supp. 2d ___, 2014 WL 2048343, at *1-4 (D. Utah May 19, 2014) (discussing the confusion resulting from Utah’s marriage ban being enjoined and then subsequently reinstated). We note that these same concerns may have animated the Supreme Court when it granted a similar stay application while the issue of Utah’s marriage ban was pending before the Tenth Circuit. See Herbert v. Kitchen, 134 S.Ct. 893 (2014) (Sotomayor, J.).
Finally, while we recognize that Plaintiffs are potentially harmed by a continued violation of their constitutional rights, this harm is attenuated by the imminent consideration of their case by a full oral argument panel of this court. The court is scheduled to hear challenges related to Louisiana’s and Texas’s marriage bans in one month and has recently issued an order granting Plaintiffs’ application to expedite their appeal and scheduled the case for oral argument before the same panel. Given that Plaintiffs’ claims will soon be heard in conjunction with these two other cases, a temporary maintenance of the status quo balances the possibility of this harm with the need to resolve Plaintiffs claims in a manner that is both expeditious and circumspect.
4

Case: 14-60837 Document: 00512864387 Page: 5 Date Filed: 12/10/2014 No. 14-60837
Accordingly, Mississippi’s motion for stay pending appeal is GRANTED.
5

 
 Case 3:14-cv-00818-CWR-LRA Document 34 Filed 07/01/15 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB
v.

PLAINTIFFS CAUSE NO. 3:14-CV-818-CWR-LRA

PHIL BRYANT, in his official capacity as Governor ofthe State ofMississippi; JIM HOOD, in his official capacity as Mississippi Attorney General; and BARBARA DUNN, in her official capacity as Hinds County Circuit Clerk

DEFENDANTS

PERMANENT INJUNCTION

In light of the United States Supreme Court's decision in Obergefell v. Hodges, No. 14-

556,2015 WL 2473451 (U.S. June 26, 2015), and the issuance of the mandate from the United

States Court of Appeals for the Fifth Circuit, it is now appropriate to permanently enjoin the

enforcement of Mississippi's same-sex marriage ban. Accordingly,

IT IS HEREBY ORDERED that the State of Mississippi 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).

SO ORDERED, this the 1st day of July, 2015.

 
 Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 1 of 25

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN

§

EQUALITY; REBECCA BICKETT;

§

ANDREA SANDERS; JOCELYN

§

PRITCHETT; and CARLA WEBB,

§

§

Plaintiffs,

§

§

vs.

§

§

PHIL BRYANT, in his official capacity as §

Governor of the State of Mississippi; JIM §

HOOD, in his official capacity as

§

Mississippi Attorney

§

General; and BARBARA DUNN, in her

§

official capacity as Hinds County Circuit §

Clerk,

§

§

Defendants.

CIVIL ACTION NO. 3:14-cv-00818-CWR-LRA
Oral Argument Requested

MOTION TO REOPEN JUDGMENT, FILE SUPPLEMENTAL PLEADING, AND MODIFY THE PERMANENT INJUNCTION

Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 2 of 25 TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 RELEVANT FACTUAL AND LEGAL BACKGROUND ............................................................4
Plaintiffs’ Challenge to Mississippi’s Marriage Ban .......................................................... 4 The Permanent Injunction................................................................................................... 6 HB 1523 .............................................................................................................................. 8 ARGUMENT .................................................................................................................................10 I. The Court Should Reopen the Case Pursuant to Rule 60(b)..............................................11 II. Plaintiffs Should Be Permitted to Supplement the Complaint to Add a Defendant Pursuant to Rule 15(d) .......................................................................................................12 III. This Court Should Modify the Permanent Injunction........................................................15 CONCLUSION ..............................................................................................................................19
i

Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 3 of 25
TABLE OF AUTHORITIES
Page(s)
Cases
Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516 (5th Cir. 2010) ...................................................................................................13
United States v. Ashley, Crim. No. 05-60018, 2007 WL 4570895 (W.D. La. Nov. 30, 2007) ......................................10
Baden Sports, Inc. v. Kabushiki Kaisha Molten, No. C06-210MJP, 2008 WL 356558 (W.D. Wash. Jan. 29, 2008) .........................................16
Batts v. Tow-Motor Forklift Co., 66 F.3d 743 (5th Cir. 1995) .....................................................................................................11
Brown v. Board of Educ., 347 U.S. 483 (1954)...................................................................................................................9
Brown v. Plata, 131 S. Ct. 1910 (2011) .............................................................................................................11
Bynum v. Schiro, 219 F. Supp. 204 (E.D. La. 1963) ..............................................................................................3
Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, Inc., 257 F.2d 162 (5th Cir. 1958) ...................................................................................................12
Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 913 (S.D. Miss. 2014) ..................................................................... passim
Campaign for S. Equal. v. Bryant, 791 F.3d 625 (5th Cir. 2015) .................................................................................................1, 6
Campaign for S. Equal. v. Miss. Dep’t of Human Servs., --- F. Supp. 3d ----, 2016 WL 1306202 (S.D. Miss. Mar. 31, 2016) .....................................1, 8
United States v. City of Jackson, Miss., 318 F.2d 1 (5th Cir. 1963) .........................................................................................................3
United States v. City of New Orleans, 32 F. Supp. 3d 740 (E.D. La. 2014) ...................................................................................15, 16
Cooper v. Tex. Alcoholic Beverage Comm’n, --- F.3d ----, 2016 WL 1612753 (5th Cir. Apr. 21, 2016)..................................................11, 16
ii

Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 4 of 25
Ellis v. Miss. State Dep’t of Health, No. 4:04CV287, 2006 WL 2473987 (N.D. Miss. Aug. 25, 2006)...........................................14
Ennis Family Realty I, LLC v. Schneider Nat’l Carriers, Inc., 916 F. Supp. 2d 702 (S.D. Miss. 2013)....................................................................................13
Griffin v. Cnty. Sch. Bd., 377 U.S. 218 (1964).................................................................................................................13
Henderson v. Stewart, 82 F.3d 415 (5th Cir. 1996) .....................................................................................................13
Issaquena & Warren Cntys. Land Co., LLC v. Warren Cnty., Miss. Bd. of Supervisors, No. 5:07-cv-106-DCB-JMR, 2011 WL 6092450 (S.D. Miss. Dec. 7, 2011) ..........................15
Jones v. Gusman, 296 F.R.D. 416 (E.D. La. 2013)...............................................................................................15
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................................................................................................... passim
Portland Feminist Women’s Health Ctr. v. Advocates For Life, Inc., Civ. No. 86-559-FR, 1990 WL 21401 (D. Or. Mar. 2, 1990)..................................................16
Raduga USA Corp. v. U.S. Dep’t of State, 440 F. Supp. 2d 1140 (S.D. Cal. 2005)....................................................................................12
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981) ...................................................................................................11
Yesh Music v. Lakewood Church, 727 F.3d 356 (5th Cir. 2013) ...................................................................................................12
Statutes
HB 1523 (“Protecting Freedom of Conscience from Government Discrimination Act”)................................................................................................................................. passim
Other Authorities
Carolyn Renee Dupont, Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1970 (2013) ..........................................................................9
Cochran Statement on Supreme Court Ruling on Same-Sex Marriage, Thad Cochran: United States Senator for Mississippi (June 26, 2015) http://www.cochran.senate.gov/public/index.cfm/2015/6/cochran-statementon-supreme-court-ruling-on-same-sex-marriage .......................................................................8
iii

Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 5 of 25
Consent Decree, United States v. Harrison Cnty., Civ. No. 1:95-cv-00005, Dkt. No. 2 (S.D. Miss. Jan. 12, 1995)..............................................................................................15
Fed. R. Civ. P. 15 .......................................................................................................................4, 12 Fed. R. Civ. P. 19 ...........................................................................................................................14 Fed. R. Civ. P. 20 ...........................................................................................................................13 Fed. R. Civ. P. 21 ...........................................................................................................................14 Fed. R. Civ. P. 60 .................................................................................................................4, 11, 12 Governor Bryant Issues Statement on Supreme Court Obergefell Decision,
Governor Phil Bryant (June 26, 2015), http://www.governorbryant.com/governor-bryant-issues-statement-onsupreme-court-obergefell-decision/ ...........................................................................................8 Joel Wm. Friedman, Desegregating the South: John Minor Wisdom’s Role in Enforcing Brown’s Mandate, 78 Tul. L. Rev. 2207, 2212 (2004).............................................9 Loretta E. Lynch, Attorney Gen. of the U.S., Remarks at Press Conference Announcing Complaint Against the State of North Carolina to Stop Discrimination Against Transgender Individuals (May 9, 2016) ..............................................9
iv

Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 6 of 25
PRELIMINARY STATEMENT On October 20, 2014, Plaintiffs the Campaign for Southern Equality (“CSE”), Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla Webb brought this challenge to Section 263A of the Mississippi Constitution and Mississippi Code Section 93-1-1(2), which defined marriage as “only between a man and a woman” and prohibited “marriage between persons of the same gender,” respectively. On November 25, 2014, this Court struck down these laws because they “deprive[d] same-sex couples and their children of equal dignity under the law,” relegated gay and lesbian Mississippians to “second-class citizenship,” and violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 913 (S.D. Miss. 2014). Once the preliminary injunction order was affirmed by the United States Court of Appeals for the Fifth Circuit seven months later, 791 F.3d 625, 627 (5th Cir. 2015), this Court entered a permanent injunction enjoining the “State of Mississippi and all its agents, officers, employees, and subsidiaries” from enforcing the provisions of the Mississippi Constitution and code that barred gay couples from getting married as well as the recognition of their marriages in Mississippi. Permanent Injunction, Dkt. No. 34 (July 1, 2015) (the “Permanent Injunction”).1 No sooner had Plaintiffs begun to enjoy their rights as equal citizens in Mississippi, than Defendant Bryant signed into law HB 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act,” which authorizes, indeed encourages, discrimination against LGBT Mississippians based on certain “sincerely held religious beliefs” including that: (a) “[m]arriage is or should be recognized as the union of one man and one
1 Five weeks ago, another Court in this district, relying on those precedents, struck down Mississippi’s ban on gay couples adopting. See Campaign for S. Equal. v. Miss. Dep’t of Human Servs., --- F. Supp. 3d ----, 2016 WL 1306202 (S.D. Miss. Mar. 31, 2016). The state indicated that it would not appeal and has filed papers seeking to convert the preliminary injunction in that case into a permanent injunction. Def’s Mot. for Permanent Inj. and Final J., Dkt. No. 68 (May 5, 2016).
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woman”; (b) “[s]exual relations are properly reserved to such a marriage”; or (c) “[m]ale (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” HB 1523 § 2(a)–(c). The sweep of HB 1523 is extremely broad, giving the State’s official stamp of approval on discrimination against LGBT Mississippians in nearly every aspect of everyday life—from “floral arrangements,” id. § 3(5)(b), to “jewelry sales,” id., to “adoption or foster care,” id. § 3(2)–(3), to “psychological [or] counseling [] services,” for LGBT persons and their families. Id. § 3(4).
The sole focus of this motion, however, is Section 3(8) of HB 1523, which explicitly targets the rights of gay and lesbian couples to marry in Mississippi by permitting “any person employed or acting on behalf of the state government who has authority to authorize or license marriages” to “recuse” themselves from doing so for gay couples based on the abovedescribed “sincerely held religious beliefs,” provided that such notices of recusal are filed with the State Registrar of Vital Records of the Mississippi Department of Health (“MDH”) “who shall keep a record of such recusal.” Id. § 8(a).2 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,” id., 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.
This Court, however, has already made it clear that “the effect of the [Mississippi marriage ban] was (and is) to label same-sex couples as different and lesser, demeaning their sexuality and humiliating their children,” and that “[t]hat is something the voters cannot do.” Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d at 948–49. The effect of HB 1523, of course,
2 By this motion, which focuses solely on the “recusal” provisions in Section 3(8) of HB 1523, Plaintiffs do not (yet) challenge the other provisions in HB 1523.
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is no different. Indeed, any doubt about the potential for Section 3(8) of HB 1523 to interfere with this Court’s Permanent Injunction was eliminated when MDH took the position not only that it is not subject to the Court’s Permanent Injunction, but that neither MDH nor any state official other than a clerk who has filed a recusal has any responsibility whatsoever for ensuring that the constitutional rights of gay and lesbian couples in Mississippi who seek to marry are not “impeded or delayed.” See Ex. 2.
Thus, although 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, see United States v. City of Jackson, Miss., 318 F.2d 1, 5 (5th Cir. 1963) (ordering end of racial segregation in bus and railway terminals), the underlying impulse is exactly the same. HB 1523 seeks to relegate a minority group (here, LGBT Mississippians) to second-class citizenship in violation of the United States Constitution. The response from this Court today should be no different than it was from the federal courts decades ago. Defendants “must adjust to the reality” of LGBT equality under the law by making sure that the constitutional right of gay and lesbian Mississippians to marry is protected. Bynum v. Schiro, 219 F. Supp. 204, 206 (E.D. La. 1963) (Wisdom, J.) In other words, there can be no such thing as “separate, but (un)equal” marriage for gay and lesbian couples in Mississippi. 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. Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015). There really is “no excuse left—no excuse which a court, bound by respect for the Rule of Law, could now legitimize as a legal justification.” Bynum, 219 F. Supp. at 206.
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Accordingly, Plaintiffs respectfully move this Court to: (1) reopen this case pursuant to Rule 60(b) of the Federal Rules of Civil Procedure; (2) permit Plaintiffs to file a supplemental complaint adding Judy Moulder, the Mississippi Registrar of Vital Records, as a defendant for the avoidance of any doubt as to the applicability of this Court’s injunction to her and her office pursuant to Rule 15(d); and (3) modify the Permanent Injunction to require that: (a) the State of Mississippi and all its agents, officers, employees, and subsidiaries shall not impede or delay the authorization and licensing of any legally valid marriage to same-sex couples; (b) Defendants shall provide each recusal notice submitted under Section 3(8) of HB 1523 to Plaintiff CSE and this Court within one week of receipt; (c) any state officer or employee seeking to recuse himself or herself from issuing marriage licenses pursuant to Section 3(8) of HB 1523 shall submit to Plaintiff CSE and this Court a detailed plan identifying the steps he or she will take to ensure that the authorization and licensing of legally valid marriages to same-sex couples will not be impeded or delayed as a result of such recusal; (d) Defendants shall post all recusal notices to a prominent place on the website of MDH; and (e) any person recusing himself or herself under Section 3(8) of HB 1523 must treat all couples equally and shall therefore desist from issuing any marriage licenses to any other couples, including opposite-sex couples.
RELEVANT FACTUAL AND LEGAL BACKGROUND Plaintiffs’ Challenge to Mississippi’s Marriage Ban
Plaintiffs are lesbian residents of Mississippi who sought to marry or to have their out-of-state marriages recognized by the State of Mississippi, as well as CSE, a non-profit advocacy group with associational standing to advocate for its members including gays and
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lesbians who have not yet married.3 Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d at 913, 917–18. On November 25, 2014 this Court issued a Memorandum Opinion and Order (the “Preliminary Injunction Order”) holding that Mississippi’s ban on gay and lesbian couples marrying was unconstitutional because it “deprives same-sex couples and their children of equal dignity under the law” thereby subjecting them to “second-class citizenship.” Id. at 913. This second-class treatment could not stand, this Court explained, because, under the United States Constitution, “[g]ay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry.” Id. at 926 (citing Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Windsor, 133 S. Ct. 2675 (2013)).
In reaching this result, the Court described the long and painful history of discrimination against LGBT people in Mississippi. Id. at 930–37. As the Court noted, “[d]iscrimination against gay and lesbian Mississippians is not ancient history. The last five years reveals a number of complaints and lawsuits alleging discriminatory treatment at the hands of State and local governments.” Id. at 936. The Court observed that “Mississippi law perpetuates the false notion of gay inferiority by denying equal marriage rights to gay and lesbian citizens, prohibiting gay and lesbian couples from adopting children together, and requiring schools to teach the idea that gay sex is criminal. Even as public opinion changes in America, Mississippi law sends a plain message that gay and lesbian citizens are less deserving than other citizens.” Id. at 939 (citations omitted). Ultimately, this Court held that “[w]ithout the right to marry,” gay and lesbian Mississippians were being “subjected to humiliation and
3 Since this Court issued its Permanent Injunction, the four individual Plaintiffs have legally married or had their out-of-state marriage recognized by the State of Mississippi. Plaintiff CSE, however, represents gay and lesbian Mississippians who have not yet married but intend to do so and therefore continues to have associational standing to seek the requested relief. See Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d at 913, 917–18.
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indignity” and “state-sanctioned prejudice” in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at 913. The Permanent Injunction
While the appeal of the Preliminary Injunction Order was pending before the Fifth Circuit, the Supreme Court issued its decision in Obergefell v. Hodges, holding that “same-sex couples may exercise the fundamental right to marry” and state laws to the contrary “are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 135 S.Ct. at 2605 (emphasis added). The Supreme Court thus affirmed what this Court had already recognized: Mississippi’s marriage laws barring gay and lesbian couples from marrying and precluding the state from recognizing their marriages performed elsewhere were and are unconstitutional.
After the Supreme Court decision in Obergefell, the Fifth Circuit affirmed the Preliminary Injunction Order and remanded to this Court to “enter final judgment on the merits.” Campaign for S. Equal. v. Bryant, 791 F.3d at 627. In doing so, the Fifth Circuit noted that Obergefell, which established marriage equality throughout the United States, “is the law of the land, and consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court.” Id.
Following the remand from the Fifth Circuit, on July 1, 2015, this Court issued its Permanent Injunction in order to protect the fundamental right of gay and lesbian Mississippians to marry. The Permanent Injunction provides as follows:
In light of the United States Supreme Court’s decision in Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015), and the issuance of the mandate from the United States Court of Appeals for the Fifth Circuit, it is now appropriate to permanently enjoin the enforcement of Mississippi's same-sex marriage ban. Accordingly,
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IT IS HEREBY ORDERED that the State of Mississippi 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 93-11 (2). Permanent Injunction, Dkt. No. 34 (July 1, 2015) (emphasis added).
This Court was actively involved in ensuring that the Permanent Injunction was fully implemented in the weeks following its issuance. Specifically, early in July 2015, it initially appeared that clerks in certain counties in Mississippi were reluctant to comply with the Permanent Injunction. Plaintiffs informed the Court of this when they became aware of issues in four Mississippi counties where clerks were refusing to issue marriage licenses to gay and lesbian couples. (See Dkt. No. 38.) This Court was prepared to involve itself in the issue, but that involvement proved unnecessary when the recalcitrant clerks began issuing marriage licenses to gay and lesbian couples. Thus, on July 7, 2015, the Court sent the parties the following e-mail: “The Court has received your correspondence. With the Fourth of July holiday now past, hopefully you have had an opportunity to discuss the concerns raised by the plaintiffs in their letter of July 2 and subsequent email. The issues may now be resolved.” Email from Andrew Canter, Law Clerk to the Honorable District Judge Carlton W. Reeves (S.D. Miss.), to all counsel (July 7, 2015, 11:00 AM EST), Ex. 3. Fortunately, as Plaintiffs stated in an e-mail to the Court three days later, “at the Court’s direction, we have discussed these issues with the Attorney General. The Attorney General has confirmed that both Smith and Simpson Counties are willing to issue licenses to gay couples. Accordingly, all eighty-two counties in Mississippi are now in compliance with the Court’s order of July 1, 2015. We remain hopeful that this status quo will not change. Should there be any problems in the future, we will contact the Court promptly.” E-mail from Roberta Kaplan to Andrew Canter, Law Clerk to the Honorable District Judge Carlton W. Reeves (S.D. Miss.) (July 10, 2015, 7:02 AM EST), Ex. 4.
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HB 1523 Less than one year after entry of the Permanent Injunction, and not even a week
after entry of a preliminary injunction striking down Mississippi’s ban on gay couples adopting, see Campaign for S. Equal. v. Miss. Dep’t of Human Servs., --- F. Supp. 3d ----, 2016 WL 1306202 (S.D. Miss. Mar. 31, 2016), Defendant Bryant signed into law HB 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” This was hardly a surprise. On the day that the Supreme Court’s decision in Obergefell was handed down, Defendant Bryant issued the following statement: “Throughout history, states have had the authority to regulate marriage within their borders. Today, a federal court has usurped that right to self-governance and has mandated that states must 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.” See Governor Bryant Issues Statement on Supreme Court Obergefell Decision, Governor Phil Bryant (June 26, 2015), http://www.governorbryant.com/governor-bryant-issues-statement-on-supreme-court-obergefelldecision/. Similarly, Mississippi’s senior U.S. Senator Thad Cochran declared at the time that: “The Supreme Court decision does not and cannot change the firmly held faith of most Mississippians. I believe marriage is defined as the union of one man and one woman. The court’s decision raises questions about the protection of religious liberties and First Amendment rights, which the Congress may have to address. It is important that this ruling does not result in individuals, businesses, and religious-oriented schools and organizations being penalized by the government for their belief in the traditional definition of marriage.” See Cochran Statement on Supreme Court Ruling on Same-Sex Marriage, Thad Cochran: United States Senator for
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Mississippi (June 26, 2015) http://www.cochran.senate.gov/public/index.cfm/2015/6/cochran-
statement-on-supreme-court-ruling-on-same-sex-marriage.4
HB 1523 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.”
Obergefell, 135 S. Ct. at 2605. In addition to exhorting state residents to discriminate against
their gay, lesbian and transgender neighbors in a wide variety of circumstances, Section 3(8) of
HB 1523 specifically targets the equal access of gays and lesbians to marriage by purporting to
enable “[a]ny person employed or acting on behalf of the state government who has authority to
authorize or license marriages” to recuse themselves from issuing marriage licenses to gay or
lesbian couples so long as they profess to hold the “sincerely held religious belief” that
“[m]arriage is or should be recognized as the union of one man and one woman.” HB 1523
§§ 2(a), 3(8)(a). While Section 3(8) of HB 1523 gestures towards compliance with this Court’s
Permanent Injunction by providing that persons who recuse themselves in this manner must
ensure that doing so will not “impede[] or delay” the licensing of any marriage, HB 1523 is
absolutely silent as to how the right of all Mississippians who seek to legally marry, including
gay men and lesbians, will be protected under this new “recusal” system.
