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Case 3:14-cv-00818-CWR-LRA Document 52 Filed 06/27/16 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION


CAMPAIGN FOR SOUTHERN
EQUALITY; REBECCA BICKETT;
ANDREA SANDERS; JOCELYN
PRITCHETT; and CARLA WEBB

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 ZACK WALLACE,
in his official capacity as Hinds County
Circuit Clerk


ORDER

PLAINTIFFS

CAUSE NO. 3:14-CV-818-CWR-LRA

DEFENDANTS



Before the Court is the plaintiffs’ Motion to Reopen Judgment, File Supplemental

Pleading, and Modify the Permanent Injunction. The matter is fully briefed and the parties

thoroughly argued their positions at a motion hearing held on June 20, 2016.



The plaintiffs are concerned that newly-enacted House Bill 1523, the “Protecting

Freedom of Conscience from Government Discrimination Act,” will violate the Permanent

Injunction they secured in this case in 2015. They seek to reopen the case to, among other things,

file a supplemental complaint naming the State Registrar of Vital Records as a defendant, force

the Registrar to post certain records online, and amend the Permanent Injunction to ensure that

their Fourteenth Amendment rights are protected. The State opposes all relief.



For the reasons that follow, the Court concludes that the motion should be granted in

limited part. Section 3(8)(a) of HB 1523 significantly changes the landscape of Mississippi’s

marriage licensing laws. The case will be reopened to address that change. The plaintiffs’ request

to file a supplemental complaint against the Registrar, however, will be denied.

Case 3:14-cv-00818-CWR-LRA Document 52 Filed 06/27/16 Page 2 of 16

I.

Factual and Procedural History





A.

Same-Sex Marriage Litigation

In 2014, this Court issued a Preliminary Injunction enjoining the enforcement of § 263A

of the Mississippi Constitution and Mississippi Code § 93-1-1(2). Those authorities prohibited

same-sex couples from receiving a marriage license in Mississippi or securing State recognition

of an out-of-state marriage. Campaign for Southern Equality v. Bryant, 64 F. Supp. 3d 906 (S.D.

Miss. 2014) [hereinafter CSE I]. The injunction was stayed pending appeal to the United States

Court of Appeals for the Fifth Circuit.



While that appeal was pending, the Supreme Court affirmed 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.” Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015). Consequently,

it pronounced that same-sex couples must be allowed to join in civil marriage “on the same terms

and conditions as opposite-sex couples.” Id. at 2605. That resolved the issue nationwide.



The Fifth Circuit quickly issued a published opinion declaring that “Obergefell . . . 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.” Campaign for Southern Equality v. Bryant, 791 F.3d 625,

627 (5th Cir. 2015) [hereinafter CSE II]. It returned the case here on July 1, 2015, with an

instruction to “act expeditiously on remand and . . . enter final judgment . . . by July 17, 2015,

and earlier if reasonably possible.” Id.



A few hours later, with this mandate in hand, this Court entered a Permanent Injunction

and a Final Judgment in the plaintiffs’ favor. The heart of the Permanent Injunction read as

follows:



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In light of the United States Supreme Court’s decision in Obergefell v.

Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015), and the issuance of
the mandate from the United States Court of Appeals for the Fifth Circuit, it is
now appropriate to permanently enjoin the enforcement of Mississippi’s same-sex
marriage ban. Accordingly,

IT IS HEREBY ORDERED that the State of Mississippi and all its

agents, officers, employees, and subsidiaries, and the Circuit Clerk of Hinds
County and all her agents, officers, and employees, are permanently enjoined
from enforcing Section 263A of the Mississippi Constitution and Mississippi
Code Section 93-1-1(2).


Docket No. 34. Much of this language was drawn from the Preliminary Injunction.



At first, there was confusion about whether and how every Circuit Clerk’s office in

Mississippi would follow Obergefell. “In a letter sent to Attorney General Jim Hood and Gov.

