The Next Obergefell Shoe Falls

November 9, 2015 § 6 Comments

Before the US Supreme Court ruled in Obergefell v. Hodges on the constitutionality of same-sex-marriage bans and recognition of same-sex-marriages contracted in other states, Mississippi had its own same-sex-marriage case, Czekala-Chatham v. State of Mississippi, about which I posted previously. At the trial level, the chancellor had refused to recognize the parties’ marriage in another state, as required by the language of our state Constitution, and the appellant appealed, claiming that the Mississippi provision was contrary to the US Constitution. The State of Mississippi countered, taking the position that the ban was constitutional. As you may recall, the MSSC put that case on hold after the SCOTUS granted cert in Obergefell.

Then Obergefell came down in June, 2015, ruling unconstitutional state bans on issuance of marriage licenses to same-sex couples and requiring states to recognize the lawful marriages of same-sex couples in other states. Mississippi then confessed the appellant’s position in Czekala-Chatham, and the appellant then moved to dismiss the complaint and render judgment in favor of the appellant. The case has sat on the MSSC docket since then. In the four months since SCOTUS ruled, our court had been silent on its same-gender case.

On November 5, 2015, in Czekala-Chatham v. State of Mississippi, the MSSC did finally rule on the case, but only via an order that says, in essence, that, since the state had agreed that the case should bee reversed and remanded for further proceedings, “We find that no contested issues remain for resolution, and that the [appellant’s] motion should be granted. End of case for now.

The order, signed by Justice Randolph, was joined by Lamar, Chandler, and Pierce. Pierce agreed, with a separate opinion joined by Chandler. Justices Dickinson, King, and Coleman objected to the order.

All writing separate opinions would have preferred to render an opinion in the case to discuss its merits. Justice Coleman offered his objecting opinion as what he would have written to find Mississippi’s laws on the subject unconstitutional.

From the majority’s viewpoint, I suppose, the order narrowly rests on the vehicle that was presented to the court: i.e., the appellant’s motion to dismiss, and the majority did not want to venture out into areas not encompassed in the motion.

To the objectors, however, the court missed an opportunity to settle this area of law in our state so that litigants, lawyers, and judges would have a clear beacon by which to navigate.

All of the ramifications of Obergefell will become clear over time, but it will take more appeals than Czekala-Chatham to get there, it appears.

Where do we go from Here?

June 29, 2015 § 1 Comment

SCOTUS has spoken in Obergefell v. Hodges, handed down last Friday, making it unlawful for any state to refuse to issue licenses for same-sex marriage (SSM) to persons applying within the state, and making it unlawful for any state to refuse to recognize SSM that was performed legally in another jurisdiction. That pretty well wipes out Mississippi’s position on the issue.

There is a hiccup in Mississippi, however, in that the AG takes the position that, until the 5th Circuit lifts the stay imposed by US Dist. Judge Carlton Reeves in the litigation challenging Mississippi’s law that is on appeal in New Orleans, Mississippi may not issue marriage licenses for SSM.

After that is resolved, however, what impact will Obergefell have on family law in Mississippi? Here are a few of my own opinions:

  • Ferguson will still govern equitable distribution, Albright will still govern child custody, the statutes and Huseth will still govern child support, and so on and so on. For the life of me, I do not see any substantive issues that will not be resolved by the familiar substantive rules that are already in place.
  • Likewise, our procedures remain the same. Only the gender of the parties is different.
  • I heard some lawyers Friday opining that chancery courts need to brace for a flood of divorces from SSM. I don’t get that logic. Oh, I am sure there will be some, but there have to be the marriages first, and my impression is that most gays in Mississippi have been awaiting this development rather than going to other states for SSM, since that other-state marriage would not be recognized under our law anyway.

I think this decision will have the same kind of aftermath as Roe v. Wade. That 1973 case (that’s 42 years ago, for the math-challenged) spawned legislation and litigation that continue to this day as opponents try to probe for a way around it or to ascertain its limits, and proponents try to enforce it. Both Obergefell and Roe v. Wade are substantive due process cases, and those just take longer people to accept, if they ever do.

As with Roe v. Wade, this latest case involves issues that sound in morality and religious teaching, rendering compromise and accommodation much less likely. the role of SCOTUS is to interpret the Constitution, not the Bible. We all know that, and I, for one, prefer for SCOTUS and the other two branches of government to stay out of the Bible-interpretation business. Still, when cases like this fall in that overlap area, they spawn a lot of consternation among the citizenry.

Oh, and as a chancellor, it is my role to apply the law as I am presented with it. That I will do. I have read the majority opinion and the dissents, so I know what is required of me.

As lawyers, you will represent your clients. Those who benefit from the decision whom you take on as clients, as well as those who challenge it.

I have to confess that I was a little surprised at the scope of the decision. I thought the court would say that states must recognize the legal marriages of other states, but that the rules of marriage would be left to the states. That proves, among other things, that I am no constitutional-law scholar.

So, these are my preliminary thoughts. It will be interesting to look back at this 42 years hence — in the unlikely event that I’m still around.

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