4 “This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation.” Loretta E. Lynch, Attorney Gen. of the U.S., Remarks at Press Conference Announcing Complaint Against the State of North Carolina to Stop Discrimination Against Transgender Individuals (May 9, 2016), available at https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-pressconference-announcing-complaint. The statements of Defendant Bryant and Senator Cochran cited above are eerily reminiscent of statements made by Mississippi officials after the United States Supreme Court decided Brown v. Board of Educ., 347 U.S. 483 (1954). “U.S. Senator James Eastland of Mississippi, for example, upon learning of the ruling [in Brown], immediately issued a written statement affirming that “[t]he South will not abide by nor obey this legislative decision by a political court.” Joel Wm. Friedman, Desegregating the South: John Minor Wisdom’s Role in Enforcing Brown’s Mandate, 78 Tul. L. Rev. 2207, 2212 (2004). Moreover, following Brown, national associations of Southern Baptists, Methodists, and Presbyterians endorsed the ruling and issued statements opposing segregation. Mississippi churches revolted and threatened to break with their national governing bodies. See Carolyn Renee Dupont, Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1970 63–65 (2013). Thus, for example, “Reverend R. L. McLaurin of Oakland Heights Presbyterian Church in Meridian defended segregation as the will of God: ‘I am opposed to and think that the recent Supreme Court decision is in violation and contradiction to the Scripture teachings on segregation.’” Id. at 74.
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Following the passage of HB 1523, Plaintiffs made inquiries of the relevant Mississippi authorities as to how the constitutional rights of gay and lesbian Mississippians to marry would be protected under HB 1523. Specifically, Plaintiffs wrote a letter to Defendants on April 25, 2016 (the “April 25 Letter”) requesting certain information, including a list of all individuals who had filed notices of recusal and the steps being taken to ensure that these recusals would not “impede or delay” the licensing of gay or lesbian marriages. Ex. 1. No substantive response was received until May 4, 2016, when MDH’s Office of Vital Records sent a letter (the “May 4 Letter”) arguing that it is somehow not “subject to the Permanent Injunction” despite the plain language of the Permanent Injunction because 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.” Ex. 2 at 1. The Office of Vital Records further contended that it “does not have any responsibility under Mississippi law” to protect Plaintiffs’ right to marry, and that HB 1523 does not require any state official other than the clerks who have filed recusals “to take any steps to ensure that anyone is not impeded or delayed when seeking to marry in the relevant county.” Id. at 2 (internal quotation marks omitted). Finally, the Office of Vital Records—the only state agency required under HB 1523 to keep a record of recusals—maintained that it “is under no obligation” to provide “continuing information” regarding recusals to Plaintiffs or anyone else. Id.
ARGUMENT Section 3(8) of HB 1523 deliberately circumvents the Permanent Injunction, which Defendants have chosen to read as narrowly as possible. But since “[a] right without a remedy is hollow indeed,” United States v. Ashley, Crim. No. 05-60018, 2007 WL 4570895, at *6 n. 7 (W.D. La. Nov. 30, 2007), Plaintiffs have filed the instant motion to create an
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enforcement mechanism to ensure that their constitutional right to marry will be adequately protected. I. The Court Should Reopen the Case Pursuant to Rule 60(b)
Rule 60(b) of the Federal Rules of Civil Procedure permits a court to reconsider a final judgment or order for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Here, Plaintiffs seek to modify the Permanent Injunction so as to ensure that the State of Mississippi and its agents do not impede or delay Plaintiffs’ exercise of the fundamental right to marry.
“The power of a court of equity to modify a decree of injunctive relief is longestablished, broad, and flexible.” Brown v. Plata, 131 S. Ct. 1910, 1946 (2011). As the Fifth Circuit recently reaffirmed, this includes the power to reopen a closed case in order to modify a permanent injunction to reflect changed circumstances. Cooper v. Tex. Alcoholic Beverage Comm’n, --- F.3d ----, 2016 WL 1612753, at *1–3 (5th Cir. Apr. 21, 2016) (permitting a defendant-intervenor to reopen a 25-year-old case in order to seek modification of the district court’s injunction of a Texas state law). This is so because Rule 60(b) “is a grand reservoir of equitable power to do justice in a particular case that may be tapped by the district court in the sound exercise of its discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981) (citations and internal quotation marks omitted).
Thus, a court may reconsider a final judgment whenever “extraordinary circumstances” require it to do so. Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995). Here, Defendants have attempted to circumvent this Court’s Permanent Injunction by purporting to authorize clerks to refuse to issue marriage licenses to gay or lesbian couples without any effective mechanism for protecting the constitutional rights of LGBT Mississippians. This extraordinary circumstance was not contemplated by the parties or the Court when the Permanent Injunction was issued less than a year ago and has rendered the
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current language of the Permanent Injunction insufficient to fully protect Plaintiffs’ rights. The deliberate attempt to evade the plain meaning of Obergefell and subvert the Court’s Permanent Injunction is precisely the sort of “extraordinary circumstance” that justifies reopening a closed case under Rule 60(b)(6). See, e.g., Yesh Music v. Lakewood Church, 727 F.3d 356, 363 (5th Cir. 2013) (holding that the district court did not abuse its discretion in permitting plaintiff to reopen a voluntarily dismissed case after the defendant violated an agreement made in open court).
Such relief is also appropriate here under Rule 60(c) because Plaintiffs have acted “within a reasonable time.” Fed. R. Civ. P. 60(c). HB 1523 was enacted on April 5, 2016, approximately one month ago. And, on May 4, 2016, Defendants replied to Plaintiffs’ written request for information by disclaiming any responsibility for ensuring compliance with the Permanent Injunction. Ex. 2. It is Defendants’ recent actions that have triggered Plaintiffs’ need to reopen this case. II. Plaintiffs Should Be Permitted to Supplement the Complaint to Add a Defendant
Pursuant to Rule 15(d) Rule 15(d) of the Federal Rules of Civil Procedure provides that upon the filing of
a motion, a court may permit a party “to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). The rule “makes liberal allowance for . . . supplemental pleadings.” Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, Inc., 257 F.2d 162, 167 (5th Cir. 1958). A supplemental complaint may be filed even after entry of final judgment. Raduga USA Corp. v. U.S. Dep’t of State, 440 F. Supp. 2d 1140, 1151 (S.D. Cal. 2005) (citing Griffin v. Cnty. Sch. Bd., 377 U.S. 218 (1964)). “Rule 15(d) of the Federal Rules of Civil Procedure plainly permits supplemental amendments to cover events happening after suit, and it follows, of course,
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that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice.” Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 228 (1964).
A court’s discretion in granting a motion to file a supplemental pleading “is to be guided by several factors: i) undue delay, bad faith or dilatory motive on the part of the movant; ii) undue prejudice to the nonmoving party; and iii) futility of supplementation.” Ennis Family Realty I, LLC v. Schneider Nat’l Carriers, Inc., 916 F. Supp. 2d 702, 717 (S.D. Miss. 2013). “In general, an application for leave to file a supplemental pleading is addressed to the discretion of the court and should be freely granted when doing so will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action.” Henderson v. Stewart, 82 F.3d 415, 415 (5th Cir. 1996) (per curiam) (quoting 6A Charles A. Wright et al., Federal Practice and Procedure § 1505 (2d ed. 1990)).
Moreover, a party may be joined in an action if the right to relief asserted against him or her arose out of the same occurrence, or series of occurrences, as the current defendant, and any question of law or fact common to all will arise in the action. Fed. R. Civ. P. 20(a)(2). “Under the Rules, the impulse is towards entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966)). Alternatively, a party who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined if the joinder is necessary to “accord complete relief among existing
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parties.” Fed. R. Civ. P. 19(a)(1)(A). Rule 21 provides that parties may be added, on just terms, by order of the court at any stage of the litigation. Fed. R. Civ. P. 21.
HB 1523 requires recusing clerks to submit a written notice of recusal “to the State Registrar of Vital Records who shall keep a record of such recusal.” § 3(8)(a). But the law does not require Ms. Moulder or the Office of Vital Records to make this information—which is necessary for guaranteeing that gay and lesbian Mississippians are not impeded or delayed from exercising their constitutional right to marry—available to Plaintiffs or to this Court, and Ms. Moulder, in fact, has refused to do so. In their May 4, 2016 letter, MDHS—in an apparent misreading of this Court’s clear and unambiguous order—asserts that its Office of Vital Records is not subject to the Permanent Injunction because it “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.” Ex. 2 at 1.
By its terms, however, the Permanent Injunction covers “the State of Mississippi and all its agents, officers, employees, and subsidiaries,” Dkt. No.34, including the Department of Health. See, e.g., Ellis v. Miss. State Dep’t of Health, No. 4:04CV287, 2006 WL 2473987, at *1 (N.D. Miss. Aug. 25, 2006) (“The Mississippi State Department of Health is an agency of the state of Mississippi[.]”). In order for the Court to ensure that Plaintiffs continue to receive the complete relief provided for in the Order, the Court must be able to order the Office of Vital Records to comply with federal law. Although Plaintiffs maintain that the Office of Vital Records and all Mississippi state agencies and employees are already within the scope of the Permanent Injunction, for the avoidance of doubt and out of an abundance of caution, Plaintiffs respectfully request leave to join Ms. Moulder, in her official capacity as State Registrar of Vital
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Records, as a defendant and for the Court to direct service of process upon her. A proposed supplemental complaint is attached hereto as Exhibit 5.
Because Plaintiffs’ need to reopen the case stems directly from the State’s recent enactment of HB 1523, again, there is no undue delay, bad faith, or dilatory motive. Issaquena & Warren Cntys. Land Co., LLC v. Warren Cnty., Miss. Bd. of Supervisors, No. 5:07-cv-106DCB-JMR, 2011 WL 6092450, at *2 (S.D. Miss. Dec. 7, 2011). To the contrary, requiring Plaintiffs to institute a new action to bring these claims would expose the parties to needless expense and delay. And in light of this Court’s clear Order holding that the State may not exclude gay and lesbian Mississippians from the institution of marriage, it is certainly not futile to allow supplementation at this time. See Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d at 926. III. This Court Should Modify the Permanent Injunction
Federal courts have long used their equitable power to protect citizens’ constitutional rights against violation by state governments and agencies. See, e.g., United States v. City of New Orleans, 32 F. Supp. 3d 740 (E.D. La. 2014) (modifying consent decree reforming unconstitutional conduct in New Orleans Police Department); Jones v. Gusman, 296 F.R.D. 416 (E.D. La. 2013) (approving consent judgment imposing requirements on Orleans Parish Prison, including appointment of a monitor to oversee implementation); Consent Decree, United States v. Harrison Cnty., Civ. No. 1:95-cv-00005, Dkt. No. 2 (S.D. Miss. Jan. 12, 1995) (bringing the Harrison County Adult Detention Center under Federal oversight pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997 et seq.).
In the context of injunctions issued by the federal courts, it is clear that this power does not end when the injunction is first issued. In fact, it is undisputed that “[t]he power of a federal court that enters an equitable injunction is not spent simply because it has once spoken.
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The federal courts have always affirmed their equitable power to modify any final decree that has prospective application.” Cooper v. Tex. Alcoholic Beverage Comm’n, --- F.3d ----, 2016 WL 1612753, at *2 (5th Cir. Apr. 21, 2016) (quoting League of United Latin American Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 436 (5th Cir. 2011)). See also, e.g., Baden Sports, Inc. v. Kabushiki Kaisha Molten, No. C06-210MJP, 2008 WL 356558 (W.D. Wash. Jan. 29, 2008) (modifying permanent injunction in response to new evidence of defendants’ infringement of plaintiff’s patent); Portland Feminist Women’s Health Ctr. v. Advocates For Life, Inc., Civ. No. 86-559-FR, 1990 WL 21401, at *1 (D. Or. Mar. 2, 1990) (granting plaintiffs’ motion to modify a preliminary injunction to reflect the fact that plaintiffs’ clinic had relocated to a new address). Indeed, “the Supreme Court held that amendment of a consent decree can be justified ‘where there were no factual or legal changes other than recognition of the fact that the initial remedy had failed.’” United States v. City of New Orleans, 32 F. Supp. 3d 740, 743 (E.D. La. 2014) (quoting League of United Latin American Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011) (citing United States v. United Shoe Mach. Corp., 391 U.S. 244, 252 (1968))).
This Court has already permanently enjoined the enforcement of existing state laws that excluded gay and lesbian couples from marriage in the State of Mississippi. See 64 F. Supp. 3d at 914–16; Dkt. No. 34. In crafting the Permanent Injunction, this Court obviously could not have reasonably anticipated that, merely ten months following its decision, the State of Mississippi would enact new legislation (HB 1523) that permits clerks and deputy clerks, among others, to “recuse” themselves from issuing marriage licenses to gay and lesbian couples and provides no mechanism to protect the right of gay and lesbian Mississippians.
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Accordingly, Plaintiffs request that this Court modify the Permanent Injunction in the following manner: (a) require that neither the State of Mississippi nor its agents, officers, employees, and subsidiaries shall impede or delay the authorization and licensing of any legally valid marriage between a same-sex couple; (b) order that the MDH and the State Registrar of Vital Records provide any recusal notice submitted under Section 3(8) of HB 1523 to CSE and to this Court within one week of receipt; (c) order that any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, who submits a notice of recusal must simultaneously submit to CSE and this Court a plan identifying the steps that he or she will take to ensure that the authorization and licensing of legally valid marriages will not be impeded or delayed in the relevant county as a result of his or her recusal; (d) order that MDH post all such recusal notices to a prominent place on its website; and (e) order that any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, who recuses himself or herself from issuing marriage licenses because of a “sincerely held religious belief” that gay people should not be able to marry shall desist from issuing marriage licenses to any other couples, including straight couples.
These modifications, intended to safeguard Plaintiffs’ constitutional right to marry, will provide the information needed to make sure that no constitutional violations have taken place as a result of Section 3(8) of HB 1523 and will help to facilitate a remedy for constitutional violations if and when they occur. Specifically, incorporating the language of HB 1523 into a federal court order—that “the authorization of any legally valid marriage is not impeded or delayed”—affords couples affected by recusals the ability to pursue federal
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Case 3:14-cv-00818-CWR-LRA Document 39 Filed 05/10/16 Page 23 of 25 remedies, such as a contempt motion, for the violation of their rights under the United States Constitution. As explained above, no such remedy is afforded under HB 1523 or elsewhere under state law. The requirement that any individual seeking to recuse themselves from issuing marriage licenses file a plan demonstrating that their action will not adversely impact the ability of gay and lesbian Mississippians to marry will allow this Court to ensure that the rights of LGBT Mississippians are not violated. Similarly, the provision requiring that individuals recusing themselves desist from issuing any and all marriage licenses will prevent the very equal protection violation that this Court sought to remedy in its Preliminary Injunction Order. In the wake of this Court’s ruling of November 25, 2014, and the Supreme Court’s decision in Obergefell, Defendants should not be permitted to impose a “separate, but (un)equal” system of marriage for gay and lesbian couples in Mississippi. See 64 F. Supp. 3d at 948–49; see also Obergefell, 135 S. Ct. at 2605.
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CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that this Court reopen the

