July 1, 2015
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB, Plaintiffs-Appellees,
PHIL BRYANT, in His Official Capacity as Governor of the State of Mississippi; JIM HOOD, in His Official Capacity as Mississippi Attorney General, Defendants-Appellants
Appeal from the United States District Court for the Southern District of Mississippi.
For CAMPAIGN FOR SOUTHERN EQUALITY, Plaintiff - Appellee: Roberta Ann Kaplan, Andrew James Ehrlich, Jacob Harris Hupart, Jaren Elizabeth Janghorbani, Joshua David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY; Dale Allen Carpenter, University of Minnesota Law School, Minneapolis, MN; Robert Bruce McDuff, Esq., Jackson, MS; Diane Esther Walton, Esq., Walton Law Office, Asheville, NC.
For REBECCA BICKETT, ANDREA SANDERS, JOCELYN PRITCHETT, CARLA WEBB, Plaintiffs - Appellees: Roberta Ann Kaplan, Andrew James Ehrlich, Jacob Harris Hupart, Jaren Elizabeth Janghorbani, Joshua David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY; Dale Allen Carpenter, University of Minnesota Law School, Minneapolis, MN; Robert Bruce McDuff, Esq., Jackson, MS.
For PHIL BRYANT, in his Official Capacity as Governor of the State of Mississippi, Defendant - Appellant: Drew Landon Snyder, Office of the Governor for the State of Mississippi, Jackson, MS.
For JIM HOOD, in his Official Capacity as Mississippi Attorney General, Defendant - Appellant: Justin Lee Matheny, Esq., Paul Eldridge Barnes, Esq., Office of the Attorney General for the State of Mississippi, Jackson, MS.
For GENE ALDAY, PHILIP GUNN, WILLIAM T. ARNOLD, MARK BAKER, MANLEY BARTON, Amicus Curiae: Russell Latino, III, Esq., Ridgeland, MS.
For MARIA S. AGUIRRE, DOCTOR DOUGLAS W. ALLEN, DOCTOR ROBERT JOHN ARAUJO, DOCTOR URSULA C. BASSET, DOCTOR FRANCIS J. BECKWITH, Amicus Curiae: Gene C. Schaerr, Law Offices of Gene Schaerr, Washington, DC.
For GARY J. GATES, Amicus Curiae: Benjamin Gross Shatz, Manatt, Phelps & Phillips, L.L.P., Los Angeles, CA.
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit
The plaintiffs are two same-sex couples and an advocacy group that works to promote the interests of lesbian, gay, bisexual, and transgender persons. The couples seek to marry in Mississippi or to have their marriage in another state recognized in Mississippi. The plaintiffs sued the state defendants pursuant to 42 U.S.C. § 1983 seeking an injunction and a declaration that Article XIV, Section 263A of the Mississippi Constitution and Section 93-1-1(2) of the Mississippi Code violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
On November 25, 2014, the district court issued a preliminary injunction in favor of the plaintiffs. The court stayed its order for fourteen days; this court on December 4, 2014, stayed the district court's order pending appeal. The state appealed, and after full briefing, including participation by numerous amici curiae, this court heard expanded oral argument on January 9, 2015.
While this appeal was under submission, the Supreme Court decided Obergefell v. Hodges, No. 14-556, 135 S.Ct. 2584, 192 L.Ed.2d 609, (U.S. June 26, 2015). In summary, the Court declared that
the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds
that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson [, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972),] must be and now is overruled, and the State laws challenged by petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
" It follows that the Court must also hold--and it now does hold--that there is no lawful basis for a State to refuse to recognize a lawful samesex
marriage performed in another State on the ground of its same-sex character."
Having addressed fundamental rights under the Fourteenth Amendment, the Court, importantly, invoked the First Amendment, as well:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court. We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.
This court sought and promptly received letter advisories from plaintiffs and the state, asking their respective positions on the proper disposition in light of Obergefell. Because, as both sides now agree, the injunction appealed from is correct in light of Obergefell, the preliminary injunction is AFFIRMED. This matter is REMANDED for entry of judgment in favor of the plaintiffs. The court must act expeditiously on remand and should enter final judgment on the merits (exclusive of any collateral matters such as costs and attorney fees) by July 17, 2015, and earlier if reasonably possible. The stay entered by this court is VACATED.
The mandate shall issue forthwith.
This cause was considered on the record on appeal and was argued by counsel.
It is ordered and adjudged that the judgment of the District Court is affirmed in part and vacated in part, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.
IT IS FURTHER ORDERED that defendants-appellants pay to plaintiffs-appellees the costs on appeal to be taxed by the Clerk of this Court.