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Another Suit Takes Aim at Mississippi's Anti-LGBT Law

Roberta Kaplan

A second legal challenge to Mississippi’s sweeping anti-LGBT “religious liberty” law was filed in court today, this one targeting only one provision of the law.

Lawyers in the case that challenged the state’s ban on same-sex marriage are asking a federal court to reopen that case and let them add a supplemental complaint regarding the provision of House Bill 1523 that allows public employees to recuse themselves from issuing marriage licenses to same-sex couples if they have religious or moral objections to such marriages.

In the original case, the Campaign for Southern Equality and two same-sex couples sought to strike down Mississippi’s marriage ban. A federal trial court and an appeals court both found in their favor, but the appeals court put its ruling on hold until the U.S. Supreme Court ruled in Obergefell v. Hodges last June, making marriage equality the law of the nation, and then same-sex couples began marrying in the state.

But now, say the lawyers from that suit, Mississippi has put up another roadblock to same-sex couples’ marriages. “The statute that the State of Mississippi just enacted — HB 1523 — clearly violates the fundamental principle of equality before the law,” said lead counsel Roberta Kaplan, also the lawyer in the cases that brought down Mississippi's ban on adoption by same-sex couples and the federal Defense of Marriage Act, in a press release. “It authorizes, even encourages, discrimination against LGBT people in Mississippi, re-creating, only months after the Supreme Court clearly held it unconstitutional, another form of second-class citizenship for LGBT Mississippians. State officials cannot circumvent federal court injunctions and evade the Constitution by passing laws that seek to stigmatize LGBT people and segregate them from everyone else.”

In their motion filed today, the plaintiffs ask the U.S. District Court for the Southern District of Mississippi to amend its injunction against the marriage ban “to require that there truly will be no delay or impediment to the marriage of gay and lesbian couples in Mississippi by requiring state officials to provide the Campaign for Southern Equality and the Court with information concerning any proposed recusal and by creating a mechanism so that Plaintiffs’ constitutional right to marry can be enforced in federal court,” according to the press release.

“While HB 1523 states that ‘the authorization and licensing of any legally valid marriage [shall] not [be] impeded or delayed as a result of any recusal’ …  it leaves the manner of doing so completely up to the person who ‘recused’ him or herself, and provides no enforcement mechanism for making sure that there is no delay or impediment,” the motion says.

HB 1523, titled the Protecting Freedom of Conscience From Government Discrimination Act, was signed into law by Gov. Phil Bryant in April and is set to take effect July 1. It states that the government cannot penalize an individual (including public employees), organization, or business for acting according to the following “sincerely held religious beliefs or moral convictions” that “marriage is or should be recognized as the union of one man and one woman”; that “sexual relations are properly reserved to such a marriage”; and that “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” It therefore sanctions discrimination against LGBT individuals, same-sex couples, single parents, or anyone else who may violate such a belief, argue opponents.

A separate lawsuit challenging the entire act was filed Monday by an engaged same-sex couple represented by the American Civil Liberties Union of Mississippi. It was also filed in the U.S. District Court for the Southern District of Mississippi, and it contends that HB 1523 violates the U.S. Constitution’s promise of equal protection under the law. That suit seeks to prevent the law from taking effect. 

One of the plaintiffs in the motion filed today, Jocelyn Pritchett, told BuzzFeed that she and her family had “several sleepless nights over the decision” to reopen the case, but felt they had been “sucker-punched” by HB 1523. “To say that county clerks can choose not to issue us licenses but continue to issue licenses to straight couples in line behind us is incredibly unfair,” said Pritchett, who was an unsuccessful candidate for state auditor last November and would have been Mississippi’s first openly LGBT statewide official.

“Mississippi is not a place that goes quietly into change,” she continued. “Our marriage license may have claw marks all over it when we die but it will be no less valid. In short, we’re doing this because we can. Mississippi will not change without federal help, and our kids, our friends and our friends’ kids deserve nothing less than full equality under the law.”

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