By Sid Salter

In my recent column on House Bill 1523 and the constitutional reality of legal same-sex marriage in Mississippi, I chose the wrong verb in describing Mississippi Attorney General Jim Hood’s official directives to the state’s circuit clerks regarding the issuing of marriage licenses.

Here’s what I wrote last week: “On the subject of same-sex marriage, the Supreme Court in a 5-4 decision in the 2015 landmark Obergefell v. Hodges case declared that same-sex couples have a constitutional right to marry that is guaranteed by both the Due Process Clause and Equal Protection Clause of the 14th Amendment.

“That decision made same-sex marriage legal in Mississippi — or at least impeded Mississippi from violating the federal constitutional right to same-sex marriage by denying marriage licenses to same-sex couples. About a week later, Mississippi Attorney General Jim Hood ordered circuit clerks in the state to issue marriage licenses to same-sex couples.”

Through his public information officer, Rachel Ring, Hood asked me to revisit the word “ordered” in that second paragraph: “While the attorney general did send clerks a letter to notify them of the Supreme Court decision, he did not issue an ‘order’ and has no authority to do so.”

The point of Hood’s complaint about that word is simple — it’s the wrong word. Mississippi’s attorney general indeed doesn’t possess the legal authority to “order” the circuit clerks to issue marriage licenses.

After the U.S. Supreme Court decided the Obergefell case, Hood’s office sent a notification to the state’s circuit clerks that Hood later admitted in a second letter to the clerks “seems to have been misinterpreted as prohibiting circuit clerks from issuing marriage licenses to same sex couples. The statement was merely meant to explain that an order of the Fifth Circuit would be necessary to lift the stay.”

Following a lengthy explanation of the impact of the U.S. Supreme Court case on the orders and procedural activities of the Fifth U.S. Circuit Court of Appeals and the U.S. Districts Courts in Mississippi, Alabama, Texas and Georgia related to that decision, Hood’s second notification to the circuit clerk addressed the topic of how the clerks might choose to move forward:

“Nevertheless, regardless of the status of the case before the Fifth Circuit, Obergefell is the law of the land. If a clerk has issued or decides to issue a marriage license to a same-sex couple, there will be no adverse action taken by the attorney general against that circuit clerk on behalf of the state. In such cases, it might be wise to advise same-sex applicants that the validity of a marriage licenses issued prior to the stay being legally lifted might be contested in any potential divorce action or in future estate proceedings. 

“On the other hand, a clerk who refuses to issue a marriage license to a same-sex couple could be sued by the denied couple and may face liability. Whatever course you decide to take, you should consult with the county board attorney about the issuance of licenses in light of the Supreme Court’s opinion on Friday.”

Ironically, Hood’s now a defendant in one of two federal lawsuits filed against the state regarding HB1523. One lawsuit, filed by the American Civil Liberties Union (ACLU), seeks to declare the bill unconstitutional.

A second federal lawsuit filed by the Campaign for Southern Equality, seeks to reopen its prior lawsuit that overturned Mississippi’s same-sex marriage ban and focuses on the provision in HB1523 that allows those same Mississippi circuit clerks and deputy clerks to “recuse” themselves from issuing marriage licenses if doing so conflicts with their personal religious beliefs.

Perhaps more ironic now that he’s been named as a defendant in one of those federal lawsuits is Hood’s admonition after Gov. Phil Bryant signed HB1523 into law: “Any lawsuit challenging the constitutionality of HB1523 will have to be evaluated on a case-by-case basis.

We would caution government officials and others that HB1523 does not override federal law or constitutional rights. If a person or government official violates a federal statute or constitutional provision, House Bill 1523 will not protect that official from a federal lawsuit or from potential personal liability under federal law.”

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.