Another Mississippi ‘trigger law' to keep an eye on as Supreme Court deliberates: gay marriage

by Bobby Harrison, Mississippi Today
May 15, 2022

The 2007 law that would ban abortions in Mississippi if the Supreme Court overturns Roe v. Wade isn't the only so-called “trigger law” language the state has.

If the U.S. Supreme Court ever overturns its 2015 ruling legalizing gay marriages, Mississippi has an existing law — even a provision in the state Constitution — banning same-sex marriage.

The language is simple and to the point.

“Marriage may take place and may be valid under the laws of this state only between a man and a woman,” the Mississippi law reads. “A marriage in another state or foreign jurisdiction between persons of the same gender, regardless of when the marriage took place, may not be recognized in this state and is void and unenforceable under the laws of this state.”

Seem farfetched that gay marriage could be repealed?

Perhaps, but numerous legal scholars have at least raised the specter that the same reasoning found in the recently leaked draft Supreme Court opinion that would overturn Roe v. Wade could be extended to deny a national right not only to an abortion, but to same-sex marriage, the use of contraceptives and even interracial marriage.

In its original abortion decision, the Supreme Court, in simplistic terms, cited a right to privacy and to other rights that are not explicitly mentioned in the U.S. Constitution.

The recently leaked Supreme Court draft opinion says Roe v. Wade should be overturned since the right to an abortion is not specifically found in the Constitution. If the draft opinion becomes the final ruling, it would not outlaw abortion; instead, it would leave it to each individual state to decide.

Mississippi has the aforementioned “trigger law” that would be enacted if Roe v. Wade is overturned. Similarly, there is also is a Mississippi law on the books banning same-sex marriages in the state.

Maybe it's not so farfetched to think that some politicians would try to convince the nation's highest court to use the same logic that was used to overturn Roe v. Wade to rescind the national right for same-sex couples to marry and instead leave it up to each state to decide. After all, if Roe v. Wade ultimately is overturned, that's how it would happen — with politicians passing laws that blatantly fly in the face of Roe v. Wade in the hopes that the justices will reverse the ruling.

The Supreme Court approved gay marriage by a slim 5-4 margin in the 2015 Obergefell v. Hodges case, with conservative justices arguing that the right to gay marriage was not in the U.S. Constitution. That is essentially the same argument for overturning Roe v. Wade.

And there are more conservative justices now than there were in 2015.

The state approved placing the ban on gay marriage in the Mississippi Constitution in 2004. It was overwhelmingly approved by both chambers of the Legislature. The vote in the Senate was unanimous.

Then it was approved by 86% of the state's electorate in the 2004 November general election. No county voted against the provision placing a ban on gay marriage in the state Constitution.

And to highlight what a hot-button issue gay marriage remains in Mississippi, legislators in 2016 passed a bill that allows public officials to opt out of providing services to same-sex couples, such as issuing a marriage license, and allows private businesses not to provide services to gay couples. That legislation, which still ensures the state will issue a marriage license to a gay couple even if a clerk opts out of providing the service, has not been overturned by the federal courts.

In addition, polling in 2017 by the Public Religion Research Institute found only three states where a majority or plurality opposed gay marriage: Mississippi, Alabama and West Virginia.

Granted, at least one key obstacle to the Supreme Court overturning gay marriage is that there are already tens of thousands of couples who have married since the 2015 ruling. What would happen to those marriages? Still, do not be surprised if some politicians attempt to overturn gay marriage if Roe v. Wade is reversed.

In 1964, the Supreme Court also ruled state bans on interracial marriage unconstitutional. Even with that ruling, the provision in the Mississippi Constitution banning interracial marriage remained on the books until 1986, when the Legislature gave voters an opportunity to remove it.

Voters did approve the provision removing the interracial marriage prohibition, but by a significantly closer margin — 52% to 48% — than the margin by which most constitutional amendments pass in the state.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.