Barber v. Bryant, CAUSE NO. 3:16-CV-417-CWR-LRA

• Decision Date: 30 June 2016
• Docket Number: CAUSE NO. 3:16-CV-417-CWR-LRA, CAUSE NO. 3:16-CV-442-CWR-LRA
• Citation: 193 F.Supp.3d 677
• Parties: Rims BARBER ; Carol Burnett; Joan Bailey; Katherine Elizabeth Day; Anthony Laine Boyette; Don Fortenberry; Susan Glisson; Derrick Johnson ; Dorothy C. Triplett; Renick Taylor; Brandixilyne Mangum-Dear; Susan Mangum; Joshua Generation Metropolitan Community Church; Campaign for Southern Equality; and Susan Hrostowski, Plaintiffs v. Phil BRYANT, Governor; Jim Hood, Attorney General; John Davis, Executive Director of the Mississippi Department of Human Services; and Judy Moulder, State Registrar of Vital Records, Defendants
• Court: U.S. District Court — Southern District of Mississippi

193 F.Supp.3d 677

Rims BARBER ; Carol Burnett; Joan Bailey; Katherine Elizabeth Day; Anthony Laine Boyette; Don Fortenberry; Susan Glisson; Derrick Johnson ; Dorothy C. Triplett; Renick Taylor; Brandixilyne Mangum-Dear; Susan Mangum; Joshua Generation Metropolitan Community Church; Campaign for Southern Equality; and Susan Hrostowski, Plaintiffs

v.Phil BRYANT, Governor; Jim Hood, Attorney General; John Davis, Executive Director of the Mississippi Department of Human Services; and Judy Moulder, State Registrar of Vital Records, Defendants

CAUSE NO. 3:16-CV-417-CWR-LRA

CAUSE NO. 3:16-CV-442-CWR-LRA

United States District Court, S.D. Mississippi, Northern Division .

Signed June 30, 2016

Robert B. McDuff, Jacob W. Howard, Sibyl C. Byrd, McDuff & Byrd, Beth L. Orlansky, Charles O. Lee, Jackson, MS, John C. Jopling, Joseph Reilly Morse, Biloxi, MS, for Plaintiffs.

Tommy D. Goodwin, Paul E. Barnes, Mississippi Attorney General's Office, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE

The plaintiffs filed these suits to enjoin a new state law, "House Bill 1523," before it goes into effect on July 1, 2016. They contend that the law violates the First and Fourteenth Amendments to the United States Constitution. The Attorney General's Office has entered its appearance to defend HB 1523. The parties briefed the relevant issues and presented evidence and argument at a joint hearing on June 23 and 24, 2016.

The United States Supreme Court has spoken clearly on the constitutional principles at stake. Under the Establishment Clause of the First Amendment, a state "may not aid, foster, or promote one religion or religious theory against another." Epperson v. Arkansas , 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). "When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides." McCreary Cnty., Kentucky v. ACLU of Kentucky , 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (citation omitted). Under the Equal Protection Clause of the Fourteenth Amendment, meanwhile, a state may not deprive lesbian and gay citizens of "the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Romer v. Evans , 517 U.S. 620, 630, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).

HB 1523 grants special rights to citizens who hold one of three "sincerely held religious beliefs or moral convictions" reflecting disapproval of lesbian, gay, transgender, and unmarried persons. Miss. Laws 2016, HB 1523 § 2 (eff. July 1, 2016). That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected—the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells "nonadherents that they are outsiders, not full members of the political community, and ... adherents that they are insiders, favored members of the political community." Santa Fe Indep. Sch. Dist. v. Doe , 530 U.S. 290, 309–10, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quotation marks and citation omitted). And the Equal Protection Clause is violated by HB 1523's authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.

"It is not within our constitutional tradition to enact laws of this sort." Romer , 517 U.S. at 633, 116 S.Ct. 1620. The plaintiffs' motions are granted and HB 1523 is preliminarily enjoined.

I. The Parties

A. Plaintiffs

The plaintiffs in this matter are 13 individuals and two organizations—Joshua Generation Metropolitan Community Church (JGMCC) and the Campaign for Southern Equality (CSE).

All of the individual plaintiffs are residents, citizens, and taxpayers of Mississippi who disagree with the beliefs protected by HB 1523. They fall into three broad and sometimes overlapping categories: (1) clergy and other religious officials whose religious beliefs are not reflected in HB 1523; (2) members of groups targeted by HB 1523; and (3) other citizens who, based on their religious or moral convictions, do not hold the beliefs HB 1523 protects.

The first group includes Rev. Dr. Rims Barber, Rev. Carol Burnett, Rev. Don Fortenberry, Brandiilyne Mangum-Dear, Susan Mangum, and Rev. Dr. Susan Hrostowski. Rev. Dr. Barber is an ordained minister in the Presbyterian church. Rev. Burnett is an ordained United Methodist minister. Rev. Fortenberry is an ordained United Methodist minister and the retired chaplain of Millsaps College. Mangum-Dear is the pastor at JGMCC, while Mangum is the director of worship at that church. Rev. Dr. Hrostowski is the vicar of St. Elizabeth's Episcopal Church in Collins, Mississippi, as well as an employee of the University of Southern Mississippi.

