Miss. Supreme Court rules same-sex divorce legal

The Mississippi Supreme Court today acknowledged the divorce of a same-sex couple under Obergefell v. Hodges, the U.S. Supreme Court ruling that legalized same-sex marriage.

In the process, two justices made claims that states may not have to follow U.S. Supreme Court rulings when they believe the court is creating policy as opposed to interpreting the law.

Seven justices agreed with the ruling that same-sex divorce is legal and should be recognized. Remaining Justices Jess Dickinson and Josiah Coleman objected.

Dickinson acknowledged in his dissent, signed by Coleman, that the U.S. Supreme Court has ruled in favor of same-sex marriage and Attorney General Jim Hood has informed the court that, following Obergefell v. Hodges, he finds Mississippi's ban on same-sex marriage unconstitutional. Dickinson, however, goes on to question whether the U.S. Supreme Court exceeded the authority of its court.

"And while it is true that the Supremacy Clause of the United States Constitution obligates state courts to follow the United States Supreme Court's constitutional interpretations, even when they disagree with those interpretations, there is substantial support from legal scholars that state courts are not required to recognize as legitimate legal authority a Supreme Court decision that is no way a constitutional interpretation, but rather is a legislative act by a judicial body that is — as Chief Justice Roberts put it — a decision that "has no basis in the Constitution or (United States Supreme Court) precedent," Dickinson writes.

Chief Justice of the United States John Roberts wrote the dissent in Obergefell v. Hodges, which is why Matt Steffey, constitutional law expert and Mississippi College of Law professor, doesn't believe Roberts' opinion can be used for a valid argument.

"A dissent is the opinion of the side that lost," Steffey said.

Steffey said Dickinson is simply saying the U.S. Supreme Court got it wrong. Steffey also said Dickinson’s argument is the same one that the Ku Klux Klan, the White Citizens Council and former Governor Ross Barnett used to oppose Brown v. Board of Education.

"It’s exactly the same line of argument considered and rejected by our founding fathers," Steffey said. "I'm talking about the line of thinking where every person gets to decide for themselves what the law means instead of following binding decisions of the court."

In 2013, a judge in DeSoto County prevented Lauren Beth Czekala-Chatham from divorcing her wife, whom she married in California, because of Mississippi's same-sex marriage ban.

Chief Justice William Waller and Justices Michael Randolph, Ann Lamar, Randy Pierce and David Chandler wrote a short order in favor of Czekala-Chatham, overturning the Desoto County Chancery Court ruling. Justices Leslie King and James Kitchens agreed with the ruling but wrote a separate order.

In Dickinson's dissent, he acknowledges the Chancery Court of DeSoto County's refusal to grant a divorce to the appellant.

Dickinson attempted to prove his argument that the Supreme Court is able to "exceed its authority," with what he called an "absurd hypothetical" about Congress taking all guns from gun owners.

"One example of this view, for instance, is that if the Supreme Court concluded that gun violence impedes the flow of interstate commerce, leading it to interpret the Commerce Clause as granting the Congress the power to confiscate all privately owned guns, who would feel bound to follow it? This absurd hypothetical, some believe, debunks any notion that it is impossible for the Supreme Court to exceed its authority. So in the context of today's case, the question becomes whether it has done so in Obergefell," Dickinson wrote.

Justice Coleman wrote a separate statement that used a hypothetical situation in which the Supreme Court ruled every household must own a zoo animal.

"I would be writing the same statement and expressing the same concerns if faced with a United States Supreme Court decision that held the Constitution of the United States required every household in America to own a giraffe," Coleman wrote.

In his statement, he concludes that requiring households to own giraffes has "no constitutional support."

"This is not what you would expect from a serious-minded judge," Steffey said.

The Mississippi Supreme Court heard arguments in Czekala-Chatham's case in January, but the court took almost four months to deliberate after Hood asked the court to overturn the Desoto ruling following the finding by the U.S. Supreme Court in June that same-sex marriage bans are unconstitutional.

"Because of the attorney general's capitulation, the order says that 'no contested issues remain for resolution,' and that the chancellor should reverse himself simply because the attorney general no longer wishes to defend Section 263A of the Mississippi Constitution. I do not agree," Dickinson wrote.

Contact Anna Wolfe at (601) 961-7326 or awolfe@gannett.com. Follow @ayewolfe on Twitter.