Restrictions
In 1978, a same-sex couple was refused a marriage license. In 1994, another same-sex couple, Todd Emerson and Luis Cintron, applied for a license in Ocean Springs but were rejected. [4] Consequently, Governor Kirk Fordice issued an executive order banning same-sex marriage in the state on August 24, 1996. [5] On January 10, 1997, the Mississippi State Senate passed a bill banning same-sex marriage. The House of Representatives passed the bill on February 5, 1997, and Governor Kirk Fordice signed it into law on February 12. It went into effect that same day. [6]
On March 1, 2004, the House of Representatives, by a 97 to 17 vote, approved Amendment 1, a constitutional amendment defining marriage as "only between a man and a woman" and denying recognition to same-sex marriages from other jurisdictions. The Mississippi Senate passed it on April 7 by a 51 to 0 vote, and voters approved it on November 4 with 86% of the vote. [7] [8] [9]
Lawsuits
Czekala-Chatham v. Melancon
A lesbian couple, Lauren Beth Czekala-Chatham and Dana Ann Melancon, residents of Mississippi who had married in California in 2008, asked the state to recognize their marriage in order to allow them to divorce. The lawsuit was filed in DeSoto County, in Mississippi's Third District Chancery Court, in September 2013. The Mississippi Attorney General's office intervened in their divorce suit, Czekala-Chatham v. Melancon. The plaintiffs contended that "there can be no legitimate state purpose in allowing bigamous or incestuous couples to divorce and not allowing the same remedy to same-sex couples". [10] The Third District Chancery Court dismissed their case for lack of jurisdiction. [11] On appeal, the Mississippi Supreme Court took jurisdiction and allowed Governor Phil Bryant, represented by the Alliance Defending Freedom, to intervene to support the state's position. [12] That court heard oral arguments on January 21, 2015. [13] On February 24, the court, after noting that all parties agreed proceedings should be stayed pending action by the U.S. Supreme Court in related cases, asked for additional briefs. Six justices supported that request, one objected that nothing would be gained, and two objected that it was only "a delay tactic" and the court should find the state's ban on same-sex marriage unconstitutional. [14]
On July 2, 2015, Attorney General Jim Hood, citing the previous week's decision by the U.S. Supreme Court in Obergefell, asked the court to grant the divorce he had previously opposed. [15] On November 5, 2015, in a 5–4 ruling, the Mississippi Supreme Court remanded the case to the Third District Chancery Court in light of Obergefell. The court ruled that the plaintiffs' requested relief, which the Attorney General had already agreed, was consistent with Obergefell and thus ruled in favor of Czekala-Chatham. Forming the five-justice majority were Justices Bill Waller Jr., Michael Randolph, Ann Hannaford Lamar, David Chandler, and Randy Pierce. Justices Josiah Coleman and Jess Dickinson each joined each other's dissents, disagreeing with Obergefell and questioning the decision's constitutional authority. Justice Pierce, joined by Chandler, wrote a separate concurrence accusing Justices Coleman and Dickinson of violating their oath of office by refusing to follow a ruling of the U.S. Supreme Court. Justice Leslie King, joined by James Kitchens, dissented, though they agreed Czekala-Chatham received the proper relief. Justice King wrote that, "While I am satisfied that the right result for Czekala-Chatham has been reached, I believe this Court does a great disservice to the jurisprudence of this State by reaching such result in an order, rather than issuing a precedential opinion. Consequently, I object to issuing this decision via order." [16]
On December 1, 2015, Chancellor Mitchell Lundy, Jr. granted the divorce. He apologized to Czekala-Chatham for denying the original divorce in December 2013, but explained that he felt he had no other choice due to Mississippi's refusal to recognize their marriage at the time.