case, grant Plaintiffs leave to file their supplemental complaint, and modify the Permanent

Injunction so as to prevent Defendants from impeding or delaying Plaintiffs’ exercise of the

fundamental right to marry.

Dated: May 10, 2016

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

MCDUFF & BYRD

By: /s/ Roberta A. Kaplan Roberta A. Kaplan* Lead Counsel Andrew J. Ehrlich* Jaren Janghorbani* Joshua D. Kaye* Jacob H. Hupart*
1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 757-3990 rkaplan@paulweiss.com aehrlich@paulweiss.com jjanghorbani@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com

By: /s/ Robert B. McDuff Robert B. McDuff Bar No. 2532 Sibyl C. Byrd Bar No. 100601 Jacob W. Howard Bar No 103256
767 North Congress Street Jackson, Mississippi 39202 Tel: (601) 969-0802 Fax: (601) 969-0804 rbm@mcdufflaw.com scb@mcdufflaw.com

*Admitted pro hac vice
Attorneys for Plaintiffs Campaign for Southern Equality, Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett and Carla Webb

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CERTIFICATE OF SERVICE I hereby certify that, on May 10, 2016, I electronically transmitted the above and foregoing document to the Clerk of the Court using the ECF system for filing.
By: _/s/Roberta A. Kaplan_ Roberta A. Kaplan
Admitted pro hac vice 1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 757-3990 rkaplan@paulweiss.com

 
 Case 3:14-cv-00818-CWR-LRA Document 52 Filed 06/27/16 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB

PLAINTIFFS

V.

CAUSE NO. 3:14-CV-818-CWR-LRA

PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; JIM HOOD, in his official capacity as Mississippi Attorney General; and ZACK WALLACE, in his official capacity as Hinds County Circuit Clerk

DEFENDANTS

ORDER

Before the Court is the plaintiffs’ Motion to Reopen Judgment, File Supplemental

Pleading, and Modify the Permanent Injunction. The matter is fully briefed and the parties

thoroughly argued their positions at a motion hearing held on June 20, 2016.

The plaintiffs are concerned that newly-enacted House Bill 1523, the “Protecting

Freedom of Conscience from Government Discrimination Act,” will violate the Permanent

Injunction they secured in this case in 2015. They seek to reopen the case to, among other things,

file a supplemental complaint naming the State Registrar of Vital Records as a defendant, force

the Registrar to post certain records online, and amend the Permanent Injunction to ensure that

their Fourteenth Amendment rights are protected. The State opposes all relief.

For the reasons that follow, the Court concludes that the motion should be granted in

limited part. Section 3(8)(a) of HB 1523 significantly changes the landscape of Mississippi’s

marriage licensing laws. The case will be reopened to address that change. The plaintiffs’ request

to file a supplemental complaint against the Registrar, however, will be denied.

