By Jordan Terry
It has been almost a year since marriage equality became the law of the land, ensuring that same-sex couples could marry in every state.
But in the year since the historic Obergefell decision by the U.S. Supreme Court, several state governments have taken it upon themselves to draft regressive legislation in an attempt to thwart the LGBTQ community’s newly granted equalities.
An example can be seen in Mississippi’s House Bill 1523. There is an eerie familiarity with the bill, signed by Governor Phil Bryant, almost exactly one year after the Obergefell decision. H.B. 1523 is a direct attack on the constitutional rights of Mississippi’s LGBTQ community, masked as an adjustment law used to protect personal religious beliefs. H.B. 1523 is set to go into effect on July 1st of this year. CSE is working with our Legal Team and partner groups to challenge the bill in court – with a goal of striking it down before it goes into effect.
While H.B. 1523 contains an array of discriminatory provisions, one section in particular directly challenges the Obergefell decision; by implementing a “religious freedoms” clause, the bill allows circuit court officers the ability to deny marriage licenses to same sex couples on the grounds of “sincerely held, religious beliefs.”
On Monday morning, Roberta Kaplan, lead counsel, appeared in federal court to request that U.S. District Judge Carlton Reeves re-open a 2015 case, Campaign for Southern Equality v Bryant, and update the permanent injunction to address the issue of recusals.
Kaplan argued that HB 1523’s vague language allowed and failure to establish a clear system for recusals not only subjects same-sex couples to humiliation but impedes the very process of receiving marriage licenses.
Assistant State Attorney Justin Matheny, representing the state, argued that under HB 1523, clerks will have a legal right to recuse themselves from issuing marriage licenses as long as the clerk ensures that there is no impediment to the process. If recused, the responsibility is passed down to the deputy clerk, and continues down the chain of command until a willing party agrees to participate. Matheny argued that this system would work organically and did not required clarification or monitoring.
For same-sex couples in Mississippi, this is only the first of many negative consequences caused by HB 1523. The bill’s inadequate enforcement provisions do not even ensure that county clerk offices will have a member on staff willing to assist LGBTQ couples. During Monday’s hearing, Judge Reeves raised a hypothetical situation in which no member of a county clerk’s office would be willing to participate. Matheny countered that, “this hypothetical situation hasn’t been a problem in the past year” and assumes that it would not become a problem in the future. The state did not offer any alternative plan for this situation, suggesting that it only be addressed if and when the issue arises.
Yet another fault in HB 1523 is that it does not establish any grace period or record of recusal. According to the bill county clerks can decide to recuse themselves at any time, but must contact the State Registrar prior to doing so. Kaplan explained that there isn’t any type of public forum established to inform the LGBTQ community whether their county clerk’s office is willing to issue licenses to same-sex couples. With no public information easily accessible or constantly updated, Matheny suggested that same-sex couples should be expected to contact the clerk’s office before visiting to confirm they will be serviced. However, the subjective “religious rights” clause allows clerks change their mind at any time, even after confirming a willingness to participate. CSE fears that this may lead to humiliating situations for same-sex couple, where there is no guarantee that they will be able to receive a license even after they have contacted the clerks office.
Kaplan explain that if HB 1523 goes into effect, same-sex couples will have no reasonable way of ascertaining where they can be served licenses, and where they will be turned away due to recusals. She asked that the state create a process wherein clerks who recuse themselves will be publicly listed.
The court is scheduled to hear from CSE and Barber v. Bryant on Thursday. CSE hopes to obtain a permanent injunction against HB 1523 before the bill’s July 1 initiation. Reeves has not announced a timeline for his decision in any of the current cases.
Time and time again discriminatory bills such as HB 1523 are harbored within “religious freedoms” headings. These laws are meant to circumnavigate federal law. Beliefs cannot take precedence over the constitutional rights of the public. State governments cannot decide to ignore Obergefell because the ideas of certain citizens are discordant to the established law. Governmental employees, assigned to assist the public, cannot treat minority groups as second-class citizens, especially under bigoted pretenses.
Throughout the procession, Kaplan compared HB 1523 to the “separate but equal” laws that once dominated Mississippi. Now in 2016, HB 1523 is applying these same methods to discriminate against Mississippi’s LGBTQ community. “HB 1523 clearly violates the fundamental principle of equality before the law” Kaplan explained in Monday’s hearing. “There cannot be Jim Crowe type marriage laws in Mississippi!”