Campaign for Southern Equality v. Bryant
The Campaign for Southern Equality and two lesbian couples filed suit, in Campaign for Southern Equality v. Bryant, in the U.S. District Court for the Southern District of Mississippi on October 20, 2014, challenging Mississippi's statutory and constitutional denial of marriage rights to same-sex couples. Each of the couples was raising two children and one couple had previously married in Maine. Their principal attorney was Roberta Kaplan, who had argued United States v. Windsor before the U.S. Supreme Court. They named as defendants Governor Bryant and Attorney General Hood, and the Hinds County circuit clerk who denied a marriage license to one of the plaintiff couples. [17] [18] U.S. District Court Judge Carlton Reeves held a hearing on motions for summary judgment on November 12. [19] He ruled for the plaintiffs on November 25, finding that the state's ban did not survive rational basis review. Although Fifth Circuit precedent prevented him from using a stricter standard when considering discrimination on the basis of sexual orientation, he argued at length that the proper standard to use would be "heightened scrutiny" and he suggested the Fifth Circuit consider revisiting the question. He stayed his ruling for 14 days to allow the defendants to request a longer stay from the Fifth Circuit Court of Appeals or the U.S. Supreme Court. [20] [21] Reeves ruled:
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. [...] 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." Tradition was the basis for defending Texas's sodomy law; part of it too was rendered unenforceable. 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)." 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.
The state defendants asked the Fifth Circuit for a stay pending appeal the next day. [22] This stay was immediately opposed by the plaintiffs, [23] who also filed a motion to expedite the appeal to coincide with hearings for a Texas case, De Leon v. Perry , and a Louisiana case, Robicheaux v. George . [24] On December 4, the Fifth Circuit agreed to expedite the case, but not to consolidate oral arguments with its other same-sex marriage cases. [25] It issued a stay pending appeal the same day. [26] The Fifth Circuit heard oral arguments on January 9, 2015, before Judges Patrick Higginbotham, Jerry Edwin Smith, and James Graves Jr. [27]
Obergefell v. Hodges
On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the Due Process and Equal Protection clauses of the Fourteenth Amendment. Following the decision, Attorney General Hood said: "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 same-sex marriage licenses, when the 5th Circuit lifts the stay", allowing Judge Reeves' order to take effect. [28] Governor Bryant and Lieutenant Governor Tate Reeves condemned the ruling. State Representative Andy Gipson, chair of the Mississippi House Judiciary Committee, suggested the state should consider having "no marriage certificate sponsored by the state". [29] The first same-sex couple to marry in Mississippi were Amber Hamilton and Annice Smith in Hattiesburg on June 26, just hours before Attorney General Hood instructed county clerks to wait for the Fifth Circuit to lift its stay. [30]
The plaintiffs filed a motion the same day asking the Fifth Circuit to lift its stay of that order. Attorney General Hood did not oppose that motion, but Governor Bryant did. [31] On June 29, Hood issued an email to county clerks to clarify his earlier statement which, he wrote, "seems to have been misinterpreted as prohibiting Circuit Clerks from issuing marriage licenses to same-sex couples. The statement was merely meant to explain that an order of the Fifth Circuit would be necessary to lift the stay." He wrote: "Obergefell is the law of the land. If a clerk has issued or decides to issue a marriage license to a same-sex couple, there will be no adverse action taken by the Attorney General against that circuit clerk on behalf of the State.... On the other hand, a clerk who refuses to issue a marriage license to a same-sex couple could be sued by the denied couple and may face liability." [32] On July 1, the Fifth Circuit lifted its stay and returned the Campaign for Southern Equality case to the district court, [33] where Judge Reeves ordered Mississippi and its agents to cease enforcing the state's constitutional and statutory restrictions on same-sex marriage. [34] The last counties in Mississippi to refuse to issue marriage licenses, DeSoto, Jasper, Jones, Newton, Pontotoc, Simpson and Yalobusha counties, began issuing licenses on July 2, 2015. [1] [2]
Developments after legalization
On June 27, 2016, a federal judge ruled that county clerks in Mississippi may not use their religious beliefs to deny marriage licenses to same-sex couples. U.S. District Judge Carlton Reeves ruled that the recusals on religious grounds granted by the Religious Liberty Accommodations Act violated the Supreme Court's ruling in Obergefell. [35] [36] The decision was overturned on appeal by the Fifth Circuit on June 23, 2017, in Barber v. Bryant, on the grounds that the plaintiffs in this case lacked standing. [37]
In April 2018, the Mississippi Supreme Court ruled in Strickland v. Day that married same-sex couples must be granted the same parental rights as married opposite-sex couples. The court overturned a lower court's decision that denied legal parentage to Strickland, a non-biological lesbian mother who had raised a child with her ex-wife. The Supreme Court ordered that Strickland be listed as a parent on the child's birth certificate and remanded the case to the trial court to determine matters of child support and custody. [38]
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