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I. Factual and Procedural History A. Same-Sex Marriage Litigation In 2014, this Court issued a Preliminary Injunction enjoining the enforcement of § 263A
of the Mississippi Constitution and Mississippi Code § 93-1-1(2). Those authorities prohibited same-sex couples from receiving a marriage license in Mississippi or securing State recognition of an out-of-state marriage. Campaign for Southern Equality v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) [hereinafter CSE I]. The injunction was stayed pending appeal to the United States Court of Appeals for the Fifth Circuit.
While that appeal was pending, the Supreme Court affirmed that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015). Consequently, it pronounced that same-sex couples must be allowed to join in civil marriage “on the same terms and conditions as opposite-sex couples.” Id. at 2605. That resolved the issue nationwide.
The Fifth Circuit quickly issued a published opinion declaring that “Obergefell . . . is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court.” Campaign for Southern Equality v. Bryant, 791 F.3d 625, 627 (5th Cir. 2015) [hereinafter CSE II]. It returned the case here on July 1, 2015, with an instruction to “act expeditiously on remand and . . . enter final judgment . . . by July 17, 2015, and earlier if reasonably possible.” Id.
A few hours later, with this mandate in hand, this Court entered a Permanent Injunction and a Final Judgment in the plaintiffs’ favor. The heart of the Permanent Injunction read as follows:
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In light of the United States Supreme Court’s decision in Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015), and the issuance of the mandate from the United States Court of Appeals for the Fifth Circuit, it is now appropriate to permanently enjoin the enforcement of Mississippi’s same-sex marriage ban. Accordingly,
IT IS HEREBY ORDERED that the State of Mississippi 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). Docket No. 34. Much of this language was drawn from the Preliminary Injunction. At first, there was confusion about whether and how every Circuit Clerk’s office in Mississippi would follow Obergefell. “In a letter sent to Attorney General Jim Hood and Gov. Phil Bryant,” one article reported, “the clerks asked for direction on how to proceed.” Ross Adams, Circuit Clerks Refusing to Issue Same-Sex Marriage Licenses Seek Answers, WAPT News, July 1, 2015. “‘We clerks make no decisions of law,’” they wrote. Id. “‘We are tasked with the job of implementing the law. What is the law and how are we to properly follow it? We can be found liable . . . . We are formally stating we need your help.’” Id. The Attorney General’s Office responded to the clerks formally and informally. Among other things, it issued an Opinion advising all 82 Circuit Clerks to grant marriage licenses “to same-sex couples on the same terms and conditions accorded to couples of the opposite sex.” In re Steve Womack, 2015 WL 4920123, at *1 (Miss. A.G. July 17, 2015). Mississippi’s same-sex marriage ban had been laid to rest. B. House Bill 1523 In its next session, the Mississippi Legislature passed HB 1523. Governor Bryant signed the bill into law on April 5, 2016. It goes into effect on July 1, 2016.
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HB 1523 first enumerates three “sincerely held religious beliefs or moral convictions”
entitled to special legal protection. They 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 time of birth.
2016 Miss. Laws, HB 1523 § 2. These will be referred to as the “§ 2 beliefs.”
HB 1523 then says the State of Mississippi will not “discriminate” against any person for
holding a § 2 belief. Id. §§ 3-4. “Discriminatory action” is defined broadly; it includes
consequences in the realm of employment, state benefits, taxation, diplomas, licensing, and so
on. Id. § 4. In short, a person who acts (or declines to act) based upon a § 2 belief cannot be
subjected to State sanctions.
It is undisputed that consequences under federal law remain available. States “lack
authority to nullify a federal right or cause of action they believe is inconsistent with their local
policies.” Haywood v. Drown, 556 U.S. 729, 736 (2009). The part of HB 1523 relevant to this case is § 3(8)(a).1 It must be reproduced here in its
entirety.
Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act. Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The person who is recusing himself or herself shall 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.
1 The plaintiffs’ motion also mentions § 3(8)(b), which grants recusal rights to persons authorized to solemnize marriages in Mississippi. See Miss. Code Ann. §§ 93-1-15, 93-1-17. But the plaintiffs then omit § 3(8)(b) from their proposed Amended Permanent Injunction. This Order will focus on § 3(8)(a).
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HB 1523 § 3(8)(a). The State’s attorneys say that § 3(8)(a) “effectively amends Mississippi County Circuit Clerks’ Office’s marriage licensing obligations under state law by specifying conditions under which a clerk’s employee may recuse himself or herself from authorizing or licensing marriages.” Docket No. 41, at 6. According to those attorneys, HB 1523 requires marriage licenses to be issued to same-sex couples immediately. The law is not clear on who must bear that responsibility if every clerk in a particular county files a recusal form.2
From this summary the battle lines are apparent. The plaintiffs contend that permitting clerks to recuse themselves from serving same-sex couples returns Mississippi to unlawful discrimination against same-sex couples seeking to wed, in violation of the Permanent Injunction and Obergefell. HB 1523’s proponents, in contrast, claim that the bill protects against discrimination by ensuring that clerks do not have to violate a sincerely held religious belief protected by § 2, while ensuring that same-sex couples get their marriage license.
C. The Present Motion Twenty days after Governor Bryant signed HB 1523, the plaintiffs wrote the Governor, Attorney General Hood, and State Registrar of Vital Records Judy Moulder to ask how persons recusing themselves under HB 1523 would comply with this Court’s Permanent Injunction and Obergefell. The plaintiffs asked for copies of incoming written recusal notices and detailed compliance plans from each recusing individual. The State denied that the Registrar was bound by the injunction.3 It argued that she has nothing to do with enforcing Obergefell and would not provide the plaintiffs with any documentation unless they made a public records request. The State added that the Registrar’s
2 For simplicity, the Court will refer to persons with authority to issue marriage licenses as “clerks.” 3 The State initially treated the plaintiffs’ letter as a request for public records. The plaintiffs took exception to that interpretation and framed their request as one brought pursuant to Federal Rule of Civil Procedure 69.
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office would merely be a repository for recusal notices, with no duty to inquire into how recusing individuals would ensure that same-sex couples received a marriage license.
This motion followed. The plaintiffs seek an Amended Permanent Injunction requiring the Registrar to: (1) provide plaintiffs’ counsel with recusal notices within a week of receipt; (2) post the recusal notices to a prominent place on the State’s website; (3) require recusing individuals to submit a plan for complying with Obergefell; and (4) require recusing individuals to cease issuing marriage licenses to opposite-sex couples.
The State argues that the plaintiffs are seeking new, open-ended relief against an unknown number of parties not before the Court. It further contends that the plaintiffs have not been injured by HB 1523 and cannot complain about hypothetical constitutional violations. II. Legal Standard
“A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” United States v. Swift & Co., 286 U.S. 106, 114 (1932) (collecting cases). “Courts of equity have long recognized and exercised a power to modify or set aside their injunctive decrees in the light of changed circumstances.” Cook v. Birmingham News, 618 F.2d 1149, 1151 (5th Cir. 1980). The changed circumstances can be factual or legal, but must be “significant.” Horne v. Flores, 557 U.S. 433, 447 (2009); see ICEE Distributors, Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 850 (5th Cir. 2006). A legal change can be recognized “in either statutory or decisional law.” Agostini v. Felton, 521 U.S. 203, 215 (1997) (citations omitted).
“A Rule 60(b)(5) motion is the appropriate vehicle for modifying a permanent injunction that has prospective effect, regardless of whether the modification expands restrictions or
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eliminates restrictions in the injunction.” Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir. 2008) (citation omitted). The motion can be made by a party or by the Court. Id.
“The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once a party carries this burden, a court abuses its discretion when it refuses to modify an injunction or consent decree in light of such changes.” Horne, 557 U.S. at 447 (quotation marks and citations omitted).
“Although rule 60(b)(5) is to be construed liberally to prevent injustice, courts must also take account of a competing policy also embodied in the rule [–] the need to achieve finality in litigation.” Cook, 618 F.2d at 1153 (citations omitted). “That is, although the desideratum of finality is an important goal, the justice-function of the courts demands that it must yield . . . to the equities of the particular case in order that the judgment might reflect the true merits of the cause.” Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d 382, 385-86 (5th Cir. 2012) (quotation marks and citation omitted). III. Discussion
A. Jurisdiction “The correct analysis of the scope of the court’s continuing jurisdiction begins by identifying the constitutional infirmity addressed by this case in [earlier proceedings].” Brumfield v. Louisiana State Bd. of Educ., 806 F.3d 289, 299 (5th Cir. 2015) (citation omitted). “[A]ny order issued under the district court’s continuing jurisdiction over this case ha[s] to be related to correcting th[at] constitutional violation.” Id. at 299. The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.
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Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), 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.
The identity of issues is no coincidence. HB 1523’s proponents candidly admitted that the bill was passed in response to Obergefell.4 See H.B. 1523, Debate on the Floor of the Mississippi House of Representatives, at 6:24 (Feb. 19, 2016) (statement of Rep. Andy Gipson) (“What this bill does in essence is add an additional layer of protection that currently does not exist in the post-Obergefell decision [sic] that came from the Supreme Court in June of 2015, which legalized same-sex marriage throughout the United States, including in a majority of states that had adopted the traditional definition and only recognized marriage is between one man and one woman”); H.B. 1523, Debate on the Floor of the Mississippi Senate, at 2:34 (Mar. 31, 2016) (statement of Sen. Jenifer Branning) (“This legislation was brought forward as a result of the United States Supreme Court decision Obergefell last summer, that legalized same-sex marriage.”);5 see also Adam Ganucheau, Mississippi’s ‘Religious Freedom’ Law Drafted Out of State, Mississippi Today, May 17, 2016 (“‘After the Supreme Court decision in Obergefell (v. Hodges), it became apparent that there would be a head-on collision between religious
4 This is perhaps the most compelling distinction between today’s case and the State’s preferred authority, the Ninth Circuit’s per curiam decision in Planned Parenthood of S. Arizona v. Neely, 130 F.3d 400, 403 (9th Cir. 1997). 5 Videos of the floor debates have been preserved by the Mississippi College School of Law’s Legislative History Project. The HB 1523 videos are available at http://law.mc.edu/legislature/bill_details.php?id=4621&session=2016.
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convictions about gay marriage and the right to gay marriage created by the decision,’ [House Speaker] Gunn said in a statement to Mississippi Today.”).6
Because of the overlap in the specific constitutional infirmity, there is continuing jurisdiction to determine whether the Permanent Injunction should be modified to account for § 3(8)(a). See United States v. Hall, 472 F.2d 261, 265 (5th Cir. 1972).
B. Standing The State contends that the plaintiffs lack standing to seek an Amended Permanent Injunction. The argument fails to persuade. First, the standing requirement “does not hold . . . where a court has entered a permanent injunction or some other equitable decree with prospective application.” Cooper v. Texas Alcoholic Beverage Comm’n, 820 F.3d 730, 736 (5th Cir. 2016). “The permanent injunction remains in effect, even absent the original plaintiffs.” Id. Second, it is well-established that “[a] party that obtains a judgment in its favor acquires a judicially cognizable interest in ensuring compliance with that judgment.” Salazar v. Buono, 559 U.S. 700, 712 (2010) (quotation marks and citation omitted). “Having obtained a final judgment granting relief on [their] claims, [the plaintiffs] had standing to seek its vindication.” Id. Third, even if those principles were in doubt, the Campaign for Southern Equality continues to have associational standing. See Black Ass’n of New Orleans Fire Fighters (BANOFF) v. City of New Orleans, La., 853 F.2d 347, 352 (5th Cir. 1988).
6 The State objects to newspaper articles being considered as evidence. The objection is well-taken, but the articles are important for historical context. “History provides enlightenment; it appraises courts of the subtleties and complexities of problems before them.” Jaffree v. Wallace, 705 F.2d 1526, 1532 (11th Cir. 1983). If the State finds any particular newspaper reference objectionable, the discrete factual issue can be set for trial after an appropriate discovery period. See Monumental Task Comm., Inc v. Foxx, --- F. Supp. 3d ---, 2016 WL 311822, at *3 (E.D. La. Jan. 26, 2016) (crediting “the haste that is often necessary” in preliminary injunction proceedings for the general rule that “the findings of fact and conclusions of law made by a court deciding whether to grant a preliminary injunction are not binding at trial on the merits”). Newspaper articles aside, the videotaped legislative debates of HB 1523 provide a wealth of context and present little risk of incorrectly quoting legislators’ statements.
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Since the plaintiffs are seeking to protect their Permanent Injunction and Final Judgment, they have standing to bring this motion.
C. The Permanent Injunction Until June 2015, states like Mississippi treated same-sex couples differently than opposite-sex couples in the marriage licensing and recognition process. Obergefell and the Permanent Injunction were issued to halt that practice. Having reviewed the relevant section of HB 1523, the parties’ arguments, and the scope of the Supreme Court’s ruling in Obergefell, the Court finds that § 3(8)(a) may in fact amend Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell. Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction. The parties’ additional arguments are discussed below.
1. Other Circuit Clerks The parties dispute whether the 81 Circuit Clerks outside of Hinds County, who again are not parties to this action, are bound by the Permanent Injunction. Circuit Clerks are almost certainly aware of their obligations under Obergefell. They are also likely aware of the Permanent Injunction, given the Attorney General’s July 2015 private communications, public press release, and subsequent Opinion Letter to one of their colleagues. And it is obvious that when they issue marriage licenses, clerks are acting as agents of the State, applying uniform Mississippi law. See Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990). The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction. In Mississippi, Circuit Clerks are county officials, notwithstanding the fact that their duties are established by state law. United States v. Harris, No. 5:07-CR-1, 2007 WL 2028948, at *3 & n.2 (S.D. Miss. July 11, 2007).
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The Permanent Injunction affected the other 81 Circuit Clerks “only as precedent to be applied in subsequent litigation.” Josh Blackman & Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243, 255 (2016). The risks associated with that subsequent litigation are significant: “any official who forces that new lawsuit, loses, and is enjoined would be liable for the new plaintiffs’ reasonable attorneys’ fees.” Id. at 259. But they are risks a clerk may wish to take.
Since a contempt proceeding is the next foreseeable step in this case, the better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice.
2. Post-Judgment Discovery Under Federal Rules of Civil Procedure 65 and 69, plaintiffs are entitled to reasonable discovery to enforce an injunction against the parties bound by that injunction. E.g., Cooper v. Dallas Police Ass’n, 584 F. App’x 208 (5th Cir. 2014). Specific discovery disputes, if any arise, may be brought to the attention of the Magistrate Judge. That brings us to the disagreement about whether the Registrar is subject to the Permanent Injunction. Recall that the Permanent Injunction applied to “the State of Mississippi and all its agents, officers, employees, and subsidiaries . . . .” Docket No. 34. The Registrar is definitely a State agent, officer, and employee. State law charges her with a duty “to carry into effect the provisions of law relating to registration of marriages.” Miss. Code Ann. § 41-57-43; see also id. § 41-57-23(1) (permitting the Registrar to accept service of process for the Board of Health). The Registrar is also “charged by law with a[] special duty in
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connection with” § 3(8)(a), and she has pledged to fulfill that duty. Okpalobi v. Foster, 244 F.3d 405, 413, 415 (5th Cir. 2001) (en banc) (quotation marks and citation omitted).
The State presses that although the Registrar is a State employee, and State employees are bound by the plain language of the Permanent Injunction, she is not bound because “the State” is technically not a party to this lawsuit.7 See Docket No. 49. Although the Court will return to this argument below, some general thoughts about the Registrar are necessary here.
On one hand, the Registrar’s willingness to comply with her new duties under HB 1523 furthers the State’s alleged end-run around Obergefell. That may be enough to bind her under Rule 65(d)(2)(C). On the other hand, it is difficult to say that the Registrar is the true object of the plaintiffs’ motion. She is merely a conduit. Her records will show exactly which clerks wish to recuse themselves under § 3(8)(a), and those persons may be interested in volunteering to be a class representative to represent similarly-situated clerks. And yet, the plaintiffs may not need those records to find a willing class representative. See Beth Alexander, Circuit Clerks Answer if They Will Issue Licenses to Same-Sex Couples, WJTV, June 21, 2016.
Setting aside those issues for a moment, though, 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
7 The Preliminary Injunction entered in this case in November 2014 explicitly bound “the State of Mississippi and all its agents, officers, employees, and subsidiaries.” CSE I, 64 F. Supp. 3d at 954. If the State thought that verbiage an erroneous application of Ex Parte Young and the Eleventh Amendment, it should have raised it on appeal. See Dagnall v. Gegenheimer, 631 F.2d 1195, 1196 (5th Cir. 1980). It did not. In fact, when the Fifth Circuit asked the State to weigh in on the injunction’s validity in the wake of Obergefell, the State explicitly conceded its accuracy. The Fifth Circuit therefore held: “Because, as both sides now agree, the injunction appealed from is correct in light of Obergefell, the preliminary injunction is AFFIRMED.” CSE II, 791 F.3d at 627 (emphasis added). Given this record, the State’s argument as to the Registrar may be foreclosed by the law of the case doctrine. Supplemental briefing on this topic may be necessary. See Salazar, 559 U.S. at 713-14; Fred C. v. Texas Health & Human Servs. Comm’n, 167 F.3d 537 (5th Cir. 1998) (permitting Texas to argue Eleventh Amendment immunity for the first time on remand, in a case where the Fifth Circuit had remanded for further proceedings, not entry of Final Judgment).
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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, under Rule 69.
3. The State’s Interests Chief Judge Clark once wrote that the State of Mississippi “cannot dissociate itself from actions taken under its laws by labeling those it commands to act as local officials.” Echols, 909 F.2d at 801. That is exactly what the State is doing here. Its highest officers have been enjoined from treating same-sex couples differently when it comes to marriage licenses, but the State is now (1) letting county employees do the previously-enjoined act, and (2) refusing discovery into the identity of those county employees when that information will be in the State’s possession. The Fifth Circuit long ago chastised our State for such “a carefully calculated campaign of delay . . . and masterly inactivity.” Meredith v. Fair, 305 F.2d 343, 344 (5th Cir. 1962). We return to the Assistant Attorney General’s argument that “the State” is not a party and has a due process right to defend itself, as if it was somehow new to this case.8 The argument is disingenuous. The absence of “the State” from the case caption does not mean the State’s laws and interests are not at stake. As the Supreme Court explained in Hutto v. Finney, “[a]lthough the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began.” 437 U.S. 678, 699 (1978). The Fifth Circuit summarizes “the doctrine of Ex parte Young” as “a relatively simple rule of state immunity. Basically, prospective injunctive or declaratory relief
8 Even if the State is not a named defendant, the Governor and the Attorney General are. The Governor signed a law that arguably enables county employees to do what he and his agents were explicitly forbidden from doing, and the Attorney General is defending his actions in this and related lawsuits.
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against a state is permitted.” Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988) (emphasis added); see Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Kentucky v. Graham, 473 U.S. 159, 170 (1985). And a leading treatise confirms that under Ex parte Young, a federal court may “enjoin the implementation of an official state policy” because “the state is the real party in interest,” with the same result “as if the state had been sued directly.” Erwin Chemerinsky, Constitutional Law § 2.10.4.1 (5th ed. 2015).
The Supreme Court’s decision in Green v. Mansour may shed some light on our predicament. Green first reaffirmed that “[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” 474 U.S. 64, 68 (1985) (citations omitted). Its review of precedent then led it to reaffirm that federal courts may, in certain situations, order one-time relief which is “ancillary to the prospective relief already ordered by the court,” as long as it is not retroactive or monetary in nature. Id. at 70 (quoting Quern v. Jordan, 440 U.S. 332, 349 (1979)).
Today’s motion centers on the importance of State-authorized, State-held records to vindicate federal rights protected by an existing Permanent Injunction. One therefore wonders whether this Court may require the Registrar to provide plaintiffs with any recusal forms she receives in the first month of HB 1523’s enactment, because it is “ancillary to the prospective relief already ordered by the court.” Id.9 Such an order would impose no ongoing burden upon the Registrar, much less force the uploading of recusal forms to a State website. Rather, it moves all involved toward an efficient, single resolution: permitting a class of clerks to litigate and attempt to reconcile HB 1523 § 3(8)(a) with the Permanent Injunction. E.g., Mississippi State
9 Even if this Court could compel the Registrar to release every recusal she receives in July 2016, there is no guarantee she will have received any. Nothing in HB 1523 requires clerks to submit their recusal within the first 30 days (or even 60 or 90 days) of the law’s effective date. Under the bill it seems a clerk may submit that recusal at the moment a same-sex couple arrives to obtain a license.
14

Case 3:14-cv-00818-CWR-LRA Document 52 Filed 06/27/16 Page 15 of 16
Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400, 403 (5th Cir. 1991) (“included as defendants are the circuit clerks of two counties, representing a defendant class of Mississippi circuit clerks and county registrars”); Strawser v. Strange, 307 F.R.D. 604 (S.D. Ala. 2015).
4. Amending the Permanent Injunction Finally, before any notices are disseminated, any discovery requests are propounded, or any records are compelled, the parties must confer to reevaluate the language of the Permanent Injunction. The Permanent Injunction was entered the same evening the Fifth Circuit issued the mandate in CSE II. No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605; see Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.”); New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 (1979) (“The Clause announces a fundamental principle: the State must govern impartially.”). Clerks and their deputies are, after all, “public officials elected and paid by the county to serve the public and all of its citizens.” United States v. Duke, 332 F.2d 759, 766 (5th Cir. 1964). The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” CSE II,
15

Case 3:14-cv-00818-CWR-LRA Document 52 Filed 06/27/16 Page 16 of 16
791 F.3d at 627. 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. See Hutto, 437 U.S. at 690-91. IV. Conclusion
The motion is granted in part and denied in part. The case is reopened for the parties to confer about how to provide clerks with actual notice of the Permanent Injunction. The parties shall also confer on appropriate language to include in an Amended Permanent Injunction. A status conference will be set in the coming weeks to discuss the results of those discussions and hear how the parties wish to proceed.10 No other relief is granted at this time.
SO ORDERED, this the 27th day of June, 2016. s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE
10 The status conference will proceed regardless of the outcome of other HB 1523-related cases.
16

 
 Case 3:14-cv-00818-CWR-LRA Document 53 Filed 09/01/16 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN

§

EQUALITY; REBECCA BICKETT;

§

ANDREA SANDERS; JOCELYN

§

PRITCHETT; and CARLA WEBB,

§

§

Plaintiffs,

§

§

vs.