Phil Bryant,” one article reported, “the clerks asked for direction on how to proceed.” Ross

Adams, Circuit Clerks Refusing to Issue Same-Sex Marriage Licenses Seek Answers, WAPT

News, July 1, 2015. “‘We clerks make no decisions of law,’” they wrote. Id. “‘We are tasked

with the job of implementing the law. What is the law and how are we to properly follow it? We

can be found liable . . . . We are formally stating we need your help.’” Id.

The Attorney General’s Office responded to the clerks formally and informally. Among

other things, it issued an Opinion advising all 82 Circuit Clerks to grant marriage licenses “to

same-sex couples on the same terms and conditions accorded to couples of the opposite sex.” In

re Steve Womack, 2015 WL 4920123, at *1 (Miss. A.G. July 17, 2015). Mississippi’s same-sex

marriage ban had been laid to rest.





B.

House Bill 1523

In its next session, the Mississippi Legislature passed HB 1523. Governor Bryant signed

the bill into law on April 5, 2016. It goes into effect on July 1, 2016.



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HB 1523 first enumerates three “sincerely held religious beliefs or moral convictions”

entitled to special legal protection. They are,

(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual’s immutable biological
sex as objectively determined by anatomy and genetics at time of birth.


2016 Miss. Laws, HB 1523 § 2. These will be referred to as the “§ 2 beliefs.”



HB 1523 then says the State of Mississippi will not “discriminate” against any person for

holding a § 2 belief. Id. §§ 3-4. “Discriminatory action” is defined broadly; it includes

consequences in the realm of employment, state benefits, taxation, diplomas, licensing, and so

on. Id. § 4. In short, a person who acts (or declines to act) based upon a § 2 belief cannot be

subjected to State sanctions.



It is undisputed that consequences under federal law remain available. States “lack

authority to nullify a federal right or cause of action they believe is inconsistent with their local

policies.” Haywood v. Drown, 556 U.S. 729, 736 (2009).



The part of HB 1523 relevant to this case is § 3(8)(a).1 It must be reproduced here in its

entirety.

Any person employed or acting on behalf of the state government who has
authority to authorize or license marriages, including, but not limited to, clerks,
registers of deeds or their deputies, may seek recusal from authorizing or
licensing lawful marriages based upon or in a manner consistent with a sincerely
held religious belief or moral conviction described in Section 2 of this act. Any
person making such recusal shall provide prior written notice to the State
Registrar of Vital Records who shall keep a record of such recusal, and the state
government shall not take any discriminatory action against that person wholly or
partially on the basis of such recusal. The person who is recusing himself or
herself shall take all necessary steps to ensure that the authorization and licensing
of any legally valid marriage is not impeded or delayed as a result of any recusal.



1 The plaintiffs’ motion also mentions § 3(8)(b), which grants recusal rights to persons authorized to solemnize
marriages in Mississippi. See Miss. Code Ann. §§ 93-1-15, 93-1-17. But the plaintiffs then omit § 3(8)(b) from their
proposed Amended Permanent Injunction. This Order will focus on § 3(8)(a).



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HB 1523 § 3(8)(a). The State’s attorneys say that § 3(8)(a) “effectively amends Mississippi

County Circuit Clerks’ Office’s marriage licensing obligations under state law by specifying

conditions under which a clerk’s employee may recuse himself or herself from authorizing or

licensing marriages.” Docket No. 41, at 6. According to those attorneys, HB 1523 requires

marriage licenses to be issued to same-sex couples immediately. The law is not clear on who

must bear that responsibility if every clerk in a particular county files a recusal form.2



From this summary the battle lines are apparent. The plaintiffs contend that permitting

clerks to recuse themselves from serving same-sex couples returns Mississippi to unlawful

discrimination against same-sex couples seeking to wed, in violation of the Permanent Injunction

and Obergefell. HB 1523’s proponents, in contrast, claim that the bill protects against

discrimination by ensuring that clerks do not have to violate a sincerely held religious belief

protected by § 2, while ensuring that same-sex couples get their marriage license.





C.

