Campaign For S. Equality v. Bryant, Cause No. 3:14–CV–818–CWR–LRA.

• Decision Date: 25 November 2014
• Docket Number: Cause No. 3:14–CV–818–CWR–LRA.
• Parties: CAMPAIGN FOR SOUTHERN EQUALITY; Rebecca Bickett; Andrea Sanders ; Jocelyn Pritchett; and Carla Webb, Plaintiffs v. 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.
• Court: U.S. District Court — Southern District of Mississippi

64 F.Supp.3d 906

CAMPAIGN FOR SOUTHERN EQUALITY; Rebecca Bickett; Andrea Sanders ; Jocelyn Pritchett; and Carla Webb, Plaintiffs

v.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.

Cause No. 3:14–CV–818–CWR–LRA.

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

Signed Nov. 25, 2014.

Andrew J. Ehrlich–PHV, Jacob H. Hupart–PHV, Jaren Janghorbani–PHV, Joshua D. Kaye–PHV, Roberta A. Kaplan–PHV, Warren Stramiello–PHV, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, Diane E. Walton–PHV, Walton Law Office, Asheville, NC, Robert B. McDuff, Sibyl C. Byrd, McDuff & Byrd, Jackson, MS, Dianne Herman Ellis, Rita Nahlik Silin, Silin & Ellis, Ocean Springs, MS, for Plaintiffs.

Justin L. Matheny, Paul E. Barnes–Government, Mississippi Attorney General's Office, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

CARLTON W. REEVES, District Judge.

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.

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, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (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 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 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 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.

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, 196 Miss. 841, 18 So.2d 483, 486 (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, 852 P.2d 44 (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 (DOM...