/HB 1523’s clerks rule attacked in court

HB 1523’s clerks rule attacked in court

House Bill 1523 makes it mandatory for any clerk who does not want to marry gay couples that he ensures his recusal doesn’t “impede” or delay the proceedings. The plaintiffs claim that this is impossible without the information being available to the couple before they attempt to wed. Roberta Kaplan (lead attorney for the Campaign for Southern Equality) said that one of the problems with the statute, which we discussed a lot in court, is that gay couples in Mississippi won’t know, or have any way to find out if any clerks have done that. “And they don’t want to show up to a county clerk’s office with the flowers, the wedding dress, and their family only to discover that no one is available to marry them,” Justin Matheny, Mississippi Assistant Attorney General, said. No court clerk has attempted to omit from issuing gay licenses since the law was passed. He reminded the court that House Bill 1523’s “impede or delay” clause means that clerks have to take responsibility for ensuring gay couples are able to obtain a marriage license as quickly as possible. “Then they have to ensure that none of these terrible things happen.” Matheny stated that if they do not, they have probably violated federal law. “They’re also violating federal law because they can make the recusal,” Matheny said. But Kaplan replied that clerks who withdraw from issuing marriage licenses for gay couples were likely to be the least likely to help these couples get their licenses. It’s like the fox guarding a henhouse. This is a problem we already see. “We’ve seen it in Kim Davis,” Kaplan stated, referring to the Kentucky county clerk whose recusal made national headlines following the Obergefell-v. Hodges U.S. Supreme Court decision last summer. “That’s what they’re trying to avoid.” Judge Reeves will issue his decision in this case. House Bill 1523 was signed by Gov. Governor Phil Bryant signed House Bill 1523 in April. It goes into effect July 1. Anyone who rejects the services of gays, lesbians or transgender people because they believe in these beliefs is protected from lawsuits. Four separate legal challenges have been filed against the law since then. All of them were assigned to Judge Reeves. In May, the American Civil Liberties Union filed the first challenge to the law. It argues that the “religious liberty” law makes it more difficult for gay, lesbian, and transgender Mississippians to get a marriage license. Today, however, the court denied their request to a preliminary injunction. Another lawsuit, also filed by the Campaign for Southern Equality, seeks a preliminary injunction to stop House Bill 1523. Both claim that allowing only certain religious beliefs to be supported while disregarding others is a violation of the Establishment Clause, which forbids government from favoring any religion over the other. Judge Reeves decided to consolidate them for the hearing because of their similarities. The hearing will be held on Thursday and Friday. The Campaign for Southern Equality is not bringing a new suit to the case. This makes today’s challenge different from other cases. They are instead asking Judge Reeves for a reopening of their 2014 successful challenge to the state’s ban on gay marriage. Judge Reeves made that ruling, which was later upheld in Obergefell’s decision last summer, and ruled that neither state nor its officers can discriminate against gay couples who are trying to wed. Campaign for Southern Equality asked Judge Reeves for his prior ruling on House Bill 1523. This would invalidate the section of the law that allows county clerks not to issue marriage licenses. Even though each side debated the merits of the clerk recusal list being made public, Monday’s proceedings were still dominated by the ghosts of Thursday and Friday’s hearings. This raised questions about whether Judge Reeves had to make a decision in today’s lawsuit. The Equal Protection clause covers a larger section of House Bill 15.23. Therefore, if Judge Reeves issues an injunction based upon Thursday and Friday’s hearings, it would also apply Monday to the defendants. It is not the opposite. Matheny suggested Monday’s proceedings could be canceled, as a result. Matheny stated that when I was informed that I would be attending a hearing in the case, it occurred that none of the stuff we discuss today would take effect until July 1. Kaplan claimed that Monday’s injunction was necessary in order to protect gay couples from what she called a potentially “humiliating” experience. She cited other Mississippi gay rights legislation and said that it was likely that the decision would be appealed regardless of the outcome. This could result in a stay, which would allow the law to continue in effect. “I believe the hearings on Thursday and Friday are much more extensive than that. That’s undisputed. Kaplan stated that it really targets the entire statute, not just the subsection about clerks.” “And I hate to give more responsibility to a judge. It’s not something you want to be in as a lawyer. However, there will be appeals and you never know what is going on at the 5th Circuit (Court of Appeals). I hope he rules in both cases.”