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Campaign for Southern Equality v. Bryant

United States District Court, S.D. Mississippi, Northern Division

November 25, 2014

CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; and CARLA WEBB, PLAINTIFFS
v.
PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; JIM HOOD, in his official capacity as Mississippi Attorney General; and BARBARA DUNN, in her official capacity as Hinds County Circuit Clerk, DEFENDANTS

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For Campaign for Southern Equality, Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, Carla Webb, Plaintiffs: Andrew J. Ehrlich - PHV, Jacob H. Hupart - PHV, Jaren Janghorbani - PHV, Joshua D. Kaye - PHV, Roberta A. Kaplan - PHV, Warren Stramiello - PHV, LEAD ATTORNEYS, PRO HAC VICE, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP - New York, New York, NY; Diane E. Walton - PHV, LEAD ATTORNEY, PRO HAC VICE, WALTON LAW OFFICE, Asheville, NC; Robert B. McDuff, LEAD ATTORNEY, Sibyl C. Byrd, MCDUFF & BYRD, Jackson, MS; Dianne Herman Ellis, Rita Nahlik Silin, SILIN & ELLIS, Ocean Springs, MS.

For Phil Bryant in his Official Capacity as Governor of the State of Mississippi, Jim Hood in his Official Capacity as Mississippi Attorney General, Defendants: Justin L. Matheny, LEAD ATTORNEY, Paul E. Barnes - Government, MISSISSIPPI ATTORNEY GENERAL'S OFFICE, Jackson, MS.

For Barbara Dunn in her Official Capacity as Hinds County Circuit Clerk, Defendant: Pieter Teeuwissen, LEAD ATTORNEY, PIETER TEEUWISSEN, PLLC, Jackson, MS.

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MEMORANDUM OPINION AND ORDER

Carlton W. Reeves, UNITED STATES DISTRICT JUDGE.

Two same-sex couples brought this lawsuit challenging Mississippi's laws prohibiting same-sex marriage. One couple wishes to marry in Mississippi; the other was married out-of-state and wants Mississippi to recognize the marriage. A group advocating for gay and lesbian equality has joined their effort to seek relief on behalf of its members.

The plaintiffs claim that Mississippi's constitutional and statutory provisions limiting same-sex marriage (the " same-sex marriage ban" ) discriminate against them and other same-sex couples, depriving

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them of rights guaranteed under the Fourteenth Amendment to the United States Constitution. They have moved for a preliminary injunction to stop the State from enforcing the ban, as well as a declaration that it is unconstitutional.

The State of Mississippi defends its laws. It argues that same-sex marriage should be defined by tradition and left up to the legislature and the voters. In the event it loses, it asks the court to stay the preliminary injunction so that the State may appeal without disrupting the status quo.

The court has considered the parties' briefs and asked questions of their attorneys at a hearing held November 12, 2014. There are no disputed facts. The only evidence consists of uncontested affidavits from the plaintiffs. The principal questions are matters of law. That law is relatively straightforward.

This case is one of many in which gay and lesbian couples ask the judiciary to finally resolve whether same-sex marriage bans violate the United States Constitution. In the wake of United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), nearly every court presented with the issue has found such bans unconstitutional.[1]

The majority of Mississippians disapprove of same-sex marriage. They have made that abundantly clear through every channel in which popular opinion can be voiced. This court does not believe that

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the 86% of Mississippians who voted against same-sex marriage in 2004 did so with malice, bigotry, or hatred in their hearts. Many were simply trying to preserve their view of what a marriage should be, whether by religion or tradition. They deserve an explanation as to why same-sex marriage is now sweeping the country.

It has become clear to the court that people marry for a number of reasons: marriage is a profound source of emotional support; marriage is a private and public expression of commitment; some marry in exercise of their religious beliefs; some do so because it opens the door to economic and government benefits; there are those who marry to present a certain status or image; and others do it for the noble purpose of legitimizing their children. 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.

