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Thursday, June 30, 2016

Same-sex marriage, religious opt-outs, and constitutional procedure

On Monday, Judge Reeves of the Southern District of Mississippi declared that Mississippi cannot statutorily authorize county clerks to opt-out of issuing marriage licenses to same-sex couples based on religious objections to same-sex marriage (the law was enacted soon after, and in response to, Obergefell). But the order was entirely bound-up in the procedure of constitutional litigation, particularly with respect to marriage. Refreshingly, Judge Reeves took his time on the process and got it right.

The plaintiffs challenged the Mississippi law through a motion to amend the existing permanent injunction prohibiting enforcement of the state's ban on same-sex marriage. Before the court could reach the constitutionality of the new state law it had to determine:

1) It still had jurisdiction to enforce and expand the injunction, because the same issue--the constitutionality under the Fourteenth Amendment of a state law seeking to treat same-sex couples differently than opposite couples with respect to marriage licenses--was involved in both the original injunction and the new challenge.

2) The plaintiffs have standing to expand the injunction. This one is trickier, because the named couples have, presumably, gotten their marriage licenses, so they are not injured by the new law. And this is not a class action. The court relied on basic principles that plaintiffs always have a right to protect their final judgment, although the new law does not threaten the injunction as to them. Any uncertainty was resolve by the court's third point--the Campaign for Southern Equality is a plaintiff and it has associational standing to represent any members who want a license in the future and may have it denied pursuant to the new law.

3) The named plaintiffs, and the enjoined persons, are the governor, the AG, and the clerk of one county. The plaintiffs were trying to get the clerks for the other 81 counties in the state to comply with Obergefell. The court recognized that these 81 clerks are not parties and not bound by the injunction. Instead, the court ordered the parties to ensure that these other parties have notice of the injunction and that they are subject to it, presumably by adding them as defendants and/or certifying a defendant class, to whom the injunction can be extended.

4) The injunction would be extended to state that everyone bound by the injunction must issue marriage licenses to same-sex couples on the "same terms and conditions as opposite-sex couples." The court took this language from Obergefell to ensure that the Supreme Court decision, which is the law of the land and the law of the circuit, will be enforced. The judiciary, he added, should "remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly." Without saying so, Judge Reeves capture the departmentalist point--the injunction against specific individuals is necessary to formally bind them to Obergefell. The key is to ensure that all appropriate people are named parties subject to an injunction.

5) The court left it to the parties to figure out how to get notice to the other clerks and to agree on language for the amended permanent injunction.

Posted by Howard Wasserman on June 30, 2016 at 02:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


While this statute seems like a very dumb enactment (does nothing but harm the state), I disagree that standing exists in this case.

You write that:

"Any uncertainty was resolve by the court's third point--the Campaign for Southern Equality is a plaintiff and it has associational standing to represent any members who want a license in the future and may have it denied pursuant to the new law."

- end quote -

I agree that, if the statute did have the effect of preventing or even delaying the issuance of marriage licenses, then that would give rise to standing.

If you read the statute, however, it merely provides a mechanism for county clerks to go, behind the scenes, to the state judicial administrative agency and recuse themselves from issuing the licenses. The statute then requires the state agency to take "all necessary steps" to ensure that someone else in the clerk's office is made available to issue the licenses with no delay. To assume that there WOULD be delay, you'd have to assume that the state agency failed to comply with the statute's express directives.

In fact, a prospective plaintiff wouldn't even KNOW that a clerk had recused himself if not for the fact that the plaintiffs in this case have issued subpoenas to the state agency to discover the identity of any recusing.

So the plaintiffs are left to claim the "dignitary" harm of a clerk recusing himself or herself from issuing licenses, the issuance of which was not even delayed, and the plaintiffs wouldn't even know about it under the statute if they had not issued subpoenas to find out about it.

Sorry, but that's not standing.

Posted by: Fred | Jul 10, 2016 12:43:09 PM

I get that the subject-matter of the suits is the same. But the defts are different and have no relation to one another, as the clerks are country officials rather than state employees. If a pltf could always reopen a final judgment under rule 60 just to add unrelated defts who are committing the same alleged violation, it'd make a mockery of the rule that non-parties aren't bound by judgments, since the pltfs could just forum-shop the case before the same judge who'd already decided the issue.

Posted by: Hash | Jul 2, 2016 11:37:14 AM

We have to see how it plays out. The order referred to notice of an injunction binding on the 81 clerks, which I interpreted as requiring the clerks to be joined or made part of a defendant class.

As for FRCO 60, the court doesn't seem to be treating this as s new lawsuit, because the suit remains about state limits on the issuance of licenses to same-sex couples. And the new law pulls the clerks in with the original defendants (Gov/AG) as the means for denying those licenses.

Posted by: Howard Wasserman | Jul 2, 2016 7:48:57 AM

Howard: It seems to me the judge does make a significant procedural mistake with respect to the other county clerks. Namely, notice alone is not sufficient to make them bound by this injunction under FRCP 65(d), because they're not the existing defendants' "officers, agents, servants, employees, and attorneys" or "in active concert or participation" with the defendants or its agents. Thus, before they can be enjoined, they actually need to be sued by pltf(s) with standing, and given the opportunity to defend that lawsuit -- i.e., even once notified of the court's ruling here, they're not bound or precluded by it and have the right to relitigate it (absent affirmance on appeal, which would then have stare decisis effect, but would not obviate the need to sue them). Moreover, I'm pretty sure it would be a violation of Rule 60 to reopen this old lawsuit in order to bring a new lawsuit against new defendants who are unconnected to the old defendants -- that's an obvious and improper attempt to judge-shop, rather than submitting the newly filed case for random reassignment.

Posted by: Hash | Jul 1, 2016 8:37:57 AM

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