A Courageous Defender of the Rule of Law in a State Plagued by its Ugly Past

U.S. District Judge Carlton Reeves has been in the news recently for his eloquent decision striking down Mississippi’s odious anti-gay “religious freedom” law, HB 1523, which would have allowed county clerks to refuse to issue marriage licenses to same-sex couples and which would have given “special rights” to Christians to discriminate against LGBT people in numerous ways. But quite apart from his decisions regarding the “religious freedom” law and his earlier, equally eloquent decision striking down Mississippi’s ban on same-sex marriage, Reeves has emerged as a courageous defender of the rule of law in Mississippi and an exemplar of the possibility of progress in a state that continues to be plagued by remnants of an ugly past.

Reeves was born in 1964, the same year that James Earl Chaney, Andrew Goodman, and Michael Schwerner, three young civil rights workers, were murdered in Neshoba County, Mississippi, by members of the Ku Klux Klan. The killing of civil rights workers was hardly surprising. Indeed, it was quite predictable for many had been martyred in the quest for civil rights in the South, particularly in Mississippi, where brutal oppression was especially prevalent. Nevertheless, the callous murders of these idealistic young men pricked the nation’s conscience and helped secure necessary support to pass the landmark Civil Rights Act of 1964.

The law prohibited discrimination based on race, color, religion, sex, and national origin. More pointedly, it was designed to end racial segregation in schools, in the workplace, and in facilities that served the general public. For a Black child like Reeves, who grew up in Yazoo City, Mississippi, “the gateway to the Delta,” this law would prove transformative, though its effects were by no means immediate since political leaders and “white citizens councils” throughout the South — which had vowed “segregation now, segregation tomorrow, segregation forever” — resisted it, often violently but also simply by refusing to comply with it. It was many years before rural areas of the South integrated their schools and public accommodations. And even after a measure of integration had been achieved, soul-crushing racism remained a pervasive fact of daily life for decades longer.

(Nina Simone’s powerful protest song “Mississippi Goddam” captures the anger and frustration Mississippi’s “massive resistance” to civil rights inspired in those who yearned for justice during the Civil Rights era):

Just as conservative Christians today moan that the Supreme Court ruling granting same-sex couples the right to marry somehow violates their freedom of religion, so segregationists denounced what they called the “civil wrongs bill,” casting themselves as victims and complaining that their rights were infringed by having to dine with Blacks in restaurants, attend school with them, and share other public facilities — like libraries and swimming pools — from which they had previously been excluded.

Yazoo City in the 1960s was overwhelmingly Black, yet its entire power structure, including all of its elected officials, was white. Blacks who tried to vote before the Voting Rights Act of 1965 was enforced could expect to suffer economic, physical, and emotional violence in retaliation. As Reeves later recalled, during his childhood Yazoo City was a town where “everybody knew their place. … It was divided by railroad tracks, and you knew where you could and could not go.”

Reeves knew firsthand the indignities of American apartheid and the humiliation of being a second-class citizen. He could not escape an acute awareness of the systemic unfairness of Mississippi society. Those experiences not only shaped his view of the world in fundamental ways, but they also deepened his understanding of the role of the judiciary.

Rather than succumb to despair in the face of injustice, Reeves worked hard to improve his status in life and to overcome the limitations that others would place on him. A member of Yazoo City’s first integrated high school class, he excelled academically and became the first member of his family to attend a four-year college.

In 1986, he graduated magna cum laude from Jackson State University, where he majored in political science. He then attended the University of Virginia Law School, from which he graduated in 1989. At Virginia he received the Mary Claiborne and Roy H. Ritter Fellowship in Recognition of Outstanding Honor, Character and Integrity.

One lesson he learned at Virginia was that racism was by no means confined to Mississippi. During his second year of law school, a fraternity hung a banner on its building reading “No Jews, No Wops, and No Nigga Babes” to warn “undesirables” from attending their dances.

As recounted in Alan B. Morrison and Diane T. Chin’s “Beyond the Big Firm: Profiles of Lawyers Who Want Something More“: 

[Reeves], along with Glenn Walters, a law school classmate, challenged the fraternity’s actions through the school’s judiciary committee. Exhibiting skills that would one day make him an effective litigator, Carlton and Walters found several black freshman female students from South Carolina who had been offended and intimidated by the racist announcement and prepared a legal assault against the posting on their behalf. The two law students presented the students’ case to the judiciary committee — but lost. The committee found that the fraternity brothers had a First Amendment right to use such language in promoting their parties. Reeves said of the judiciary committee: “They had no respect for the feelings of African-Americans on campus.”