The court concludes that Mississippi's same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi's same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

I. Background

A. The Parties

1. Campaign for Southern Equality

The Campaign for Southern Equality (CSE) is a non-profit advocacy group based in Asheville, North Carolina, that works across the South to promote " the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life." Docket No. 1, at 3. CSE brought this suit on behalf of its members who currently live in Mississippi and claim harm from Mississippi's same-sex marriage ban. Id.

2. Rebecca " Becky" Bickett and Andrea Sanders

Becky Bickett and Andrea Sanders are partners who have shared a committed relationship with each other for 10 years. Together they raise twin 16-month-old boys, whom Becky legally adopted. Andrea has no parental rights.

Becky and Andrea were introduced to each other by their sisters. Shortly thereafter, they began dating. After Hurricane Katrina destroyed their homes in 2005, they started living together. Becky and Andrea have lived together as a couple ever since. At their Harrison County home, they regularly host holiday events and cook-outs with their families, with whom they are close. They enjoy going to the beach, car shows, parades, and street fairs with their boys.

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Becky and Andrea both graduated from the University of Southern Mississippi. Becky previously worked for Northrop Grumman -- a job she sought out because it was one of the few local employers that offered domestic partnership benefits to Andrea -- but her office closed. She is currently seeking employment in geographic information systems mapping, a field in which she has experience. Andrea stays at home to care for their boys.

In 2010, Becky and Andrea had a commitment ceremony. In March 2014, they sought to make their commitment legal by applying for a marriage license in the Hinds County Circuit Clerk's office. They were denied a marriage license because they are both women.

3. Joce Pritchett and Carla Webb

Joce Pritchett and Carla Webb have been a couple for 11 years. They currently live in Hinds County, where they raise two children, ages six and two. Joce carried the children and is their lawful parent. Carla has no parental rights.

Joce graduated from Mississippi State University with a degree in civil engineering. Carla graduated from Millsaps College and the University of Mississippi School of Dentistry. Both own small businesses: Joce works as a civil engineer and Carla is an endodontist.

Joce and Carla's six-year-old daughter told them that she wanted them to marry, and Joce and Carla agreed. They traveled to Maine in September 2013 and got married. Upon returning to Mississippi, Joce and Carla held a ceremony at their home to celebrate their marriage, which was witnessed by approximately 100 friends and family members.

Joce and Carla say that their family functions as any other: they take trips to Florida, play with their kids at the park, and work to keep their house in order. Due to Mississippi's refusal to recognize same-sex marriage, Joce and Carla claim that their family is burdened by Carla's lack of parental rights, significant financial and estate planning obstacles, and the regular need to explain to others why their children have two mothers.

4. The Defendants

Governor Phil Bryant is sued in his official capacity, as is customary in constitutional challenges like this. He is the State's " supreme executive officer" and is statutorily required to " see that the laws are faithfully executed." Miss. Code Ann. 7-1-5(a), (c); see Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss. 2008) (" Execution is at the core of executive power." ).

Attorney General Jim Hood is sued in his official capacity. He is required to " intervene and argue the constitutionality of any statute when notified of a challenge thereto." Miss. Code Ann. § 7-5-1; see Kennington-Saenger Theatres v. State ex rel. Dist. Att'y, 196 Miss. 841, 18 So.2d 483, 486 (Miss. 1944) (" As to all litigation, the subject-matter of which is of state-wide interest, the Attorney General alone has the right to represent the state." ).

Hinds County Circuit Clerk Barbara Dunn is charged with issuing marriage licenses and keeping records relating to marriage licenses in Hinds County. See Miss. Code Ann. § § 41-57-48, 93-1-5, 93-1-11, & 93-1-23. She too has been sued in her official capacity.

B. Mississippi Law

The plaintiffs seek to preliminarily enjoin the defendants from enforcing Mississippi Code Section 93-1-1(2) and Section 263A of the Mississippi Constitution.