The Present Motion

Twenty days after Governor Bryant signed HB 1523, the plaintiffs wrote the Governor,

Attorney General Hood, and State Registrar of Vital Records Judy Moulder to ask how persons

recusing themselves under HB 1523 would comply with this Court’s Permanent Injunction and

Obergefell. The plaintiffs asked for copies of incoming written recusal notices and detailed

compliance plans from each recusing individual.



The State denied that the Registrar was bound by the injunction.3 It argued that she has

nothing to do with enforcing Obergefell and would not provide the plaintiffs with any

documentation unless they made a public records request. The State added that the Registrar’s


2 For simplicity, the Court will refer to persons with authority to issue marriage licenses as “clerks.”
3 The State initially treated the plaintiffs’ letter as a request for public records. The plaintiffs took exception to that
interpretation and framed their request as one brought pursuant to Federal Rule of Civil Procedure 69.



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office would merely be a repository for recusal notices, with no duty to inquire into how recusing

individuals would ensure that same-sex couples received a marriage license.



This motion followed. The plaintiffs seek an Amended Permanent Injunction requiring

the Registrar to: (1) provide plaintiffs’ counsel with recusal notices within a week of receipt; (2)

post the recusal notices to a prominent place on the State’s website; (3) require recusing

individuals to submit a plan for complying with Obergefell; and (4) require recusing individuals

to cease issuing marriage licenses to opposite-sex couples.



The State argues that the plaintiffs are seeking new, open-ended relief against an

unknown number of parties not before the Court. It further contends that the plaintiffs have not

been injured by HB 1523 and cannot complain about hypothetical constitutional violations.

II.

Legal Standard



“A continuing decree of injunction directed to events to come is subject always to

adaptation as events may shape the need.” United States v. Swift & Co., 286 U.S. 106, 114

(1932) (collecting cases). “Courts of equity have long recognized and exercised a power to

modify or set aside their injunctive decrees in the light of changed circumstances.” Cook v.

Birmingham News, 618 F.2d 1149, 1151 (5th Cir. 1980). The changed circumstances can be

factual or legal, but must be “significant.” Horne v. Flores, 557 U.S. 433, 447 (2009); see ICEE

Distributors, Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 850 (5th Cir. 2006). A legal change

can be recognized “in either statutory or decisional law.” Agostini v. Felton, 521 U.S. 203, 215

(1997) (citations omitted).



“A Rule 60(b)(5) motion is the appropriate vehicle for modifying a permanent injunction

that has prospective effect, regardless of whether the modification expands restrictions or



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eliminates restrictions in the injunction.” Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 190

(5th Cir. 2008) (citation omitted). The motion can be made by a party or by the Court. Id.

“The party seeking relief bears the burden of establishing that changed circumstances

warrant relief, but once a party carries this burden, a court abuses its discretion when it refuses to

modify an injunction or consent decree in light of such changes.” Horne, 557 U.S. at 447

(quotation marks and citations omitted).



“Although rule 60(b)(5) is to be construed liberally to prevent injustice, courts must also

take account of a competing policy also embodied in the rule [–] the need to achieve finality in

litigation.” Cook, 618 F.2d at 1153 (citations omitted). “That is, although the desideratum of

finality is an important goal, the justice-function of the courts demands that it must yield . . . to

the equities of the particular case in order that the judgment might reflect the true merits of the

cause.” Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d 382, 385-86 (5th Cir. 2012)

(quotation marks and citation omitted).

III. Discussion





A.

Jurisdiction

“The correct analysis of the scope of the court’s continuing jurisdiction begins by

identifying the constitutional infirmity addressed by this case in [earlier proceedings].” Brumfield

v. Louisiana State Bd. of Educ., 806 F.3d 289, 299 (5th Cir. 2015) (citation omitted). “[A]ny

order issued under the district court’s continuing jurisdiction over this case ha[s] to be related to

correcting th[at] constitutional violation.” Id. at 299.



The constitutional violation this case addressed in 2014 and 2015 was whether the

Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex

couples with respect to the issuance and recognition of marriage licenses.