Following law school, Reeves accepted a clerkship with Justice Reuben Anderson, the first African-American to serve on the Mississippi Supreme Court. (When Anderson began practicing law in Mississippi in 1967, he felt it necessary to carry his diploma with him to courthouses because many judges were skeptical of a Black person claiming to be an attorney. Prior to 1956, Blacks were prohibited from attending law schools in Mississippi.)

Following his clerkship, Reeves accepted an associate’s position at Phelps, Dunbar, a large regional law firm based in New Orleans with locations in Louisiana, Mississippi, and Texas.

In 1995, he left Phelps, Dunbar to accept a position as Assistant U.S. Attorney for the Southern District of Mississippi and as Chief of the Civil Division. In that position he supervised the daily trials and appellate litigation of other attorneys.

In 2001, Reeves, with two partners, established the firm Piggott Reeves Johnson. He focused on state and federal litigation, but also served on the boards of the ACLU of Mississippi, the Mississippi Center for Justice (a nonprofit, public interest law firm committed to advancing racial and economic justice), and the Magnolia Bar Association (a predominantly black bar association devoted to furthering civil and human rights in Mississippi).

Reeves was nominated as judge for the Southern District of Mississippi by President Barack Obama on April 28, 2010. His appointment, which was supported by Republican U.S. Sens. Cochran and Wicker, was confirmed by the Senate on a voice vote on Dec. 19, 2010. At his investiture ceremony on April 15, 2015, he was sworn in to office by retiring Judge William H. Barbour Jr., also from Yazoo City. As a teenager, Reeves worked as a janitor cleaning Barbour’s office in the Yazoo City Courthouse.

The Murder of James Craig Anderson

The best known case (other than the same-sex marriage and “religious freedom” cases) with which Judge Reeves has been associated is the grisly murder on June 26, 2011, of James Craig Anderson, a 49-year-old African-American gay man. Four white teenagers attacked Anderson, robbed him and repeatedly beat him while shouting racial epithets, before one of them, Deryl Dedmon, ran over him with a truck. Dedmon and his accomplices faced murder and other charges in state court, where they were ultimately convicted.

https://www.youtube.com/watch?v=vP2hSb4rlXc

But soon after the murder the FBI began an investigation that led to the indictment of 10 individuals, including Dedmon, on hate crime and conspiracy charges committed against African-Americans in 2011 and 2012, and the murder of Anderson was classified as a racially motivated hate crime. Eventually, all those indicted pleaded guilty.

It was Judge Reeves’ responsibility to sentence Dedmon and two other young men on the federal criminal charges. In a remarkable pre-sentencing speech on Feb. 10, 2015, he took the opportunity to meditate on Mississippi’s tortured history of racial violence before observing:

“A toxic mix of alcohol, foolishness and unadulterated hatred caused these young people to resurrect the nightmarish specter of lynchings and lynch mobs from the Mississippi we long to forget. Like the marauders of ages past, these young folk conspired, planned, and coordinated a plan of attack on certain neighborhoods in the city of Jackson for the sole purpose of harassing, terrorizing, physically assaulting and causing bodily injury to black folk. They punched and kicked them about their bodies — their heads, their faces. They prowled. They came ready to hurt. They used dangerous weapons; they targeted the weak; they recruited and encouraged others to join in the coordinated chaos; and they boasted about their shameful activity. This was a 2011 version of the nigger hunts [of the past].”

In his conclusion, Judge Reeves noted that the Old Mississippi is not the same as the New Mississippi, pointing out:

“The sadness of this day also has an element of irony to it: Each defendant was escorted into court by agents of an African-American United States Marshal, having been prosecuted by a team of lawyers which includes an African-American AUSA [assistant U.S. attorney] from an office headed by an African-American U.S. attorney — all under the direction of an African-American attorney general, for sentencing before a judge who is African-American, whose final act will be to turn over the care and custody of these individuals to the BOP [Federal Bureau of Prisons] — an agency headed by an African-American.”

He added:

“Today we take another step away from Mississippi’s tortured past … we move farther away from the abyss. Indeed, Mississippi is a place and a state of mind. And those who think they know about her people and her past will also understand that her story has not been completely written. Mississippi has a present and a future. That present and future has promise. As demonstrated by the work of the officers within these state and federal agencies — black and white, male and female, in this Mississippi they work together to advance the rule of law. Having learned from Mississippi’s inglorious past, these officials know that in advancing the rule of law, the criminal justice system must operate without regard to race, creed or color. This is the strongest way Mississippi can reject those notions — those ideas which brought us here today.”