§

§

PHIL BRYANT, in his official capacity as §

Governor of the State of Mississippi; JIM §

HOOD, in his official capacity as

§

Mississippi Attorney General; and ZACK §

WALLACE, in his official capacity as

§

Hinds County Circuit Clerk,

§

§

Defendants. §

CIVIL ACTION NO. 3:14-cv-00818-CWR-LRA

AGREED ORDER WHEREAS on June 27, 2016 the Court entered an order granting in part Plaintiffs’ motion to reopen this matter to address certain sections of House Bill 1523 and directed the parties to meet and confer on related issues [Dkt. 52]; WHEREAS on June 30, 2016 the Court entered an order in Campaign for Southern Equality v. Bryant, 3:16-cv-442 (“CSE IV”) enjoining the enforcement of House Bill 1523, and the Court’s preliminary injunction in CSE IV is currently the subject of consolidated appeals pending before the United States Court of Appeals for the Fifth Circuit, Cause No. 16-60477; WHEREAS on August 12, 2016 the Fifth Circuit denied a stay pending appeal of this Court’s preliminary injunction in CSE IV;

Case 3:14-cv-00818-CWR-LRA Document 53 Filed 09/01/16 Page 2 of 3
WHEREAS House Bill 1523 remains enjoined in its entirety pending resolution of the merits of the consolidated appeal in Fifth Circuit Cause No. 16-60477;
THEREFORE IT IS HEREBY ORDERED that this action is stayed. Within thirty (30) days of the Fifth Circuit’s issuance of its mandate in the consolidated appeals in Cause No. 16-60477, the parties will meet and confer and submit to the Court a proposal for how to proceed in this action, consistent with this Court’s June 27, 2016 Order [Dkt. 52].
SO ORDERED, this 1st day of September, 2016
s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By: /s/ Roberta A. Kaplan Roberta A. Kaplan* Lead Counsel Andrew J. Ehrlich* Jaren Janghorbani* Joshua D. Kaye* Jacob H. Hupart*
1285 Avenue of the Americas New York, NY 10019-6064 Tel: (212) 373-3000 Fax: (212) 757-3990 rkaplan@paulweiss.com aehrlich@paulweiss.com jjanghorbani@paulweiss.com jkaye@paulweiss.com jhupart@paulweiss.com

FISHMAN HAYGOOD, LLP

By: /s/ Alysson Mills

.

Alysson Mills

Bar No. 102861

201 St. Charles Avenue, Suite 4600

New Orleans, Louisiana 70170

Tel: (504) 586-5253

Fax: (504) 586-5250

amills@fishmanhaygood.com

Case 3:14-cv-00818-CWR-LRA Document 53 Filed 09/01/16 Page 3 of 3

MISSISSIPPI ATTORNEY GENERAL’S OFFICE

MISSISSIPPI ATTORNEY GENERAL’S OFFICE

By_/s/ Justin L. Matheny________________ Justin L. Matheny Bar No. 100754 P.O. Box 220 550 High Street Jackson, MS 39205-0220 Tel: (601) 359-3825 Fax: (601) 359-2003 jmath@ago.state.ms.us

By_/s/ Tommy D. Goodwin______________ Tommy D. Goodwin Bar No. 100791 P.O. Box 220 550 High Street Jackson, MS 39205-0220 Tel: (601) 359-3523 Fax: (601) 359-0220 tgood@ago.state.ms.us

Attorney for Defendant Jim Hood in his official Attorney for Defendant Phil Bryant in his

capacity as Mississippi Attorney General

official capacity as Governor of the State of

Mississippi

 
 Case 3:14-cv-00818-CWR-LRA Document 55 Filed 10/27/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:14cv818-CWR-LRA

PHIL BRYANT, in his official capacity as

Governor of the State of Mississippi; JIM

HOOD, in his official capacity as Mississippi

Attorney General; and ZACK WALLACE,

in his official capacity as Hinds County

Circuit Clerk

DEFENDANTS

______________________________________________________________________________

AGREED ORDER ______________________________________________________________________________

WHEREAS on June 27, 2016 the Court entered an order granting in part plaintiffs’

motion to reopen this matter to address certain sections of 2016 House Bill 1523 and directed the

parties to meet and confer on related issues [Dkt. 52];

WHEREAS on June 30, 2016, the Court entered an order in Campaign for Southern

Equality v. Bryant, 3:16-cv-442 (“CSE IV”) enjoining the enforcement of 2016 House Bill 1523

(the “CSE IV Injunction Order”);

WHEREAS in light of the CSE IV Injunction Order, the Court entered an order on

September 1, 2016, staying the reopening of this matter (the “Stay Order”) [Dkt. 53] and

directing the parties to meet and confer and submit a proposal for how to proceed in this action

within thirty (30) days of the United States Court of Appeals for the Fifth Circuit’s issuance of its

mandate in Cause No. 16-60477;

Page 1 of 3

Case 3:14-cv-00818-CWR-LRA Document 55 Filed 10/27/17 Page 2 of 3
WHEREAS on June 22, 2017, the CSE IV Injunction Order was reversed by the United States Court of Appeals for the Fifth Circuit, Cause No. 16-60477;
WHEREAS on October 10, 2017, the Fifth Circuit issued its mandate in Cause No. 1660477 and 2016 House Bill 1523 is now in effect throughout Mississippi; and
WHEREAS on October 16, 2017, the Court held a telephonic status conference with the parties to discuss how to proceed in this matter;
THEREFORE, IT IS HEREBY ORDERED that the stay in this action is lifted. The plaintiffs are hereby authorized to serve, on or before October 30, 2017, up to five written interrogatories governed by Federal Rule of Civil Procedure 33 seeking to identify how many and which of the 82 county Circuit Clerk’s Offices in Mississippi, if any, have employees who have sought to recuse themselves from issuing marriage licenses to gay or lesbian couples, and the process by which they plan to handle such recusals pursuant to §3(8) of 2016 House Bill 1523. The parties agree that the defendants will serve their responses and objections, if any, to the plaintiffs’ written interrogatories on or before November 13, 2017, or such time as the parties may otherwise agree.
The Court directs the parties to continue to meet and confer regarding further discovery, if any, that may be required, the potential for a uniform procedure to apply statewide when a county Circuit Clerk’s Office employee has sought recusal pursuant to §3(8) of 2016 House Bill 1523, and the possibility of certifying a defendant class of Mississippi county Circuit Clerks pursuant to Federal Rule of Civil Procedure 23. If the parties cannot agree on the terms of future discovery, or any other issues, the parties shall seek relief via motion(s) filed with the Court
Page 2 of 3

Case 3:14-cv-00818-CWR-LRA Document 55 Filed 10/27/17 Page 3 of 3

within thirty (30) days of service of the defendants’ responses to the written interrogatories authorized above.
The plaintiffs acknowledge and agree that, by agreeing to the entry of this order, responding to the written interrogatories authorized above, continuing to meet and confer with plaintiffs, or otherwise, defendants have not waived, and do not waive, any defenses, objections, and/or appeal rights they may have with respect to the Court’s prior orders, this order, or further proceedings in this matter.
SO ORDERED, this the 27th day of October, 2017.

s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE

Agreed:
s/ Roberta A. Kaplan Roberta A. Kaplan, Esq. Alysson L. Mills, Esq. Joshua D. Kaye, Esq. Jaren Janghorbani, Esq.
Counsel for Plaintiffs

s/ Justin L. Matheny Justin L. Matheny, Esq. Paul E. Barnes, Esq.
Counsel for Defendant Attorney General Hood
s/ Tommy D. Goodwin Tommy D. Goodwin, Esq.
Counsel for Defendant Governor Bryant

Page 3 of 3

 
 Case 3:14-cv-00818-CWR-LRA Document 61 Filed 01/03/19 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

CAMPAIGN FOR SOUTHERN EQUALITY, et al.

PLAINTIFFS

V.

CAUSE NO. 3:14-CV-818-CWR-LRA

PHIL BRYANT, et al.

DEFENDANTS

ORDER

As there has been no activity in this matter for more than 12 months, the Clerk is directed

to administratively close this case.

An Order administratively closing a case is a management device for the convenience of

the Court. It does not affect the parties’ substantive or procedural rights. See Penn W. Assocs.

Inc. v. Cohen, 371 F.3d 118, 128 (3d Cir. 2004); Lehman v. Revolution Portfolio, LLC, 166 F.3d

389, 392 (1st Cir. 1999); American Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 715 (5th Cir.

2002) (Dennis, J., concurring).

If necessary, any party may move to reopen this case without payment of an additional

filing fee.

SO ORDERED, this the 3rd day of January, 2019.

s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE

 
 Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 1 of 14
CLOSED,LRA
U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:14−cv−00818−CWR−LRA

Campaign for Southern Equality et al v. Bryant et al Assigned to: District Judge Carlton W. Reeves Referred to: Magistrate Judge Linda R. Anderson Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/20/2014 Date Terminated: 01/03/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Campaign for Southern Equality

represented by Andrew J. Ehrlich − PHV PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: aehrlich@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Diane E. Walton − PHV WALTON LAW OFFICE 168 S. Liberty Street Asheville, NC 28801 828/255−1963 Fax: 828/255−1968 Email: diane@waltonlawoffice.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jacob H. Hupart − PHV PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: jhupart@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jaren Janghorbani − PHV PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: jjanghorbani@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua D. Kaye − PHV PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP − New York 1285 Avenue of the Americas

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 2 of 14
New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: jkaye@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff THE LAW OFFICE OF ROBERT MCDUFF 767 North Congress Street Jackson, MS 39202 601/969−0802 Fax: 601/969−0804 Email: RBM@McDuffLaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV KAPLAN & COMPANY, LLP 350 Fifth Avenue, Suite 7110 New York, NY 10118 212/763−0883 Email: rkaplan@kaplanandcompany.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Warren Stramiello − PHV PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP − New York 1285 Avenue of the Americas New York, NY 10019−6064 212/373−3000 Fax: 212/757−3990 Email: wstramiello@paulweiss.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alysson Leigh Mills FISHMAN HAYGOOD, LLP 201 St. Charles Avenue, Suite 4600 New Orleans, LA 70170−4600 504/586−5253 Fax: 504/586−5250 Email: amills@fishmanhaygood.com ATTORNEY TO BE NOTICED
Dianne Herman Ellis ELLIS LAW FIRM, PLLC 1145 Robinson Street Ocean Springs, MS 39564 228/215−0037 Fax: 228/284−1889 Email: dianne@ellislawfirmms.com ATTORNEY TO BE NOTICED
Rita Nahlik Silin SILIN & ELLIS 1161 Robinson Street Ocean Springs, MS 39564 228/215−0037 Fax: 888/449−6044

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 3 of 14

Plaintiff Rebecca Bickett

Email: rita@silinlaw.com ATTORNEY TO BE NOTICED
Sibyl C. Byrd SIBYL C. BYRD, ATTORNEY AT LAW P. O. Box 16095 Jackson, MS 39236 601/918−5476 Email: attorney.sibyl.byrd@gmail.com ATTORNEY TO BE NOTICED
represented by Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diane E. Walton − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jaren Janghorbani − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Warren Stramiello − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alysson Leigh Mills (See above for address) ATTORNEY TO BE NOTICED
Dianne Herman Ellis