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Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the

differential treatment to be carried out by individual clerks. A statewide policy has been ‘pushed

down’ to an individual-level policy. But the alleged constitutional infirmity is the same. The

question remains whether the Fourteenth Amendment requires marriage licenses to be granted

(and out-of-state marriage licenses to be recognized) to same-sex couples on identical terms as

they are to opposite-sex couples.



The identity of issues is no coincidence. HB 1523’s proponents candidly admitted that the

bill was passed in response to Obergefell.4 See H.B. 1523, Debate on the Floor of the Mississippi

House of Representatives, at 6:24 (Feb. 19, 2016) (statement of Rep. Andy Gipson) (“What this

bill does in essence is add an additional layer of protection that currently does not exist in the

post-Obergefell decision [sic] that came from the Supreme Court in June of 2015, which

legalized same-sex marriage throughout the United States, including in a majority of states that

had adopted the traditional definition and only recognized marriage is between one man and one

woman”); H.B. 1523, Debate on the Floor of the Mississippi Senate, at 2:34 (Mar. 31, 2016)

(statement of Sen. Jenifer Branning) (“This legislation was brought forward as a result of the

United States Supreme Court decision Obergefell last summer, that legalized same-sex

marriage.”);5 see also Adam Ganucheau, Mississippi’s ‘Religious Freedom’ Law Drafted Out of

State, Mississippi Today, May 17, 2016 (“‘After the Supreme Court decision in Obergefell (v.

Hodges), it became apparent that there would be a head-on collision between religious


4 This is perhaps the most compelling distinction between today’s case and the State’s preferred authority, the Ninth
Circuit’s per curiam decision in Planned Parenthood of S. Arizona v. Neely, 130 F.3d 400, 403 (9th Cir. 1997).
5 Videos of the floor debates have been preserved by the Mississippi College School of Law’s Legislative History
Project. The HB 1523 videos are available at http://law.mc.edu/legislature/bill_details.php?id=4621&session=2016.



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convictions about gay marriage and the right to gay marriage created by the decision,’ [House

Speaker] Gunn said in a statement to Mississippi Today.”).6



Because of the overlap in the specific constitutional infirmity, there is continuing

jurisdiction to determine whether the Permanent Injunction should be modified to account for

§ 3(8)(a). See United States v. Hall, 472 F.2d 261, 265 (5th Cir. 1972).





B.

Standing

The State contends that the plaintiffs lack standing to seek an Amended Permanent

Injunction. The argument fails to persuade.

First, the standing requirement “does not hold . . . where a court has entered a permanent

injunction or some other equitable decree with prospective application.” Cooper v. Texas

Alcoholic Beverage Comm’n, 820 F.3d 730, 736 (5th Cir. 2016). “The permanent injunction

remains in effect, even absent the original plaintiffs.” Id.

Second, it is well-established that “[a] party that obtains a judgment in its favor acquires a

judicially cognizable interest in ensuring compliance with that judgment.” Salazar v. Buono, 559

U.S. 700, 712 (2010) (quotation marks and citation omitted). “Having obtained a final judgment

granting relief on [their] claims, [the plaintiffs] had standing to seek its vindication.” Id.

Third, even if those principles were in doubt, the Campaign for Southern Equality

continues to have associational standing. See Black Ass’n of New Orleans Fire Fighters

(BANOFF) v. City of New Orleans, La., 853 F.2d 347, 352 (5th Cir. 1988).


6 The State objects to newspaper articles being considered as evidence. The objection is well-taken, but the articles
are important for historical context. “History provides enlightenment; it appraises courts of the subtleties and
complexities of problems before them.” Jaffree v. Wallace, 705 F.2d 1526, 1532 (11th Cir. 1983). If the State finds
any particular newspaper reference objectionable, the discrete factual issue can be set for trial after an appropriate
discovery period. See Monumental Task Comm., Inc v. Foxx, --- F. Supp. 3d ---, 2016 WL 311822, at *3 (E.D. La.
Jan. 26, 2016) (crediting “the haste that is often necessary” in preliminary injunction proceedings for the general rule
that “the findings of fact and conclusions of law made by a court deciding whether to grant a preliminary injunction
are not binding at trial on the merits”). Newspaper articles aside, the videotaped legislative debates of HB 1523
provide a wealth of context and present little risk of incorrectly quoting legislators’ statements.