Although Judge Reeves did not mention it in his speech, he undoubtedly also knew that the family of the murder victim, James Craig Anderson, had recently suffered another injustice, one based not on his race but on his sexual orientation, one inflicted not by his murderers but by the state of Mississippi. For more than 17 years, Anderson had been in a domestic partnership with James Bardfield, with whom he was rearing a four-year-old child. Because Bardfield was the child’s legal guardian and Mississippi law prohibited recognition of same-sex relationships, neither Anderson’s partner nor his daughter were able to be participants in a wrongful death lawsuit filed on behalf of Anderson’s family in 2011.

Anderson was not targeted for murder because of his sexual orientation, which was not known by his assailants, but he and his family were further victimized by the hateful laws of Mississippi, which adamantly refused to acknowledge his relationship with his partner and their daughter.

Campaign for Southern Equality v. Bryant

Judge Reeves’ knowledge of Mississippi’s history of mistreatment of gay men and women is a hallmark of his remarkable rulings on same-sex marriage and “religious freedom.”

In one of the most eloquent and thorough rulings concerning same-sex marriage in the aftermath of the 2013 Supreme Court ruling in Windsor, Judge Reeves decided a case known as Campaign for Southern Equality v. Bryant, which was brought by lead counsel Roberta Kaplan on behalf of two lesbian couples and other same-sex couples in Mississippi who were not allowed to marry or to have their out-of-state marriages recognized.

Reeves concluded:

“Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”

What distinguished Judge Reeves’ decision from others that reached similar conclusions following Windsor was his unflinching approach to Mississippi’s long, sad history of homophobia. The decision narrates a sorry story of discrimination and contempt for gay and lesbian citizens in the state.

He notes in particular how Bayard Rustin and other prominent gay civil rights activists faced harassment because of their sexual orientation, and how gay men and lesbians were mistreated by white and Black Mississipians alike.

Judge Reeves quoted Faulkner as he noted that this history is not only something that happened a long time ago:

“‘The past is never dead. It’s not even past.’ . . . That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, ‘other’ people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination.”

In rejecting the notion that the judiciary should bow to the democratic voice of the people in referenda, Judge Reeves wrote:

“Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.”

He explained the unique role the judiciary plays in this process.

“The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.

“This was always a risk of our representative democracy. James Madison wrote that ‘measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.’ … He and his colleagues ‘knew times can blind us to certain truths.’ … Mistakes would be made.

“In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show ‘that the laws once thought necessary and proper in fact serve only to oppress.’ … The judiciary has been charged with hearing these claims for more than two centuries. … The judiciary enforces individual rights against the tyranny of the majority. It does not matter how political the issue; how reviled the individual; or how vocal, politically savvy, and passionate the majority. That is its duty under Article III of the United States Constitution.”

Judge Reeves concluded by encouraging Mississippians to embrace change:

“The Fourteenth Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi’s traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights. Today’s decision may cause uneasiness and concern about the change it will bring. But ‘[t]hings change, people change, times change, and Mississippi changes, too.’ The man who said these words, [former segregationist Mississippi Governor] Ross R. Barnett, Jr., knew firsthand their truth.”

He added:

“This court joins the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law. The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children. Mississippi’s statute and constitutional amendment violate the Fourteenth Amendment to the United States Constitution.”

Religious Freedom Cases

On April 5, 2016, Mississippi Governor Phil Bryant signed into law the Religious Liberty Accommodations Act, a sweeping law enacted in response to the 2015 Supreme Court ruling in Obergefell. The new law would have granted individuals and organizations immunity from any state penalties if they were acting on their sincerely held religious beliefs that: “Marriage is or should be recognized as the union of one man and one woman; sexual relations are properly reserved to such a marriage; and male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Under the law, which many described as a “license to discriminate,” organizations and individuals could deny LGBT people (as well as sexually active, single heterosexuals) marriage, adoption and foster care services; fire or refuse to employ them; and decline to rent or sell them property. Medical professionals could refuse to participate in treatments, counseling, and surgery related to “sex reassignment or gender identity transitioning.”

Businesses could deny wedding services (such as photography, videography, wedding planning, printing, floral arrangements, dress making, cake or pastry artistry, wedding venue rentals, limousine or other car-service rentals, jewelry sales or services, or similar accommodations), while employers and school administrators could establish “sex-specific standards or policies concerning employee or student dress or grooming” and to dictate access to bathrooms, spas, locker rooms, and “other intimate facilities and settings.”

The law would also have allowed county clerks, registrars, judges, magistrates, justices of the peace and their deputies to recuse themselves from issuing marriage licenses or performing marriages based on their religious beliefs.

