Written by Don Byrd
As Howard Friedman at Religion Clause writes, federal judge Carlton Reeves “took the first step toward issuing an injunction” in a challenge to Mississippi’s controversial new law offering broad protections for those acting in accord with certain religious beliefs. The law is intended to protect, among others, county clerks who object on religious grounds to issuing marriage licenses to same-sex couples.
Judge Reeves issued an order to reopen Campaign for Southern Equality v. Bryant, a 2015 case that ultimately prohibited Mississippi from denying marriage licenses to same-sex couples, following the Supreme Court’s ruling in Obergefell. Plaintiffs in that case petitioned the judge to expand his injunction in light of the new Mississippi law (becoming one of the handful of lawsuits that are now challenging HB 1523) to clarify that it applies to all clerks across the state.
While Judge Reeves did not yet issue an injunction, he set the stage for doing so, by reopening the case and asking the parties to confer about “how to provide clerks with actual notice of the Permanent Injunction” in place.
He also had strong words for any state strategy designed to circumvent constitutional protections. Here is an excerpt from his order, issued earlier this week:
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.” 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.”
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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.
Some news outlets have over-reported what the judge actually did in this case. He did not rule any provision of HB 1523 unlawful or yet prohibit its enforcement. He did, however, move toward providing notice to clerks across the state that his previous injunction applies to them, regardless of the protections promised by the new state law.
Stay tuned.
