“The Process of Marriage Equality” Cited in Post-Obergefell Opinion by Southern District of Mississippi

June 28th, 2016

Mississippi HB 1523 would allow county clerks to recuse from issuing marriage licenses to same-sex couples based on religious objections. The Campaign for Southern Equality sought to reopen and expand the injunction granted by the Southern District of Mississippi in 2015, after Obergefell was decided, to enjoin enforcement of HB 1523. (See Religion Clause and Buzzfeed for more background). Yesterday, the court granted limited relief, and allowed the case to be reopened to address the changes to the “landscape of Mississippi’s marriage licensing laws” by HB 1523.

The court found that HB 1523 “may in fact amend Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell.” Therefore, the “significant change” warrants reopening the case to reconsider the Permanent Injunction. One of the key questions for the court was whether the 81 circuit clerks, who were not parties to the original action, are bound by the permanent injunction.

The court concluded that they are not bound, citing The Process of Marriage Equality, authored by Howard Wasserman and me.


This is exactly right. An injunction does not bind non-parties. It only serves as precedent, which can be the basis for a subsequent contempt action. Clerks in other counties that do not issue the licenses to same-sex couples will almost certainly be held in contempt–and be subject to paying fees–but the 2015 injunction is not enough, standing by itself, to cause that effect. This is such a fundamental misconception of civil procedure, and I am so, so glad the court got this neutral principle of procedure correct.