Bryant signed the bill into law despite an outcry from LGBT organizations and from local businesses, who feared a tourist boycott, as well as from some celebrities who refused to perform in the state. A number of states and municipalities prohibited official travel to Mississippi as a consequence of the threat the bill posed to LGBT citizens.

As soon as the bill was signed, legal organizations and individuals began pondering how best to challenge the law, which was scheduled to go into effect on July 1.

The first target of the bill was the provision that allowed state officials to recuse themselves from issuing marriage licenses and from performing marriages. Kaplan, who was the chief counsel in the marriage case, noted that Judge Reeves’ permanent injunction in that case barred “all agents, officers, employees, and subsidiaries” of Mississippi from treating same-sex couples differently from opposite-sex couples.” Clearly, HB 1523 was in violation of that court order. She thus sought information from state officials as to how they planned to enforce the new law and how it would not violate Judge Reeves’ injunction. She then filed a motion to reopen the marriage case.

Meanwhile, other suits were filed targeting the Religious Liberty Accommodations Act as a whole. The plaintiffs included not only same-sex couples who would be affected by the new law, but also people whose religious beliefs were not protected under the law. To protect some religious beliefs but not others would violate their religious freedom, as well as the Establishment Clause of the First Amendment, they argued. Judge Reeves consolidated these suits into a case known as Barber v. Bryant.

On June 27, Judge Reeves addressed the question of whether the recusal of marriage officials as authorized in the new law violated his permanent injunction in the marriage case. In a 16-page decision, he found that the recusal scheme was simply the state’s attempt to make an “end run” around Obergefell. In amending the permanent injunction in the marriage case to include specifically that opposite-sex and same-sex couples must be treated the same, Judge Reeves declared unambiguously that the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” He added:

“Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit — by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.”

Three days later, only minutes before HB 1523 was scheduled to go into effect, Reeves declared the entire law unconstitutional.

In his beautifully written opinion, he emphatically noted that the law grants “special rights” to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons:

“That violates both the guarantee of religious neutrality and the promise of equal protection of the laws. The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected — the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and … adherents that they are insiders, favored members of the political community.’ … And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

The 60-page decision is as much a history lesson as it is a disquisition on law. Judge Reeves observes early in the ruling that: “In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction.”

He recounts the history that led to Obergefell and then explains how HB 1523 is a reaction (or overreaction) to it. At the same time, he also explains, sometimes in footnotes, how the reaction to gay rights victories by Mississippi politicians was anticipated by the reaction of Mississippi politicians to challenges to the state’s Jim Crow laws. For example, he demonstrates the similarity between politicians who based their opposition to same-sex marriage on the Bible to earlier politicians who justified segregation by reference to religious views; he also parallels Gov. Bryant’s well-publicized remark that he is willing to be crucified before abandoning his support for “religious freedom” to a Mississippi judge who called on others to disobey Brown v. Board of Education by saying, “We have, through our forefathers, died before for our sacred principles. We can, if necessary, die again.”

Particularly interesting is Judge Reeves’ demonstration of how animus influenced the passage of HB 1523. He quotes the words of the legislators who ratified the law to deduce that its very purpose was to harm LGBT citizens, to deprive them of equal rights and equal dignity: 

“The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status. … [D]eprivation of equal protection of the laws is HB 1523’s very essence.”

When Judge Reeves turns to the question of whether HB 1523 violates the Establishment Clause by preferring one set of religious beliefs to another, he offers an illuminating history of the Establishment Clause and its jurisprudence.

Then he declares that, “On its face, HB 1523 constitutes an official preference for certain religious tenets.” Thus, Christian Mississippians with religious beliefs contrary to them become second-class Christians. Their exclusion from HB 1523 sends a message “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members.” Listing just a few examples, he notes that HB 1523 “favors Southern Baptist over Unitarian doctrine, Catholic over Episcopalian doctrine, and Orthodox Judaism over Reform Judaism doctrine.”

Moreover, Judge Reeves, remarks, HB 1523 constitutes a governmental interference in religious debates within denominations as well as between them:

“It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (‘Thou shalt not lie with mankind, as with womankind: it is abomination.’) versus Leviticus 21:14 (‘A widow, or a divorced woman, or profane, or an harlot, these shall he not take.’).”

In declaring the odious law unconstitutional, Judge Reeves writes stirringly: “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But HB 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”

A man of his time and place, Judge Reeves gives hope that a New Mississippi in which equal rights under the law is more than a slogan can supplant the Old Mississippi of violence and oppression. He not only himself epitomizes the promise inherent in Mississippi’s present and future, but he has also not hesitated to use the power of his office to advance that promise.