Campaign for S. Equality v. Bryant, CAUSE NO. 3:14-CV-818-CWR-LRA

• Decision Date: 27 June 2016
• Docket Number: CAUSE NO. 3:14-CV-818-CWR-LRA
• Citation: 197 F.Supp.3d 905
• 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 Zack Wallace, in his Official Capacity as Hinds County Circuit Clerk, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

197 F.Supp.3d 905

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 Zack Wallace, in his 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 June 27, 2016

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

Justin L. Matheny, Tommy D. Goodwin, Paul E. Barnes, Mississippi Attorney General's Office, Jackson, MS, Pieter Teeuwissen, Pieter Teeuwissen, PLLC, Jackson, MS, for Defendants.

ORDER

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE

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.

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 , ––– U.S. ––––, 135 S.Ct. 2584, 2604, 192 L.Ed.2d 609 (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:

In light of the United States Supreme Court's decision in Obergefell v. Hodges , No. 14–556, ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609, 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.

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, 129 S.Ct. 2108, 173 L.Ed.2d 920 (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.

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...