1. Mississippi Code Section 93-1-1(2)

On May 5, 1993, the Supreme Court of Hawaii became the first in the nation to recognize the possibility that same-sex

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couples had a right to marry. Baehr v. Lewin, 74 Haw. 530, 571-80, 852 P.2d 44 (1993) (ruling that the denial of marriage to same-sex couples may violate the equal protection clause of the Hawaii constitution). The Hawaii proceedings were later preempted by a state constitutional amendment, but the seed of same-sex marriage as a legal right had been planted. In response, Congress passed the Defense of Marriage Act (DOMA) in 1996. Pub. L. No. 104-199, 110 Stat. 2419 (1996), invalidated in part by Windsor, 133 S.Ct. at 2675. DOMA excluded same-sex partners from the federal definitions of " marriage" and " spouse." Id.

It is not clear whether Mississippi's laws expressly forbade same-sex marriage at that time. But in the wake of Hawaii's ruling and with the introduction of DOMA, some Mississippi officials thought it imperative to outlaw same-sex marriage to protect Mississippi's interests. In 1996, Governor Kirk Fordice, an ardent opponent of same-sex marriage,[2] signed an executive order banning same-sex marriage in Mississippi. Ronald Smothers, Mississippi Governor Bans Same-Sex Marriage, N.Y. Times, Aug. 24, 1996. Mississippi was the first State to attempt to do so by executive order. Id.

The following year, in February 1997, the Mississippi Legislature passed a bill prohibiting same-sex marriage. Governor Fordice signed the bill into law. The law states:

Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

Miss. Code Ann. § 93-1-1(2). This provision amended Mississippi's domestic relations laws, officially preventing same-sex marriages from being conducted or recognized in Mississippi.

2. Section 263A of the Mississippi Constitution

The amendment to the Mississippi constitution that bans same-sex marriage arose from similar concerns. By 2003, two cases were perceived to have substantially advanced same-sex marriage. The United States Supreme Court found that state laws criminalizing private, consensual sodomy violated the Fourteenth Amendment's Due Process Clause. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The Massachusetts Supreme Judicial Court (that state's highest court) then found that its ban on same-sex marriage was unconstitutional under its state constitution. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003).

In Mississippi, these decisions fermented a debate on whether Mississippi should amend its constitution to curtail any impact that these rulings might have on State marriage laws. The goal was to stop any recognition within Mississippi of marriages legally performed outside the State. See Jean Gordon, ' Issue Not Going Away,' The Clarion-Ledger, Oct. 29, 2004 (reporting that according to Rep. Jim Barnett, the principal author of the marriage

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amendment, the Massachusetts ruling " prompted" Mississippi's constitutional amendment). Mississippi lawmakers swiftly passed legislation allowing the voters to amend the State constitution and enshrine their views on same-sex marriage in a more permanent form.

In November 2004, an overwhelming majority of Mississippi's voters approved the constitutional amendment. It states:

Marriage may take place and may be valid under the laws of this State only between a man and a woman. A marriage in another State or foreign jurisdiction between persons of the same gender, regardless of when the marriage took place, may not be recognized in this State and is void and unenforceable under the laws of this State.

Miss. Const. art. XIV, § 263A.

II. Threshold Questions

A. Standing

Article III of the United States Constitution limits federal courts to deciding actual cases or controversies. U.S. Const. art III, § 2. Standing is a vital component of the case-or-controversy requirement. Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 386 (5th Cir. 2003). Although not raised by the parties, the court is obliged to consider whether the plaintiffs have standing to bring forth their complaint in this forum. FW/PBS, Inc. v. City of Dall., 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (" The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines." ).

As the party invoking federal jurisdiction, the plaintiffs bear the burden of establishing the three essential elements of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. Delta Commercial Fisheries Ass'n v. Gulf of Mexico Fishery Mgmt. Council, 364 F.3d 269, 272 (5th Cir. 2004).