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Since the plaintiffs are seeking to protect their Permanent Injunction and Final Judgment,

they have standing to bring this motion.





C.

The Permanent Injunction

Until June 2015, states like Mississippi treated same-sex couples differently than

opposite-sex couples in the marriage licensing and recognition process. Obergefell and the

Permanent Injunction were issued to halt that practice.



Having reviewed the relevant section of HB 1523, the parties’ arguments, and the scope

of the Supreme Court’s ruling in Obergefell, the Court finds that § 3(8)(a) may in fact amend

Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell. Section

3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the

Permanent Injunction. The parties’ additional arguments are discussed below.





1.

Other Circuit Clerks

The parties dispute whether the 81 Circuit Clerks outside of Hinds County, who again are

not parties to this action, are bound by the Permanent Injunction.

Circuit Clerks are almost certainly aware of their obligations under Obergefell. They are

also likely aware of the Permanent Injunction, given the Attorney General’s July 2015 private

communications, public press release, and subsequent Opinion Letter to one of their colleagues.

And it is obvious that when they issue marriage licenses, clerks are acting as agents of the State,

applying uniform Mississippi law. See Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990).

The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are

presently bound by the Permanent Injunction. In Mississippi, Circuit Clerks are county officials,

notwithstanding the fact that their duties are established by state law. United States v. Harris,

No. 5:07-CR-1, 2007 WL 2028948, at *3 & n.2 (S.D. Miss. July 11, 2007).



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The Permanent Injunction affected the other 81 Circuit Clerks “only as precedent to be

applied in subsequent litigation.” Josh Blackman & Howard M. Wasserman, The Process of

Marriage Equality, 43 Hastings Const. L.Q. 243, 255 (2016). The risks associated with that

subsequent litigation are significant: “any official who forces that new lawsuit, loses, and is

enjoined would be liable for the new plaintiffs’ reasonable attorneys’ fees.” Id. at 259. But they

are risks a clerk may wish to take.

Since a contempt proceeding is the next foreseeable step in this case, the better course of

action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a

Permanent Injunction that binds them before they are held accountable for it. The parties shall

confer on an appropriate procedure for providing that notice.



2.

Post-Judgment Discovery



Under Federal Rules of Civil Procedure 65 and 69, plaintiffs are entitled to reasonable

discovery to enforce an injunction against the parties bound by that injunction. E.g., Cooper v.

Dallas Police Ass’n, 584 F. App’x 208 (5th Cir. 2014). Specific discovery disputes, if any

arise, may be brought to the attention of the Magistrate Judge.



That brings us to the disagreement about whether the Registrar is subject to the

Permanent Injunction. Recall that the Permanent Injunction applied to “the State of Mississippi

and all its agents, officers, employees, and subsidiaries . . . .” Docket No. 34.



The Registrar is definitely a State agent, officer, and employee. State law charges her

with a duty “to carry into effect the provisions of law relating to registration of marriages.” Miss.

Code Ann. § 41-57-43; see also id. § 41-57-23(1) (permitting the Registrar to accept service of

process for the Board of Health). The Registrar is also “charged by law with a[] special duty in



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connection with” § 3(8)(a), and she has pledged to fulfill that duty. Okpalobi v. Foster, 244 F.3d

405, 413, 415 (5th Cir. 2001) (en banc) (quotation marks and citation omitted).



The State presses that although the Registrar is a State employee, and State employees

are bound by the plain language of the Permanent Injunction, she is not bound because “the

State” is technically not a party to this lawsuit.7 See Docket No. 49. Although the Court will

return to this argument below, some general thoughts about the Registrar are necessary here.



