Campaign for Southern Equality, et al v. Phil Brya, No. 14-60837 (5th Cir. 2015)

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This opinion or order relates to an opinion or order originally issued on December 4, 2014.

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Case: 14-60837 Document: 00513102310 Page: 1 Date Filed: 07/01/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 14-60837 July 1, 2015 Lyle W. Cayce Clerk CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB, Plaintiffs–Appellees, versus PHIL BRYANT, in His Official Capacity as Governor of the State of Mississippi; JIM HOOD, in His Official Capacity as Mississippi Attorney General, Defendants–Appellants. Appeal from the United States District Court for the Southern District of Mississippi Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges. JERRY E. SMITH, Circuit Judge: The plaintiffs are two same-sex couples and an advocacy group that works to promote the interests of lesbian, gay, bisexual, and transgender persons. The couples seek to marry in Mississippi or to have their marriage in another state recognized in Mississippi. The plaintiffs sued the state defendants pursuant to 42 U.S.C. § 1983 seeking an injunction and a declaration Case: 14-60837 Document: 00513102310 Page: 2 Date Filed: 07/01/2015 No. 14-60837 that Article XIV, Section 263A of the Mississippi Constitution and Section 93-1-1(2) of the Mississippi Code violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. On November 25, 2014, the district court issued a preliminary injunction in favor of the plaintiffs. The court stayed its order for fourteen days; this court on December 4, 2014, stayed the district court’s order pending appeal. The state appealed, and after full briefing, including participation by numerous amici curiae, this court heard expanded oral argument on January 9, 2015. While this appeal was under submission, the Supreme Court decided Obergefell v. Hodges, No. 14-556, 2015 U.S. LEXIS 4250 (U.S. June 26, 2015). In summary, the Court declared 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. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and now is overruled, and the State laws challenged by petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. at *41–42. “It follows that the Court must also hold—and it now does hold— that there is no lawful basis for a State to refuse to recognize a lawful samesex marriage performed in another State on the ground of its same-sex character.” Id. at *50. Having addressed fundamental rights under the Fourteenth Amendment, the Court, importantly, invoked the First Amendment, as well: Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations 2 Case: 14-60837 Document: 00513102310 Page: 3 Date Filed: 07/01/2015 No. 14-60837 and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. Id. at *48–49. Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit 1 and should not be taken lightly by actors within the jurisdiction of this court. We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them. This court sought and promptly received letter advisories from plaintiffs and the state, asking their respective positions on the proper disposition in light of Obergefell. Because, as both sides now agree, the injunction appealed from is correct in light of Obergefell, the preliminary injunction is AFFIRMED. This matter is REMANDED for entry of judgment in favor of the plaintiffs. The court must act expeditiously on remand and should enter final judgment on the merits (exclusive of any collateral matters such as costs and attorney fees) by July 17, 2015, and earlier if reasonably possible. The stay entered by If it were suggested that any part of the quoted passages is obiter dictum, we need only recall that although “[w]e are not bound by dicta, even of our own court [,] [d]icta of the Supreme Court are, of course, another matter.” United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980). “[W]e give serious consideration to this recent and detailed discussion of the law by a majority of the Supreme Court.” Geralds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013) (Reavley, J.). 1 3 Case: 14-60837 Document: 00513102310 No. 14-60837 this court is VACATED. 2 The mandate shall issue forthwith. 2 Any pending motions are denied as moot. 4 Page: 4 Date Filed: 07/01/2015