" To show injury in fact, a plaintiff must demonstrate an injury that is concrete, distinct and palpable, and actual or imminent." Id. (citation and quotation marks omitted). " [I]njury in fact is the invasion of a legally protected interest." Pederson v. La. State Univ., 213 F.3d 858, 870-71 (5th Cir. 2000) (citation and quotation marks omitted). The second requirement is satisfied when there is a sufficient causal connection between the plaintiff's injury and the defendant's conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing's redressability requirement is satisfied when it is " likely" that the injury will be " redressed by a favorable decision." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

When considering whether a plaintiff has standing, a court " must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A case with multiple plaintiffs survives as long as at least one plaintiff has standing. Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

Taking as true the allegations in the complaint, it is evident that Becky Bickett, Andrea Sanders, Joce Pritchett, and Carla Webb have standing. These couples are all residents of Mississippi, where they are subject to laws which deny Becky and Andrea the right to marry and deny recognition of Joce and Carla's out-of-state marriage. Mississippi law causes them other substantial harms affecting not

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only their lives, but the lives of their children as well.

The tangible injuries alleged by the plaintiffs include the denial of tax benefits and denial of the protection of the State's estate laws. Docket No. 1, at 10-11; see, e.g., Miss. Code Ann. § § 27-7-31(b) (allowing married persons to file joint tax returns); 27-7-21(c) (giving married couples a $12,000 joint income tax exemption each year); 41-37-25(b) (providing that surviving spouses are among the individuals authorized to consent to the performance of an autopsy); 91-5-25 (granting surviving spouses the right of election if the will does not contain satisfactory provisions); 91-5-27 (granting surviving spouses rights to share in the deceased spouse's estate where the will does not provide for them); 91-7-63 (granting surviving spouses first preference to serve as administrator of intestate estate).

Plaintiffs also claim intangible harms, stating that " Defendants stigmatize gay couples, their children, and their families by denying them the dignity and stature afforded to married couples through governmental recognition of their most cherished relationships." Docket No. 1, at 15. " Stigmatic injury stemming from discriminatory treatment is sufficient to satisfy standing's injury requirement if the plaintiff identifies some concrete interest with respect to which he or she is personally subject to discriminatory treatment and that interest independently satisfies the causation requirement of standing doctrine." Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014) (citation, quotation marks, brackets, and ellipses omitted). Perhaps the most significant stigmatic injury suffered by the plaintiffs arises from the fact that one plaintiff in each couple lacks parental rights over the children she loves and is raising. See Docket No. 1, at 9.

When Becky and Andrea sought a marriage license from the Hinds County Circuit Clerk, they were denied because they are a same-sex couple. The denial of this license constitutes an injury for standing purposes. See Bostic, 760 F.3d at 371. Becky and Andrea's denial can be traced to Mississippi's marriage laws, defended here by the Attorney General. Declaring those laws unconstitutional and enjoining their enforcement would redress their injuries.

Joce and Carla's situation is slightly different because they were married in Maine. Nevertheless, their economic and stigmatic injuries are otherwise identical to Becky and Andrea's, and they too would see those injuries remedied if the defendants were enjoined from enforcing Mississippi's same-sex marriage ban.

CSE also has standing to sue on behalf of its members. Its members allegedly suffer the same injuries as the plaintiffs, plus some of the injuries imposed by State law which do not appear to be imposed upon the plaintiffs. See, e.g., Miss. Code Ann. § § 21-29-329(1) (authorizing municipalities " to allow those spouses who are receiving retirement benefits . . . to continue to receive the spouse retirement benefits for life even if the spouse remarries." ); 25-11-114 (granting certain benefits to surviving spouses of public employees who die prior to retirement); 25-15-13 (providing life and health insurance coverage eligibility to spouses of state employees). At oral argument, counsel for plaintiffs stated that she is aware of gay and lesbian Mississippians who are denied the benefits Mississippi law affords spouses of public employees, due to their inability to marry their partner. See infra Part IV.C.

Associational standing is satisfied when " (1) the association's members would independently meet the Article III standing

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requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members." Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (citation omitted).