On one hand, the Registrar’s willingness to comply with her new duties under HB 1523

furthers the State’s alleged end-run around Obergefell. That may be enough to bind her under

Rule 65(d)(2)(C). On the other hand, it is difficult to say that the Registrar is the true object of

the plaintiffs’ motion. She is merely a conduit. Her records will show exactly which clerks wish

to recuse themselves under § 3(8)(a), and those persons may be interested in volunteering to be a

class representative to represent similarly-situated clerks. And yet, the plaintiffs may not need

those records to find a willing class representative. See Beth Alexander, Circuit Clerks Answer if

They Will Issue Licenses to Same-Sex Couples, WJTV, June 21, 2016.



Setting aside those issues for a moment, though, there are good reasons to permit

discovery from the Registrar strictly for purposes of enforcing the Permanent Injunction. In

2016, Mississippi responded to Obergefell by creating a new way to treat same-sex couples

differently than opposite-sex couples. That the differential treatment is now pushed down to


7 The Preliminary Injunction entered in this case in November 2014 explicitly bound “the State of Mississippi and
all its agents, officers, employees, and subsidiaries.” CSE I, 64 F. Supp. 3d at 954. If the State thought that verbiage
an erroneous application of Ex Parte Young and the Eleventh Amendment, it should have raised it on appeal. See
Dagnall v. Gegenheimer, 631 F.2d 1195, 1196 (5th Cir. 1980). It did not. In fact, when the Fifth Circuit asked the
State to weigh in on the injunction’s validity in the wake of Obergefell, the State explicitly conceded its accuracy.
The Fifth Circuit therefore held: “Because, as both sides now agree, the injunction appealed from is correct in light
of Obergefell, the preliminary injunction is AFFIRMED.” CSE II, 791 F.3d at 627 (emphasis added). Given this
record, the State’s argument as to the Registrar may be foreclosed by the law of the case doctrine. Supplemental
briefing on this topic may be necessary. See Salazar, 559 U.S. at 713-14; Fred C. v. Texas Health & Human Servs.
Comm’n, 167 F.3d 537 (5th Cir. 1998) (permitting Texas to argue Eleventh Amendment immunity for the first time
on remand, in a case where the Fifth Circuit had remanded for further proceedings, not entry of Final Judgment).



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county employees should be irrelevant for discovery purposes. The State will have the

documents that show exactly where and by whom the differential treatment it authorized in HB

1523 will now occur. The plaintiffs should be able to receive that post-judgment discovery from

an appropriate State employee, like the Registrar, under Rule 69.







3.

The State’s Interests

Chief Judge Clark once wrote that the State of Mississippi “cannot dissociate itself from

actions taken under its laws by labeling those it commands to act as local officials.” Echols, 909

F.2d at 801. That is exactly what the State is doing here. Its highest officers have been enjoined

from treating same-sex couples differently when it comes to marriage licenses, but the State is

now (1) letting county employees do the previously-enjoined act, and (2) refusing discovery into

the identity of those county employees when that information will be in the State’s possession.

The Fifth Circuit long ago chastised our State for such “a carefully calculated campaign of delay

. . . and masterly inactivity.” Meredith v. Fair, 305 F.2d 343, 344 (5th Cir. 1962).



We return to the Assistant Attorney General’s argument that “the State” is not a party and

has a due process right to defend itself, as if it was somehow new to this case.8 The argument is

disingenuous. The absence of “the State” from the case caption does not mean the State’s laws

and interests are not at stake. As the Supreme Court explained in Hutto v. Finney, “[a]lthough the

Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit

against prison officials was, for all practical purposes, brought against the State. The actions of

the Attorney General himself show that. His office has defended this action since it began.” 437

U.S. 678, 699 (1978). The Fifth Circuit summarizes “the doctrine of Ex parte Young” as “a

relatively simple rule of state immunity. Basically, prospective injunctive or declaratory relief

8 Even if the State is not a named defendant, the Governor and the Attorney General are. The Governor signed a law
that arguably enables county employees to do what he and his agents were explicitly forbidden from doing, and the
Attorney General is defending his actions in this and related lawsuits.



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against a state is permitted.” Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988) (emphasis

added); see Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Kentucky v.

