Last week’s Order and two written objections in Mississippi’s gay divorce case is fascinating from both a procedural and substantive standpoint. Here is the Court’s order.

The legal issue in the case is whether a gay Mississippi resident who was lawfully married in another state may obtain a divorce in Mississippi. The State of Mississippi–maintaining its time honored tradition of being on the wrong side of history–says no.

The State argues that since Mississippi does not recognize same sex marriages, it can’t grant same sex divorces. A humorous twist on this argument raised by Justice Dickinson at oral argument was the question of whether Mississippi should be encouraging same sex divorces based on its public policy againt same sex marriage.

The Court did not decide the issue. Instead, the Court asked for more briefing on the question of:

 In light of Mississippi’s public policy of not allowing or recognizing a marriage between two persons of the same gender, what rational basis supports the interpretation or application of a law or constitutional provision so as to prohibit Mississippi courts from granting a divorce to a Mississippi resident who was lawfully married in another state to a person of the same gender? 

Six justices agreed with the Order. Justice Chandler disagreed, without indicating how he would vote on the issue. Justice King disagreed with a 25 page opinion explaining why Mississippi’s ban on same sex marriage violates the Equal Protection Clause. Justice Kitchens joined Justice King’s opinion.

Footnote 4 of Justice King’s opinion presents a real problem for gay marriage opponents. The footnote is to the following:

The State argues that Mississippi’s laws pass muster under rational basis review, justifying them with the responsible procreation theory, tradition [Mississippi code for bigotry], and a ‘wait and see approach.’ It also argues that Windsor stands for the proposition that states control the definition of marriage.  

Here’s the footnote (in part):

Miscegenation statutes were justified on eerily similar grounds…

Ouch! That’s just not very sporting. Lumping discrimination of gays in with Mississippi’s embarrassing history of racial discrimination is sort of like standing here while someone bad mouths the United States of America. Image result for same sex marriage

I get the Court wanting to let this issue play out in the U.S. Supreme Court–if that’s what is going on here as Justice King argues. And I’m not going to quibble with it. The issue does need to be resolved by the U.S. Supreme Court.

But we all know where this is going. Same sex marriage (and divorce) will soon be legal in all 50 states. The sky will not fall. It will just be another bad tradition biting the dust.

Here is coverage on the decision on TBA. I wonder what NMC would have written on this decision?