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Out Attorney Roberta Kaplan Just Destroyed Another Antigay Marriage Law

Roberta Kaplan and Mississippi Governor Phil Bryant

Out attorney Roberta Kaplan once again knocked down a law that prevents same-sex couples from enjoying the rights and privileges of legal marriage.

A federal judge today ruled on a motion filed by Kaplan in May. It took issue with the specific provision of Mississippi’s so-called religious liberty law, House Bill 1523, that would have allowed county clerks and registrars to refuse to sign marriage licenses for same-sex couples.

U.S. District Judge Carlton Reeves saw through the “freedom of religion” facade used by conservative politicians in Mississippi to pass the sweeping anti-LGBT law. Reeves, who in 2014 found Mississippi’s ban on same-sex marriage unconstitutional (in a case filed by Kaplan), explained that HB 1523 was a blatant attempt to sidestep the Supreme Court’s pro-marriage equality ruling handed down in June 2015, known as Obergefell v. Hodges

“Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit — by advocating for a constitutional amendment to overturn the decision, for example,” wrote Reeves. “But the marriage license issue will not be adjudicated anew after every legislative session.”

The 16-page ruling grants Kaplan’s request to reopen the 2014 case that ultimately struck down Mississippi’s statutory ban on marriage equality, agreeing with the out attorney that HB 1523 “may in fact amend Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell.” 

Essentially, the judge agreed with Kaplan that the new law created a novel way for public officials to discriminate against same-sex couples, in direct conflict not only with Obergefell, but also with Reeves’s own decision in 2014, when he found the state’s ban on legal same-sex marriage to be unconstitutional. Along with that 2014 ruling, Reeves had issued an injunction, barring state officials from enforcing the marriage ban. In today’s decision, Reeves scolded state lawmakers and attorneys for their “carefully calculated campaign of delay … and masterly inactivity,” ultimately concluding that state officials must make clear to clerks and registrars that the permanent injunction remains in force. 

BuzzFeed News legal editor Chris Geidner notes that there had been some confusion about whether all clerks statewide had been informed that the marriage ban was unenforceable, prompting the judge to order all parties “to confer about how to provide clerks with actual notice of the permanent injunction.” 

Kaplan, a partner at New York-based law firm Paul, Weiss, represented lesbian widow Edie Windsor in the 2013 Supreme Court case that struck down the so-called Defense of Marriage Act. After securing that landmark victory — which helped pave the way for legal marriage equality nationwide — Kaplan turned her attention to Mississippi. First she effectively litigated the aforementioned marriage equality challenge, then she dismantled the state’s ban on adoption by same-sex couples. Mississippi was the last state to have such a ban on the books, and Kaplan persuaded a federal judge that barring LGBT people from adopting children was a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The ban was struck down in April

Incidentally, the Equal Protection Clause has been a benchmark of Kaplan’s pro-LGBT work, and was central to today’s victory. But the Fourteenth Amendment isn’t necessarily the answer to ending all anti-LGBT discrimination, Kaplan told The Advocate earlier this month.

When it comes to claims of religious liberty, in particular, she contends that each state’s so-called religious freedom laws will have to be challenged individually, setting up a similarly drawn-out legal battle like the one seen to secure marriage equality nationwide. 

And it should be noted that although Reeves struck down the marriage license recusal provision of the Mississippi law, which also bars the state from recognizing the authentic gender of trans people, the rest takes effect July 1.

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