U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Gay Marriage Comes to Mississippi -- Yes, That Mississippi

"If gay marriage can be legal in Mississippi, the whole country can feel hope."

True indeed, Jocelyn "Joce" Pritchett. Pritchett is one of the plaintiffs in the Mississippi gay marriage case, a federal case where a judge just struck down that state's same-sex marriage ban, reports The Associated Press.

The Mississippi decision is especially notable due to the people of Mississippi's opposition to same-sex marriage, an opinion that they have made "abundantly clear through every channel in which popular opinion can be voiced," U.S. District Court Judge Carlton Reeves in Jackson, Mississippi wrote.

Long, Clear, Vociferous Opposition

In the wake of a decision by the Supreme Court of Hawaii (recognizing that same-sex couples may have a right to marriage) and the federal Defense of Marriage Act, then-Governor Kirk Fordice issued an executive order banning gay marriage in 1996. The following year, the state legislature followed up with a bill, signed into law by Fordice.

In 2003, the U.S. Supreme Court issued its landmark Lawrence decision and the Massachusetts Supreme Court held that its own ban on same-sex marriage was unconstitutional. Mississippi, fearful of the possibility of same-sex marriage coming to their own state, passed a constitutional amendment defining marriage as a heterosexual institution and withholding recognition of otherwise legal out-of-state same-sex unions. The 2004 ban passed by an overwhelming eighty-six percent of the vote.

Objectively Answered Questions

Judge Reeves opened his explanation of his decision with a list of questions that he said were determinative of the case:

  • Can gay and lesbian citizens love?
  • Can gay and lesbian citizens have long-lasting and committed relationships?
  • Can gay and lesbian citizens love and care for children?
  • Can gay and lesbian citizens provide what is best for their children?
  • Can gay and lesbian citizens help make their children good and productive citizens?
  • Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?
  • Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice?

The answer, as you might expect, was affirmative to all of the questions.

"Gay and lesbian citizens cannot be subjected to such second-class citizenship," he concluded. "Mississippi's same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment."

Baker Means Nothing

As for the oft-offered legal arguments, specifically the Baker v. Nelson one-liner, Judge Reeves made three points about its irrelevance. First, the Second Circuit in Windsor set it aside as "lack[ing] resonance." On appeal to SCOTUS, not a single judge, in the majority or dissent, made reference to it.

Second, only one appeals court to date has held that Baker means anything -- the Sixth Circuit, in its circuit-splitting decision. Every other appeals court to reach the issue, as well as dozens of other courts, have agreed with the Second Circuit's take.

Finally, in the last couple of months alone, the Supreme Court has refused to step in and block same-sex marriage in (deep breath): Idaho, Indiana, Nevada, Oklahoma, Utah, Virginia, Wisconsin, Kansas, and South Carolina. Many of these states cited Baker. The Court's refusal to take those cases doesn't in-and-of-itself mean anything from a precedential standpoint, but it does add to the overwhelming cloud of doubt hanging over the Baker order.

Stay and Appeal

Judge Reeves ordered a 14-day stay on his opinion, along with an order to continue to restrict marriage licenses to heterosexual couples, until the Fifth Circuit has a chance to weigh in. According to Reuters, Mississippi officials expect to appeal the decision.

As we noted previously, the Fifth Circuit is set to hear similar cases out of Louisiana and Texas in early January. 

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