Mere hours after a federal judge overturned Arkansas’ ban on same-sex marriage, another federal judge similarly ruled against Mississippi’s ban. The order was stayed for two weeks, and given the Fifth Circuit is already considering cases from Texas and Louisiana, the stay will likely be extended pending the higher court’s ruling on the question.
Nevertheless, Judge Carlton Reeves, an Obama appointee, wrote a lengthy, fiery opinion full of fresh nuance and points despite the dozens of similar rulings in other states. Before even addressing the law, he opened with an impassioned plea for the equality same-sex couples are seeking under the law:
In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:
- 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?
Answering “Yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage.
He concluded his introduction by asserting, “Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law,” adding later in the opinion that “common sense tells us that the application of Mississippi’s same-sex marriage ban discriminates on the basis of sexual orientation.”
Reeves also provided an epic history of not only anti-LGBT discrimination in Mississippi, but the connection that has long existed between racial and LGBT oppression. For example, the Ku Klux Klan roped gays into the pool of “infidels” along with other groups interfering with Christian white power. “One Klan photo showed a black man touching the crotch of the white man sitting next to him,” Reeves recounted, “attempting to make the link between racial equality and homosexuality explicit.” Reeves also paid special attention to Bayard Rustin, whose activism for racial justice alongside Dr. Martin Luther King, Jr. was often challenged because he was openly gay.
Mississippi continues to reinforce stigma against gays and lesbians in many ways. One of many anecdotes that Reeves noted was that “Mississippi law also requires school districts to teach its pre-Lawrence sodomy law (along with all other State laws regarding homosexuality) to schoolchildren, including children of gay couples.” Lawrence refers to Lawrence v. Texas, the 2003 Supreme Court opinion that invalidated all state sodomy laws; Mississippi’s remains on the books despite being unenforceable. This, along with the marriage ban and other anti-gay laws, demonstrates how “Mississippi law perpetuates the false notion of gay inferiority.”
And Reeves was not compelled by the idea that the law should wait for people to come around, citing a 2011 survey that found that nearly half of Mississippi Republicans still oppose interracial marriage. “If the passage of 50 years has had such negligible impact on the public’s opinion of interracial marriage in the Deep South,” he wrote, “it is difficult to see how gay and lesbian Mississippians can depend on the political process to provide them any timely relief.”
In fact, Reeves took direct aim at the Sixth Circuit’s recent ruling upholding same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee. Among the circuit’s rationales was that the people’s votes on the bans should be respected, but their minds might change. But Mississippi’s ban, Reeves pointed out, passed by the biggest margin of any state amendment, with 86 percent supporting the measure. If the state’s progress on interracial marriage is any indication, same-sex couples cannot afford to wait around for voters to change their minds. Besides, he wrote, “The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place.”
The Fifth Circuit is already scheduled to hear marriage equality cases from Texas and Louisiana in January, and when Mississippi officials appeal this decision, it may be roped in with the other two. The lower court ruling in Texas overturned that state’s ban on same-sex marriage, but Louisiana’s ruling favored the state. The circuit’s 2-1 record in the states in no way guarantees that the exceptionally conservative appellate court will rule in favor of marriage equality. If they do, however, it would allow same-sex couples to begin marrying in all three states in advance of the Supreme Court taking action that impacts all fifty states.