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 4 of 14

Plaintiff Andrea Sanders

(See above for address) ATTORNEY TO BE NOTICED
Rita Nahlik Silin (See above for address) ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diane E. Walton − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jaren Janghorbani − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Warren Stramiello − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alysson Leigh Mills (See above for address) ATTORNEY TO BE NOTICED
Dianne Herman Ellis

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 5 of 14

Plaintiff Jocelyn Pritchett

(See above for address) ATTORNEY TO BE NOTICED
Rita Nahlik Silin (See above for address) ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diane E. Walton − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jaren Janghorbani − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Warren Stramiello − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alysson Leigh Mills (See above for address) ATTORNEY TO BE NOTICED
Dianne Herman Ellis

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 6 of 14

Plaintiff Carla Webb

(See above for address) ATTORNEY TO BE NOTICED
Rita Nahlik Silin (See above for address) ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J. Ehrlich − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diane E. Walton − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob H. Hupart − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jaren Janghorbani − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D. Kaye − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roberta A. Kaplan − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Warren Stramiello − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alysson Leigh Mills (See above for address) ATTORNEY TO BE NOTICED
Dianne Herman Ellis

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 7 of 14
(See above for address) ATTORNEY TO BE NOTICED
Rita Nahlik Silin (See above for address) ATTORNEY TO BE NOTICED
Sibyl C. Byrd (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Phil Bryant in his Official Capacity as Governor of the State of Mississippi
Defendant Jim Hood in his Official Capacity as Mississippi Attorney General
Defendant Barbara Dunn in her Official Capacity as Hinds County Circuit Clerk

represented by Justin L. Matheny−State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205−0220 601−359−3825 Fax: 601−359−2003 Email: jmath@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tommy D. Goodwin−State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205−0220 601/359−3523 Fax: 601/359−2003 Email: tgood@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul E. Barnes−State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE 550 High Street Jackson, MS 39201 601/359−4072 Fax: 601/359−2003 Email: pbarn@ago.ms.gov ATTORNEY TO BE NOTICED
represented by Justin L. Matheny−State Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul E. Barnes−State Gov (See above for address) ATTORNEY TO BE NOTICED
represented by Pieter Teeuwissen SIMON & TEEUWISSEN, PLLC 621 East Northside Drive

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 8 of 14
Jackson, MS 39206 601/366−8400 Fax: 601/366−2292 Email: adwoodard@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/20/2014
10/20/2014 10/20/2014 10/20/2014
10/20/2014 10/20/2014 10/20/2014 10/20/2014 10/20/2014 10/20/2014 10/20/2014 10/20/2014
10/20/2014 10/20/2014 10/20/2014 10/20/2014

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Phil Bryant, Barbara Dunn, and Jim Hood ( Filing fee $ 400 receipt number 34643029820), filed by Campaign for Southern Equality, Rebecca Bickett, Jocelyn Pritchett, Carla Webb, and Andrea Sanders. (Attachments: # 1 Civil Cover Sheet)(ND) (Entered: 10/20/2014)
2 Summons Issued as to Phil Bryant, Barbara Dunn, and Jim Hood. (ND) (Entered: 10/20/2014)
3 Corporate Disclosure Statement by Campaign for Southern Equality (McDuff, Robert) (Entered: 10/20/2014)
4 MOTION for Preliminary Injunction by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Declaration of Rebecca Bickett, # 2 Exhibit Declaration of Jocelyn Pritchett)(McDuff, Robert) (Entered: 10/20/2014)
5 MEMORANDUM in Support re 4 MOTION for Preliminary Injunction filed by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (McDuff, Robert) (Entered: 10/20/2014)
6 MOTION for Roberta Kaplan to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Certificate of Good Standing)(McDuff, Robert) (Entered: 10/20/2014)
Pro Hac Vice fee paid for Roberta Kaplan receipt number 0538−2801813 $ 100 (McDuff, Robert) (Entered: 10/20/2014)
7 MOTION for Andrew Ehrlich to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Certificate of Good Standing)(McDuff, Robert) (Entered: 10/20/2014)
Pro Hac Vice fee paid for Andrew Ehrlich receipt number 0538−2801818 $ 100 (McDuff, Robert) (Entered: 10/20/2014)
8 MOTION for Jacob Hupart to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Certificate of Good Standing)(McDuff, Robert) (Entered: 10/20/2014)
Pro Hac Vice fee paid for Jacob Hupart receipt number 0538−2801822 $ 100 (McDuff, Robert) (Entered: 10/20/2014)
9 MOTION for Jaren Janghorbani to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Certificate of Good Standing)(McDuff, Robert) (Entered: 10/20/2014)
Pro Hac Vice fee paid for Jaren Janghorbani receipt number 0538−2801839 $ 100 (McDuff, Robert) (Entered: 10/20/2014)
10 MOTION for Joshua Kaye to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Certificate of Good Standing)(McDuff, Robert) (Entered: 10/20/2014)
Pro Hac Vice fee paid for Joshua Kaye receipt number 0538−2801842 $ 100 (McDuff, Robert) (Entered: 10/20/2014)
11 MOTION for Warren Stramiello to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Certificate of Good Standing)(McDuff, Robert) (Entered:

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 9 of 14

10/20/2014 10/21/2014
10/21/2014 10/21/2014 10/21/2014 10/22/2014
10/22/2014 10/24/2014 10/24/2014 10/24/2014 11/05/2014 11/05/2014 11/06/2014 11/07/2014
11/10/2014

10/20/2014)
Pro Hac Vice fee paid for Warren Stramiello receipt number 0538−2801845 $ 100 (McDuff, Robert) (Entered: 10/20/2014)
TEXT−ONLY ORDER granting 6 Motion to Appear Pro Hac Vice of ROBERTA KAPLAN; granting 7 Motion to Appear Pro Hac Vice of ANDREW EHRLICH; granting 8 Motion to Appear Pro Hac Vice of JACOB HUPART; granting 9 Motion to Appear Pro Hac Vice of JAREN JANGHORBANI; granting 10 Motion to Appear Pro Hac Vice of JOSHUA KAYE; and granting 11 Motion to Appear Pro Hac Vice of WARREN STRAMIELLO as co−counsel for Southern Equality, Jocelyn Pritchett, Andrea Sanders and Carla Webb. Signed by Magistrate Judge Linda R. Anderson on 10/21/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 10/21/2014)
Set Hearing: Telephone Status Conference set for 10/22/2014 at 9:00 AM before District Judge Carlton W. Reeves. CALL−IN TELEPHONE NO.: (601) 608−3977. (JS) (Entered: 10/21/2014)
12 NOTICE of Appearance by Pieter Teeuwissen on behalf of Barbara Dunn (Teeuwissen, Pieter) (Entered: 10/21/2014)
13 NOTICE of Appearance by Dianne Herman Ellis on behalf of All Plaintiffs (Ellis, Dianne) (Entered: 10/21/2014)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Status Conference re: 4 MOTION for Preliminary Injunction held on 10/22/2014. Participants: Robert McDuff, Roberta Kaplan and Sibyl Byrd for Plaintiffs; Harold Pizzetta, Justin Matheny and Pieter Teeuwissen for the State and County Defendants. State and County Defendants shall file Responses to the motion by 11/10/2014; Plaintiffs may file any Replies by 11/11/2014. Hearing Set as to 4 MOTION for Preliminary Injunction on 11/12/2014 at 9:00 AM in Courtroom 5B (Jackson) before District Judge Carlton W. Reeves. (JS) (Entered: 10/22/2014)
14 NOTICE of Appearance by Rita Nahlik Silin on behalf of All Plaintiffs (Silin, Rita) (Entered: 10/22/2014)
15 SUMMONS Returned Executed by Campaign for Southern Equality, Rebecca Bickett, Jocelyn Pritchett, Carla Webb, Andrea Sanders Barbara Dunn served on 10/20/2014, answer due 11/10/2014. (McDuff, Robert) (Entered: 10/24/2014)
16 SUMMONS Returned Executed by Campaign for Southern Equality, Rebecca Bickett, Jocelyn Pritchett, Carla Webb, Andrea Sanders Jim Hood served on 10/20/2014, answer due 11/10/2014. (McDuff, Robert) (Entered: 10/24/2014)
17 SUMMONS Returned Executed by Campaign for Southern Equality, Rebecca Bickett, Jocelyn Pritchett, Carla Webb, Andrea Sanders Phil Bryant served on 10/20/2014, answer due 11/10/2014. (McDuff, Robert) (Entered: 10/24/2014)
18 MOTION for Diane E. Walton to Appear Pro Hac Vice by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit Ex−A Certificate of Good Standing)(McDuff, Robert) (Entered: 11/05/2014)
Pro Hac Vice fee paid for Diane E. Walton receipt number 0538−2814039 $ 100 (McDuff, Robert) (Entered: 11/05/2014)
19 NOTICE of Appearance by Sibyl C. Byrd on behalf of Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Byrd, Sibyl) (Entered: 11/06/2014)
TEXT−ONLY ORDER granting 18 Motion to Appear Pro Hac Vice of DIANE E. WALTON as co−counsel for Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders and Carla Webb. Signed by Magistrate Judge Linda R. Anderson on 11/7/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 11/07/2014)
20 ANSWER to 1 Complaint, by Phil Bryant, Jim Hood.(Matheny, Justin) (Entered: 11/10/2014)

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 10 of 14

11/10/2014 11/10/2014 11/10/2014 11/10/2014 11/10/2014 11/10/2014 11/10/2014 11/11/2014 11/12/2014
11/17/2014
11/25/2014 11/26/2014 11/26/2014

21 RESPONSE in Opposition re 4 MOTION for Preliminary Injunction filed by Phil Bryant, Jim Hood (Attachments: # 1 Exhibit 1 − Order in Walker v. Mississippi; No. 3:04cv140−LS (Apr. 11, 2006), # 2 Exhibit 2 − Order in Walker v. Mississippi; No. 3:04cv140−LS (July 25, 2006))(Matheny, Justin) (Entered: 11/10/2014)
22 MEMORANDUM IN SUPPORT re 21 Response in Opposition to Motion, filed by Phil Bryant, Jim Hood (Matheny, Justin) (Entered: 11/10/2014)
23 MOTION Contingent Motion for Stay Pending Appeal by Phil Bryant, Jim Hood (Barnes − Government, Paul) (Entered: 11/10/2014)
24 MEMORANDUM IN SUPPORT re 23 MOTION Contingent Motion for Stay Pending Appeal filed by Phil Bryant, Jim Hood (Barnes − Government, Paul) (Entered: 11/10/2014)
25 REPLY to Response to Motion re 4 MOTION for Preliminary Injunction filed by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Kaplan − PHV, Roberta) (Entered: 11/10/2014)
26 RESPONSE to Motion re 4 MOTION for Preliminary Injunction filed by Barbara Dunn (Teeuwissen, Pieter) (Entered: 11/10/2014)
27 MEMORANDUM IN SUPPORT re 26 Response to Motion of Plaintiffs for Declaratory and Injunctive Relief filed by Barbara Dunn (Teeuwissen, Pieter) (Entered: 11/10/2014)
28 RESPONSE in Opposition re 23 MOTION Contingent Motion for Stay Pending Appeal filed by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Kaplan − PHV, Roberta) (Entered: 11/11/2014)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Motion Hearing held on 11/12/2014 re 4 MOTION for Preliminary Injunction filed by Andrea Sanders, Carla Webb, Campaign for Southern Equality, Jocelyn Pritchett and Rebecca Bickett; and 23 MOTION Contingent Motion for Stay Pending Appeal filed by Jim Hood and Phil Bryant. Appearances: Roberta A. Kaplan, Joshua D. Kaye, Robert B. McDuff, Diane E. Walton, Dianne H. Ellis and Sibyl C. Byrd for Plaintiffs; and Justin L. Matheny, Paul E. Barnes and Pieter Teeuwissen for Defendants; with special counsel, Anthony Simon. The Court heard arguments on the issues, and shall rule at a later date. Court Reporter/Transcriber Gina Morris, Telephone Number : 601−608−4187. (JS) (Entered: 11/12/2014)
29 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 11−12−2014 before Judge Carlton W. Reeves. Court Reporter Gina Morris, Telephone Number : 601−608−4187. NOTICE RE : REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no Notice is filed, the transcript will be made electronically available to the public without redaction after 90 calendar days. The policy is located on the court website at www.mssd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. Redaction Request due 12/8/2014. Redacted Transcript Deadline set for 12/18/2014. Release of Transcript Restriction set for 2/16/2015. (GM) (Entered: 11/17/2014)
30 ORDER granting 4 Motion for Preliminary Injunction; granting in part and denying in part 23 Motion to Stay Pending Appeal. This Preliminary Injunction is stayed for 14 days. Signed by District Judge Carlton W. Reeves on 11/25/2014. (kf) (Entered: 11/25/2014)
31 NOTICE OF APPEAL as to 30 Order on Motion for Miscellaneous Relief, Order on Motion for Preliminary Injunction by Phil Bryant, Jim Hood. Filing fee $ 505, receipt number 0538−2828718. Appeal Record due by 12/9/2014 (Barnes − Government, Paul) (Entered: 11/26/2014)
Appeal Remark re 31 Notice of Appeal: Transcript Order Form attorney Paul Barnes. (cwl) (Entered: 11/26/2014)