Katherine Elizabeth Day, Anthony (Tony) Laine Boyette, Dr. Susan Glisson, and Renick Taylor comprise the second group of plaintiffs.¹ Day is a transgender woman; Boyette is a transgender man. Dr. Glisson, an employee of the University of Mississippi, is unmarried and in a long-term sexual romantic relationship with an unmarried man. Taylor is a gay man who is engaged to his male partner. The couple plans to marry in the summer of 2017.

The third group of individual plaintiffs includes Joan Bailey, Derrick Johnson, and Dorothy Triplett. Bailey is a retired therapist whose practice was primarily devoted to lesbians. Johnson is the Executive Director of the Mississippi State Conference of the NAACP, and Triplett is a retired government employee and a longtime activist.

JGMCC is a ministry in Forrest County, Mississippi, whose members fall into all three categories. It "welcomes all people regardless of age, race, sexual orientation, gender identity, or social status." Docket No. 1, ¶ 16, in Cause No. 3:16-CV-417 [hereinafter Barber ]. In particular, the church sponsors "a community service ministry that promotes LGBT+ equality." Id. Approximately 90% of its members in Forrest County identify as LGBT. Transcript of Hearing on Motion for Preliminary Injunction at 168, Barber v. Bryant, No. 3:16-CV-417 (S.D. Miss. June 23, 2016) [hereinafter Tr. of June 23]. There are over 400 Metropolitan Community Churches worldwide. Id.

CSE is a non-profit organization that works "across the South to promote the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life." Docket No. 2-2, at 2, in Cause No. 3:16-CV-442 [hereinafter CSE IV ]. It is based in North Carolina but has worked in Mississippi since 2012. Id. CSE claims to advocate for Mississippians in all three categories of plaintiffs. Id. at 4.

B. Defendants

Governor Phil Bryant is sued in his official capacity as the chief executive of the State of Mississippi. State law charges him with the responsibility to "see that the laws are faithfully executed." Miss. Code Ann. § 7-1-5(c).

Attorney General Jim Hood is also sued in his official capacity. Among his powers and duties, he is required to "intervene and argue the constitutionality of any statute when notified of a challenge." Id. § 7-5-1; see In the Interest of R.G. , 632 So.2d 953, 955 (Miss.1994).

John Davis is the Executive Director of the Mississippi Department of Human Services. Under Mississippi Code § 43-1-2(5), he is tasked with implementing state laws protecting children. One of the offices under his purview, the Division of Family and Children's Services, is "responsible for the development, execution and provisions of services" regarding foster care, adoption, licensure, and other social services. Miss. Code Ann. § 43-1-51.²

Judy Moulder is the Mississippi State Registrar of Vital Records. She is responsible for "carry[ing] into effect the provisions of law relating to registration of marriages." Id. § 51-57-43. HB 1523 requires Moulder to collect and record recusal notices from persons authorized to issue marriage licenses who wish to not issue marriage licenses to certain couples due to a belief enumerated in HB 1523. HB 1523 § 3(8)(a).

II. Factual and Procedural History

A. Same-Sex Marriage

Because HB 1523 is a direct response to the Supreme Court's 2015 same-sex marriage ruling, it is necessary to discuss the background of that ruling.

This country had long debated whether lesbian and gay couples could join the institution of civil marriage. See, e.g. , Andrew Sullivan, Here Comes the Groom , The New Republic, Aug. 27, 1989. The debate played itself out on the local, state, and national levels via constitutional amendments, legislative enactments, ballot initiatives, and propositions.

In its most optimistic retelling, "[i]ndividuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views." Obergefell v. Hodges , ––– U.S. ––––, 135 S.Ct. 2584, 2627, 192 L.Ed.2d 609 (2015) (Scalia, J., dissenting). But see David Carter, Stonewall: The Riots that Sparked the Gay Revolution 109-10, 183-84 (2004) (describing the 1966 Compton's Cafeteria riots by transgender citizens in San Francisco, and the famous 1969 Stonewall riots in New York City). Less charitably, but also true, is the reality that every time lesbian and gay citizens moved one step closer to legal equality, voters and their representatives passed new laws to preserve the status quo.

In the 1990s, for example, Hawaii's same-sex marriage lawsuit inspired the federal Defense of Marriage Act (DOMA) and a wave of state-level "mini-DOMAs." Campaign for Southern Equality v. Bryant , 64 F.Supp.3d 906, 915 (S.D.Miss.2014) [hereinafter CSE I ]. Mississippi's politicians joined the movement by issuing an executive order and passing a law banning same-sex marriage. Id. It was not until 2013 that DOMA was struck down in part. United States v. Windsor ,...