Oliver Diaz (left) is representing Nykolas Alford (middle) and Stephen Thomas (right), in a federal lawsuit filed today against the Mississippi State Registrar of Vital Records, challenging the constitutionality of House Bill 1523.
Photo by Imani Khayyam.
The ACLU has filed the first federal lawsuit contesting House Bill 1523. The lawsuit names the Mississippi State Registrar of Vital Records as the defendant because that state office would have to collect a list of clerks who are recusing themselves from issuing same-sex marriage licenses as allowed in House Bill 1523, the "Protecting Freedom of Conscience from Government Discrimination Act" the Mississippi Legislature passed and Gov. Phil Bryant signed into law recently.
Former Mississippi Supreme Court Justice Oliver Diaz Jr., who is representing the plaintiffs in the case, says that simply setting up such a list is unconstitutional.
"House Bill 1523 sets up a scheme in the state of Mississippi to provide unequal treatment to citizens across the state," Diaz said. "In essence, it's setting up a separate but unequal system of registering for marriage licenses."
Judy Moulder is the named defendant in the lawsuit in her capacity as the state registrar of vital records because her office is designated in House Bill 1523 to accept and collect the filings from different clerks around the state who recuse themselves from issuing same-sex marriage licenses.
Plaintiffs Nykolas Alford and Stephen Thomas are an engaged couple who live in Meridian. They plan to get married in the next three years in Mississippi once they've finished college. The couple told reporters that they have not faced direct discrimination because of the new law or before House Bill 1523 was passed but said they wanted to be a part of the lawsuit to prevent others from experiencing such discrimination.
"Part of the reason we are here is so that no one else has to face that discrimination. We haven't faced it and that is a blessing in and of itself," Thomas said. "This law allows for people—I can't say it enough—to discriminate because of who we are, so this is us speaking up for people who haven't found their voice yet."
Diaz said that while his plaintiffs had not been subject to individual discrimination, House Bill 1523 sets up an unequal system for registering marriage licenses in the state. He also said that the U.S. Supreme Court was clear in the Obergefell decision that legalized same-sex marriage nationally that states are not allowed to treat same-sex marriages differently than different sex marriages.
Beyond the lawsuit, the ACLU has also filed a preliminary injunction asking a judge to conduct a hearing and not allow House Bill 1523 to take effect on July 1.
"We're trying to stop it before it goes into effect," Diaz said.
Proponents of House Bill 1523 claim that the bill is narrow in scope, merely preventing the state government from forcing a person to violate their "sincerely held religious belief." In an op-ed piece in the Jackson Free Press, Rep. Andy Gipson, R-Braxton, wrote: "The stated objections to HB 1523 are that it will allow people to "deny services" to certain people. That is simply not true, unless the specific services requested are related to and would violate a person's sincerely held religious beliefs about marriage or gender. In fact, HB 1523 doesn't mandate that any citizen or entity do or refuse to do anything. It does mandate that the government will not punish citizens or faith-based entities for acting or choosing not to act in accordance with their convictions."
Jennifer Riley-Collins, the executive director of the ACLU of Mississippi, said that House Bill 1523 allows one religion to be used to harm others, therefore violating constitutional rights of Mississippians.
"Freedom of religion is one of our most fundamental rights, and what we are asking is that religion not be used as a tool to harm anyone," Riley-Collins said. "As Justice Diaz points out there is a double-standard that has been set up in state law."
The lawsuit states that House Bill 1523 violates the Due Process and Equal Protection clauses of the First Amendment by identifying same-sex marriage as a "subset of legal marriages and make them unequal to all other types of legal marriages."
Riley-Collins said her organization's lawsuit will likely be the first of several filed against House Bill 1523.
"This is the first lawsuit against House Bill 1523," Riley-Collins told reporters. "And will likely not be the last."
Attorney General Jim Hood's office had not been served with a copy of the ACLU’s lawsuit by press time.
For more stories on HB1523 visit jfp.com/lgbt.