The allegations in the complaint support that CSE's members would independently have standing to seek the relief described in this suit alongside the individual plaintiffs, and would be satisfied by a judgment against these defendants. It also is evident that CSE's mission is aligned with its goals in this suit. Additional members need not participate because the questions presented are legal, not factual.

Accordingly, all of the plaintiffs have standing to bring these claims.

B. Baker v. Nelson

The State argues that the plaintiffs' claims are foreclosed by Baker v. Nelson. In that case, Richard Baker claimed that his constitutional rights were violated when he was denied a license to marry a man. 291 Minn. 310, 191 N.W.2d 185 (Minn. 1971). The Supreme Court of Minnesota found that he had no such right under the Due Process or the Equal Protection Clauses of the Fourteenth Amendment. Id. at 186. The United States Supreme Court dismissed his appeal, stating in a one-sentence order that it failed to present " a substantial federal question." 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972).

The Supreme Court has instructed that summary dismissals " do not . . . have the same precedential value here as does an opinion of this court after briefing and oral argument on the merits." Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (citation omitted). It has also instructed that " unsubstantial" federal questions remain so " except when doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (citation omitted and emphasis added). [3] This suggests that when summary dismissals are challenged, lower federal courts should examine subsequent Supreme Court decisions issued after full briefing and oral argument, if any, and consider whether they have cast doubt upon the summary dismissal.

A review of the last four decades of constitutional law shows that Baker has effectively been preempted by major doctrinal

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developments in anti-discrimination law and same-sex rights. When Baker was decided in 1972, sex classifications did not receive heightened scrutiny and gay and lesbian citizens were not entitled to equal dignity under the law. Forty-two years later, the law in these areas has changed fundamentally. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (" We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do." ); Lawrence, 539 U.S. at 567 (" When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." ); Windsor, 133 S.Ct. at 2694 (finding DOMA unconstitutional in part because " it humiliates tens of thousands of children now being raised by same-sex couples" ).

Windsor is the most illustrative example. When the case was before the Second Circuit, that court looked at the doctrinal developments and concluded that Baker lacked " resonance." Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012). A dissent argued that " Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court." Id. at 194 (Straub, J., dissenting). Windsor's opponents then asked the Supreme Court to reverse, in part by emphasizing Baker 's " precedential effect." Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives at 26, United States v. Windsor, No. 12-307 (U.S. Jan. 22, 2013). The case presented a prime opportunity to discuss the ongoing relevance of Baker to same-sex marriage rights.

Not a single Justice, however, thought the case worthy of engagement. It was not cited in the majority opinion or any of the three dissenting opinions. Instead, the Court explained in great detail the harmful effects marriage restrictions have on gay and lesbian citizens and their children. Windsor, 133 S.Ct. at 2694-95. This reasoning is fundamentally contrary to Baker. If Baker lacked resonance when the Second Circuit resolved Edith Windsor's case, it was dead in the water when the Supreme Court was finished with it.

Here, the State argues that the Supreme Court has never explicitly overruled Baker. But that is not the standard. The Court's instruction was to examine " doctrinal developments." Hicks, 422 U.S. at 344. They are legion. At oral argument, despite its valiant effort, the State could not persuasively explain otherwise. Nor could it explain what further doctrinal developments could possibly be necessary to render Baker irrelevant.

Four decades of major changes in this area of the law are enough. Baker does not prevent this Court from reaching the merits of the plaintiffs' claims.

This conclusion aligns with decisions from four out of the five circuit courts of appeal to consider the constitutionality of same-sex marriage bans post- Windsor. Bostic, 760 F.3d at 375; Baskin v. Bogan, 766 F.3d 648, 660 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456, 2014 WL 4977682, at *3 (9th Cir. Oct. 7, 2014); Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir. 2014). But see DeBoer v. Snyder, 772 F.3d 388, 2014 WL 5748990, at *7 (6th Cir. Nov. 6, 2014). As Judge

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Posner wrote, " Baker was decided in 1972 - 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned." Baskin, 766 F.3d at 660.

