Their 26-page statement, written by Justice Leslie D. King and joined by Justice James Kitchens, was attached to an order by a six-member court majority.
The order seeks more briefs on the question of whether a same-sex couple legally married in another jurisdiction can get a divorce in Mississippi.
Justice David Chandler objected to more briefs, saying there is no need to delay a ruling that the divorce cannot be granted under Mississippi’s constitution.
King agreed there should be no delay, but he and Kitchens said the same-sex marriage ban should be struck down and the divorce should proceed.
In January, the Mississippi Supreme Court heard arguments in the case of Lauren Czekala-Chatham, who is seeking a divorce from Dana Ann Melancon. They were married in California in 2008.
Article continues belowThe state says the divorce cannot be granted because the Mississippi Constitution forbids the performance of same-sex marriage in the state and forbids recognition of same-sex marriages legally performed elsewhere.
Two lesbian couples filed a federal lawsuit last year challenging Mississippi’s ban on gay marriage. U.S. District Judge Carlton Reeves ruled in November that the state’s ban is unconstitutional, but he ordered that same-sex marriages not be performed while the state seeks to overturn ruling.
The 5th U.S. Circuit Court of Appeals in New Orleans heard arguments in early January in that case, and on bans in Louisiana and Texas, but has not ruled.
The week before the Mississippi hearing about the divorce case, the U.S. Supreme Court agreed to hear arguments about the legality of gay marriage, based on cases from Kentucky, Michigan, Ohio and Tennessee. Several justices on the Mississippi court asked whether a stay would be appropriate to see how the U.S. court ruled.
Thursday’s order states that both sides in the case have agreed that a delay in the case would be appropriate until the U.S. Supreme Court rules.
But Chandler said the order for more briefs causes a delay that “wastes Czekala-Chatham’s resources as well as the resources of the State of Mississippi.” In his one-page objection, he cited the state constitution and statutes in saying the divorce plainly cannot be granted.
Article continues belowKing disagreed with Chandler’s conclusion but agreed that the briefing order was a needless delay.
“I do not claim to read the collective mind of this Court and its reasoning in requiring this supplemental briefing,” King wrote. “But I can discern only one benefit accruing to this Court from this supplemental briefing. That benefit is pushing the responsibility for deciding a sensitive and highly emotional issue to the United States Supreme Court.”
While Chandler concentrated on the state constitution, King’s statement dealt with provisions of the U.S. Constitution. He said the bans on gay marriage and the recognition of such marriages “clearly violate the Equal Protection Clause of the Fourteenth Amendment, and this Court should not hesitate to find them unconstitutional.”
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