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 11 of 14

12/02/2014 12/05/2014 06/26/2015 07/01/2015
07/01/2015 07/02/2015 07/02/2015 07/02/2015 07/02/2015 05/10/2016 05/10/2016 05/24/2016
05/24/2016 05/24/2016 05/24/2016

Certified and Transmitted Record on Appeal electronically to US Court of Appeals in re 31 Notice of Appeal. (ND) (Entered: 12/02/2014)
32 TRANSCRIPT REQUEST by Jim Hood for proceedings held on 11/12/14 before Judge Reeves. (Attachments: # 1 Cover Letter)(ND) (Entered: 12/05/2014)
33 NOTICE / Letter enclosing 5th Circuit Motion by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Kaplan − PHV, Roberta) (Entered: 06/26/2015)
34 PERMANENT INJUNCTION. IT IS HEREBY ORDERED that the State of Mississippi 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). Signed by District Judge Carlton W. Reeves on 07/01/2015. (AC) (Entered: 07/01/2015)
35 FINAL JUDGMENT in favor of Campaign for Southern Equality, Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla Webb, against Phil Bryant, Jim Hood, and Barbara Dunn, all in their official capacities. Signed by District Judge Carlton W. Reeves on 07/01/2015. (AC) (Entered: 07/01/2015)
36 Copy of Opinion − USCA in re 31 Notice of Appeal. (Attachments: # 1 Cover Letter)(ND) (Entered: 07/02/2015)
37 CERTIFIED COPY OF USCA JUDGMENT/MANDATE as to 31 Notice of Appeal filed by Jim Hood and Phil Bryant. (Attachments: # 1 Cover Letter)(ND) (Entered: 07/02/2015)
38 NOTICE / Plaintiffs' Letter to Judge Reeves by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb re 34 Permanent Injunction, (Attachments: # 1 [Proposed] Order Clarifying Application of Permanent Injunction)(Kaplan − PHV, Roberta) (Entered: 07/02/2015)
DOCKET ANNOTATION as to # 38 . Proposed orders are not to be electronically filed as a separate pleading or as an attachment to a pleading, but instead are to be provided to chambers by e−mail (Court's Administrative Procedures for Electronic Case Filing Sec.5.B.). (ND) (Entered: 07/02/2015)
39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Kaplan − PHV, Roberta) (Entered: 05/10/2016)
DOCKET ANNOTATION as to # 39 . L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (ND) (Entered: 05/10/2016)
40 RESPONSE in Opposition re 39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction filed by Phil Bryant, Jim Hood (Attachments: # 1 Exhibit 1−July 3, 2015 10:35AM Email, # 2 Exhibit 2−July 3, 2015 Email, # 3 Exhibit 3−July 7, 2015 10:00 AM Email, # 4 Exhibit 4−July7, 2015 10:33 AM Email, # 5 Exhibit 5−July 10, 2015 6:02 AM Email, # 6 Exhibit 6− Mississippi House Bill1523, Regular Session 2016, # 7 Exhibit 7−April 28, 2016 Letter and Exhibits, # 8 Exhibit 8−May 4, 2016 Letter)(Matheny, Justin) (Entered: 05/24/2016)
41 MEMORANDUM IN SUPPORT re 40 Response in Opposition to Motion,, to Reopen Judgment, File Supplemental Pleading and Modify the Permanent Injunction filed by Phil Bryant, Jim Hood (Matheny, Justin) (Entered: 05/24/2016)
42 NOTICE of Appearance by Tommy D. Goodwin − State Gov on behalf of Phil Bryant (Goodwin − State Gov, Tommy) (Entered: 05/24/2016)
43 Joinder in Document by Phil Bryant to 40 Response in Opposition to Motion,, filed by Jim Hood, Phil Bryant, 41 Memorandum in Support filed by Jim Hood, Phil Bryant (Goodwin − State Gov, Tommy) (Entered: 05/24/2016)

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 12 of 14

05/27/2016
05/31/2016 05/31/2016 06/01/2016 06/06/2016 06/08/2016 06/08/2016 06/08/2016 06/10/2016 06/10/2016 06/13/2016 06/14/2016 06/15/2016 06/20/2016

44 Unopposed MOTION for Extension of Time to File Response/Reply as to 39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Kaplan − PHV, Roberta) (Entered: 05/27/2016)
TEXT−ONLY ORDER granting 44 Unopposed Motion for Extension of Time to File Reply re 39 MOTION to Reopen Judgment. Reply due on or before 6/3/2016. Signed by District Judge Carlton W. Reeves on 5/31/2016. NO FURTHER WRITTEN ORDER SHALL ISSUE. (AC) (Entered: 05/31/2016)
45 NOTICE of Appearance by Alysson Leigh Mills on behalf of All Plaintiffs (Mills, Alysson) (Entered: 05/31/2016)
46 REPLY to Response to Motion re 39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction filed by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Kaplan − PHV, Roberta) (Entered: 06/01/2016)
47 ORDER requesting supplemental briefing re 39 Motion to Reopen Judgment. Briefs due Wednesday by 4:00. Signed by District Judge Carlton W. Reeves on 6/6/2016. (AC) (Entered: 06/06/2016)
48 MEMORANDUM in Support re 39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction / Supplemental Memorandum filed by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Kaplan − PHV, Roberta) (Entered: 06/08/2016)
49 Response to Order re 47 ORDER requesting supplemental briefing re 39 Motion to Reopen Judgment. Briefs due Wednesday by 4:00. Signed by District Judge Carlton W. Reeves on 6/6/2016. (AC) filed by Jim Hood (Matheny, Justin) (Entered: 06/08/2016)
50 Joinder in Document by Phil Bryant to 49 Response to Order filed by Jim Hood (Goodwin − State Gov, Tommy) (Entered: 06/08/2016)
Set/Reset Hearings: Telephonic Status Conference set for 6/10/2016 at 12:00 PM before District Judge Carlton W. Reeves. Only one attorney per side need participate. (AC) (Entered: 06/10/2016)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Status Conference held on 6/10/2016. Participants: Roberta A. Kaplan, Robert B. McDuff, Justin L. Matheny, Paul E. Barnes and Tommy D. Goodwin. (JS) (Entered: 06/14/2016)
Set Hearing as to 39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction. Motion Hearing set for 6/20/2016 at 9:30 AM in Courtroom 5B (Jackson Federal Courthouse) before District Judge Carlton W. Reeves. (AC) (Entered: 06/13/2016)
Set Hearing: Telephonic Status Conference set for 6/15/2016 at 11:00 AM before District Judge Carlton W. Reeves. (AC) (Entered: 06/14/2016)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Status Conference held on 6/15/2016. Participants: Robert B. McDuff, Roberta A. Kaplan, Alysson L. Mills, Justin L. Matheny, Paul E. Barnes and Tommy D. Goodwin. (JS) (Entered: 06/20/2016)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Motion Hearing held on 6/20/2016 re 39 MOTION to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction filed by Andrea Sanders, Carla Webb, Campaign for Southern Equality, Jocelyn Pritchett and Rebecca Bickett. Appearances: Roberta Kaplan, Joshua D. Kaye, Robert B. McDuff, Alysson L. Mills, Justin L. Matheny and Tommy D. Goodwin; with Zachery Dietery and Jacob Taber who have not yet entered appearances. Court heard arguments on the issues and reserved ruling for a later date. Court Reporter/Transcriber Gina Morris, Telephone Number : 601−608−4187. (JS) (Entered: 06/21/2016)

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 13 of 14

06/21/2016
06/27/2016 08/22/2016 09/01/2016 10/02/2017 10/16/2017 10/25/2017 10/25/2017 10/27/2017 10/30/2017 11/13/2017 11/13/2017 12/04/2017 12/04/2017 12/06/2017

51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−20−2016 before Judge Carlton W. Reeves. Court Reporter/Transcriber Gina Morris, Telephone Number : 601−608−4187. NOTICE RE : REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no Notice is filed, the transcript will be made electronically available to the public without redaction after 90 calendar days. The policy is located on the court website at www.mssd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/12/2016. Redacted Transcript Deadline set for 7/22/2016. Release of Transcript Restriction set for 9/19/2016. (GM) (Entered: 06/21/2016)
52 ORDER granting in part and denying in part 39 Motion to Reopen Judgment, File Supplemental Pleading, and Modify the Permanent Injunction. The Clerk of Court shall reopen this case. Signed by District Judge Carlton W. Reeves on 6/27/2016. (AC) (Entered: 06/27/2016)
Set/Reset Hearings: Telephonic Status Conference set for 9/19/2016 at 1:30 PM central before District Judge Carlton W. Reeves. Court staff will circulate dial−in information prior to call. (AC) (Entered: 08/22/2016)
53 AGREED ORDER STAYING CASE. The scheduled status conference is canceled. Signed by District Judge Carlton W. Reeves on 9/1/2016. (AC) (Entered: 09/01/2016)
Set/Reset Hearings: Telephonic Status Conference set for 10/16/2017 at 10:00 AM before District Judge Carlton W. Reeves. Dial−in number to follow. (AC) (Entered: 10/02/2017)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Status Conference held on 10/16/2017. Participants: Jaren Janghorbani, Joshua D. Kaye, Roberta A. Kaplan, Alysson L. Mills, Tommy D. Goodwin, Justin L. Matheny and Paul E. Barnes. (JS) (Entered: 10/16/2017)
54 STATUS REPORT Regarding Proposed Agreed Order to Lift Stay by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Proposed Order)(Kaplan − PHV, Roberta) (Entered: 10/25/2017)
DOCKET ANNOTATION as to # 54 . Proposed orders are not to be electronically filed as a separate pleading or as an attachment to a pleading, but instead are to be provided to chambers by e−mail (Court's Administrative Procedures for Electronic Case Filing Sec.5.B.). (ND) (Entered: 10/25/2017)
55 AGREED ORDER LIFTING STAY. Signed by District Judge Carlton W. Reeves on 10/27/2017. (AC) (Entered: 10/27/2017)
56 NOTICE of Service of First Set of Interrogatories by Campaign for Southern Equality (Mills, Alysson) (Entered: 10/30/2017)
57 NOTICE of Service of Response to Interrogatories by Jim Hood (Matheny−State Gov, Justin) (Entered: 11/13/2017)
58 NOTICE of Service of Response to Interrogatories by Phil Bryant (Goodwin−State Gov, Tommy) (Entered: 11/13/2017)
59 NOTICE OF INTENT TO SERVE SUBPOENA by Rebecca Bickett, Campaign for Southern Equality, Jocelyn Pritchett, Andrea Sanders, Carla Webb (Attachments: # 1 Exhibit A)(Mills, Alysson) (Entered: 12/04/2017)
DOCKET ANNOTATION as to # 59 . L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (ND) (Entered: 12/04/2017)
60 Subpoena Returned Executed as to Junie O'Neal. (Mills, Alysson) (Entered: 12/06/2017)

Case: 3:14-cv-818 As of: 05/20/2020 12:55 PM CDT 14 of 14
01/03/2019 61 ORDER Directing Clerk to administratively close Case. Signed by District Judge Carlton W. Reeves on 1/3/19 (MGB) (Entered: 01/03/2019)