Graham, 473 U.S. 159, 170 (1985). And a leading treatise confirms that under Ex parte Young, a

federal court may “enjoin the implementation of an official state policy” because “the state is the

real party in interest,” with the same result “as if the state had been sued directly.” Erwin

Chemerinsky, Constitutional Law § 2.10.4.1 (5th ed. 2015).



The Supreme Court’s decision in Green v. Mansour may shed some light on our

predicament. Green first reaffirmed that “[r]emedies designed to end a continuing violation of

federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”

474 U.S. 64, 68 (1985) (citations omitted). Its review of precedent then led it to reaffirm that

federal courts may, in certain situations, order one-time relief which is “ancillary to the

prospective relief already ordered by the court,” as long as it is not retroactive or monetary in

nature. Id. at 70 (quoting Quern v. Jordan, 440 U.S. 332, 349 (1979)).



Today’s motion centers on the importance of State-authorized, State-held records to

vindicate federal rights protected by an existing Permanent Injunction. One therefore wonders

whether this Court may require the Registrar to provide plaintiffs with any recusal forms she

receives in the first month of HB 1523’s enactment, because it is “ancillary to the prospective

relief already ordered by the court.” Id.9 Such an order would impose no ongoing burden upon

the Registrar, much less force the uploading of recusal forms to a State website. Rather, it moves

all involved toward an efficient, single resolution: permitting a class of clerks to litigate and

attempt to reconcile HB 1523 § 3(8)(a) with the Permanent Injunction. E.g., Mississippi State


9 Even if this Court could compel the Registrar to release every recusal she receives in July 2016, there is no
guarantee she will have received any. Nothing in HB 1523 requires clerks to submit their recusal within the first 30
days (or even 60 or 90 days) of the law’s effective date. Under the bill it seems a clerk may submit that recusal at the
moment a same-sex couple arrives to obtain a license.



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Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400, 403 (5th Cir. 1991) (“included as

defendants are the circuit clerks of two counties, representing a defendant class of Mississippi

circuit clerks and county registrars”); Strawser v. Strange, 307 F.R.D. 604 (S.D. Ala. 2015).







4.

Amending the Permanent Injunction

Finally, before any notices are disseminated, any discovery requests are propounded, or

any records are compelled, the parties must confer to reevaluate the language of the Permanent

Injunction.



The Permanent Injunction was entered the same evening the Fifth Circuit issued the

mandate in CSE II. No one has argued that the Permanent Injunction is invalid, but the briefing

now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended

Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi

Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons

it binds must issue marriage licenses “on the same terms and conditions as opposite-sex

couples.” Obergefell, 135 S. Ct. at 2605; see Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000) (“[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure

every person within the State’s jurisdiction against intentional and arbitrary discrimination,

whether occasioned by express terms of a statute or by its improper execution through duly

constituted agents.”); New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 (1979) (“The

Clause announces a fundamental principle: the State must govern impartially.”). Clerks and their

deputies are, after all, “public officials elected and paid by the county to serve the public and all

of its citizens.” United States v. Duke, 332 F.2d 759, 766 (5th Cir. 1964).

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be

enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” CSE II,



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Case 3:14-cv-00818-CWR-LRA Document 52 Filed 06/27/16 Page 16 of 16

791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may

express that disagreement as they see fit – by advocating for a constitutional amendment to

overturn the decision, for example. But the marriage license issue will not be adjudicated anew

after every legislative session. And the judiciary will remain vigilant whenever a named party to

an injunction is accused of circumventing that injunction, directly or indirectly. See Hutto, 437

U.S. at 690-91.

IV. Conclusion

The motion is granted in part and denied in part. The case is reopened for the parties to

confer about how to provide clerks with actual notice of the Permanent Injunction. The parties

shall also confer on appropriate language to include in an Amended Permanent Injunction. A

status conference will be set in the coming weeks to discuss the results of those discussions and

hear how the parties wish to proceed.10 No other relief is granted at this time.



SO ORDERED, this the 27th day of June, 2016.


s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE






10 The status conference will proceed regardless of the outcome of other HB 1523-related cases.



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