BY CHRIS JOHNSON, WASHINGTON BLADE
In the aftermath of a higher court overturning his decision, a federal judge who ruled against a Mississippi “religious freedom” law enabling sweeping anti-LGBT law has opened up to a new path for a legal challenge to the statute.
U.S. District Judge Carlton Reeves, an Obama appointee, issued the order Friday in the case against Mississippi’s HB 1523 filed by the Campaign for Southern Equality and two same-sex couples in the state.
The order lifts a stay in the case, allowing up to five written interrogatories to identify which of the 82 clerk’s offices in Mississippi have sought to recuse themselves from issuing marriage licenses to same-sex couples under the law and the process by which they intend to handle those recusals.
Additionally, the order grants the state until Nov. 13, or a time until the parties may agree, to respond or object to the written interrogatories.
If a Mississippi clerk was found to have recused themselves from issuing marriage licenses or if any such recusal impaired the ability of a same-sex couple to obtain a marriage license, that could form the basis for a new challenge to HB 1523.
The law, signed by Gov. Phil Bryant last year, allows state government employees who facilitate marriages the option to opt out of issuing licenses to same-sex couples, but the person must issue prior written notice to the state government and a clerk’s office must not delay the issuance of licenses.
But the law isn’t limited to clerks. It prohibits the state from taking action against religious organizations that decline employment, housing or services to same-sex couples; families who’ve adopted a foster child and wish to act in opposition to same-sex marriage and individuals who offer wedding services and decline to facilitate a same-sex wedding.
Additionally, the law allows individuals working in medical services to decline a transgender person’s request for gender reassignment surgery.
Reeves last year issued a preliminary injunction enjoining enforcement of the “religious freedom” law on the basis that it violated the Establishment Clause, which prohibits the government from aligning itself with a particular religion. In this case, Reeves determined HB 1523 endorsed one particular religious view on LGBT people, thus was unconstitutional.
But a three-judge panel U.S. Fifth Circuit of Appeals overturned that decision on the basis that plaintiffs lacked standing to challenges the lawsuit. Despite a request from plaintiffs for a “en banc” rehearing before the full court, the Fifth Circuit refused to hear the case. As a result, the law took effect earlier this month.
The Campaign for Southern Equality lawsuit was consolidated with a separate lawsuit filed by LGBT people, a dozen Mississippi ministers and the Joshua Metropolitan Community Church. Lambda Legal, which is representing plaintiffs in that lawsuit, sought relief after the Fifth Circuit ruling rejecting their challenge by filing a petition of certiorari before the U.S. Supreme Court. The high court has yet to act on the petition.
As of earlier this month, the Campaign for Southern Equality had also stated a plan to take its challenge up to the Supreme Court. It wasn’t immediately clear the organization still plans to pursue that course of action in the aftermath of the judge’s order.