This issue merits a final aside. Last month, the Supreme Court allowed same-sex marriage to proceed in Idaho, Indiana, Nevada, Oklahoma, Utah, Virginia, and Wisconsin. Adam Liptak, Supreme Court Allows Same-Sex Marriage in Idaho, N.Y. Times, Oct. 10, 2014; see Bostic v. Schaefer, 135 S.Ct. 286, 760 F.3d 352 (2014) (declining to review the Fourth Circuit's decision finding Virginia's same-sex marriage ban unconstitutional); Walker v. Wolf, 135 S.Ct. 316, 986 F.Supp.2d 982 (2014) (declining to review the Seventh Circuit's decision finding Indiana and Wisconsin's same-sex marriage bans unconstitutional); Herbert v. Kitchen, 135 S.Ct. 265, 755 F.3d 1193 (2014) (declining to review the Tenth Circuit's decision finding Utah's same-sex marriage ban unconstitutional). Even more recently it has declined to stay same-sex marriage in Kansas and South Carolina. Robert Barnes, Supreme Court Clears Way for Same-Sex Marriage in S.C., Wash. Post, Nov. 20, 2014.

Several of these States asked the Supreme Court to rule against same-sex marriage based on Baker. E.g., Petition for a Writ of Certiorari at 4, Herbert v. Kitchen, No. 14-124, (U.S. Aug. 5, 2014) (" the panel majority's decision contravenes this Court's own decision in Baker v. Nelson " ); Emergency Application of Governor C.L. " Butch" Otter to Stay Mandate Pending Disposition of Applications for Stay Pending Rehearing And Certiorari at 16-17, Otter v. Latta, 135 S.Ct. 345, 190 L.Ed.2d 244 (U.S. 2014) [ hereinafter Idaho Brief] (" Another indication of a good prospect of reversal by this Court is that the Ninth Circuit's decision conflicts with this Court's decision in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). . . . Baker will be highly relevant because it decided the very issue presented here." ).

The Court could have granted these petitions and issued short, per curiam decisions reversing the Fourth, Seventh, Ninth, and Tenth Circuits. The Justices have not hesitated to use that device in the past. See Johnson v. City of Shelby, Miss., 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (per curiam); Tolan v. Cotton, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam). But they did not correct same-sex marriage. The fact that the Court declined to halt same-sex marriage in so many states has no legal meaning in and of itself, but casts further doubt on the continued relevance of Baker.

The undersigned will proceed to the motion for preliminary injunction.

III. The Plaintiffs' Motion for Preliminary Injunction

A. Legal Standard

To receive a preliminary injunction, the movant must show " (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the defendant; and (4) that the injunction will not disserve the public interest." Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir. 2012) (citation omitted). " Each of these factors presents a mixed question of fact and law." Id. (citation omitted).

" A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four . . .

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prerequisites." Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

B. Substantial Likelihood of Success on the Merits

The movant's likelihood of success is determined by substantive law. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).

Under the Fourteenth Amendment, a state may not " deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes.

In 1896, the Supreme Court found that " separate schools for white and colored children" did not violate the Fourteenth Amendment. Plessy v. Ferguson, 163 U.S. 537, 544, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). In 1954, though, the Court ruled that racially segregated schools were inherently discriminatory and unconstitutional. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

In 1872, a woman was denied a law license solely because she was a woman.[4] Bradwell v. Illinois, 83 U.S. 130, 21 L.Ed. 442 (1872). The Equal Protection Clause was essentially irrelevant when it came to women. Ninety-nine years passed before the Court " ruled in favor of a woman who complained that her State had denied her the equal protection of its laws." Virginia, 518 U.S. at 532 (citation omitted).

In 1986, the Supreme Court said a state could criminalize consensual sex between two men in the privacy of their home. Bowers v. Hardwick, 478 U.S. 186, 188-89, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986).[5] The Court reversed course within two decades. " Bowers was not correct when it was decided, and it is not correct today," it explained. Lawrence, 539 U.S. at 578.

These are just a few examples. There are others.[6] Even an abbreviated history

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shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual ...


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