author: LAMAR, JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    Arvin D. ROCHELL a/k/a Arvin Dale Rochell v. STATE of Mississippi
    NO. 2015-CP-01151-SCT
    Supreme Court of Mississippi.
    12/01/2016
    Rehearing Denied March 23, 2017
    ATTORNEY FOR APPELLANT: AR-VIN D. ROCHELL (PRO SE)

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
   LAMAR, JUSTICE,

FOR THE COURT:

¶ 1. Arvin Rochell, pro se, appeals the Calhoun County Circuit Court’s denial of his petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1992, Arvin Rochell was indicted for two counts of capital murder for killing Hazel and Nell McMahan, and for one count of arson. Rochell v. State, 748 So.2d 103, 105 (Miss. 1999). In 1994, Rochell pleaded guilty to one reduced count of murder and to arson. Id. at 105-06. The trial judge sentenced him to life for the murder and to twenty years for the arson, to run concurrently. Id. at 106,

¶ 3. Rochell filed the petition for post-conviction relief at issue in this appeal on May 12, 2015. Rochell styled his petition as a “Motion to Clarify Parole Eligibility” and argued that he was “being unlawfully held in custody due to [the] Mississippi Department of [Corrections’] holding that he is ineligible for parole under [Mississippi Code Section] 47-7-18(l)[.]” Rochell cited the first part of Section 47-7-18(1), which states that “Each inmate eligible for parole pursuant to Section 47-7-3, shall be released from incarceration to parole supervision on the inmate’s parole eligibility date, without a hearing before the board, if ....” Relying on this language, Rochell argued that all parole-eligible inmates like himself “are now subject to the new parole release procedures in 47-7-18.” As such, argued Rochell, the Mississippi Department of Corrections (MDOC) was incorrect when it determined that Section 47-7-18 applied only to inmates sentenced after July 1, 2014, the date that Section 47-7-18 took effect.

¶ 4. The trial judge denied Rochell’s petition, finding that Section 47-7-3.1 “contemplates inmates sentenced after July 1, 2014,” as it provides that the MDOC shall complete a case plan for all inmates “within ninety (90) days of admission.” Miss. Code Ann. § 47-7-3.1(2) (Rev. 2015). As such, the trial judge ruled that Rochell was not entitled to a case plan and therefore was not entitled to any relief. Rochell now appeals and presents two issues:

I. Whether [Section] 47-7-18 applies retroactively to all parole-eligible offenders; and
II. Whether [Section] 47-7-18(1) creates a liberty interest protected by the Due Process Clause.

We fínd Rochell’s first issue dispositive and therefore decline to address his second issue.

ANALYSIS

¶ 5. ‘When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (Miss. 1999). But when questions of law are raised, the applicable standard of review is de novo. Id. Statutory interpretation is a question of law. Tipton v. State, 150 So.3d 82, 84 (Miss. 2014).

¶ 6. Rochell argues that “Section 47-7-18(1) makes release mandatory upon certain findings.” Specifically, Rochell argues that Section 47-7-18(1)’s language is “plain and unambiguous” and emphasizes the word “shall”: “[e]ach inmate eligible for parole pursuant to Section 47-7-3, shall be released from incarceration to parole supervision on the inmate’s parole eligibility date .... ” Based on this language, Rochell argues that “all offenders eligible for parole pursuant to [Section] 47-7-3 are now subject to the parole release procedures in [Section] 47-7-18, as a matter of statutory law notwithstanding when convicted.”

¶ 7. The State argues that Section 47-7-18 does not apply retroactively to offenders sentenced prior to July 1, 2014. But Rochell counters that Section 47-7-18 “does not state that it only applies to inmates sentenced after July 1, 2014. If the [Legislature] wanted to limit applicability of [Section] 47-7-18 to inmates convicted after July 1, 2014, it could have easily done that. But, there is no exclusion clause in the Statute.”

¶ 8. But this Court consistently has held the exact opposite: that statutes will be applied prospectively, unless the statute clearly provides that it is retroactive. In Mladinich v. Kohn, this Court wrote that “[a] statute will not be given retroactive effect unless it is manifest from the language that the legislature intended it to so operate.” Mladinich v. Kohn, 186 So.2d 481, 483 (Miss. 1966). “[A statute] will not be construed as retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is.” Id. (emphasis added). “In short, [prior caselaw] illustrate^] a well-settled attitude of statutory interpretation: A preference that it be prospective only, and a requirement that there should be a clearly expressed intent in the act to make it retrospective. Id. (emphasis added). And in Hudson v. Moon, this Court said that it has “continuously followed the rule that statutes will be construed to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression.” Hudson v. Moon, 732 So.2d 927, 930-31 (Miss. 1999) (emphasis added).

¶ 9. With this standard in mind, we see no “plain declaration” or “clearly expressed intent” that Section 47-7-18 applies retroactively. On the contrary, we note at least four other indicators that show the Legislature did not intend that section to apply retroactively. First, as noted by the trial judge, Section 47-7-3.1(2) states that “[w]ithin ninety (90) days of admission, the department shall complete a case plan on all inmates .... ” Miss. Code Ann. § 47-7-3.1 (Rev. 2015) (emphasis added). Clearly, that statutory requirement cannot be satisfied in Roc-hell’s case, as he was “admitted” to the MDOC’s custody in 1994.

¶ 10. Second, Section 47-7-2 defines “Parole case plan,” in pertinent part, as “an individualized, written accountability and behavior change strategy developed by the department in collaboration with the parole board to prepare offenders for release on parole at the parole eligibility date.” Miss. Code Ann. § 47-7-2 (Rev. 2015). Again, a “case plan,” as defined by the Legislature, has no application to Roc-hell, as his parole eligibility date passed years ago.

¶ 11. Third, Section 47-7-13—which was left unchanged by the 2014 amendments— states that “[a] decision to parole an offender convicted of murder or a sex-related crime shall require the affirmative vote of three (3) members.” Miss. Code Ann. § 47-7-13 (Rev. 2015). But importantly, the 2014 amendments specifically exclude those convicted of crimes of violence or sex crimes on or after July 1, 2014, from parole eligibility altogether. So again, the statutory scheme clearly contemplates different treatment for those convicted on or after July 1, 2014, and those convicted before that time, such as Rochell.

¶ 12. Finally, the Legislature did not repeal Sections 47-7-5 and 47-7-17, which describe the duties of the Parole Board and the procedures for parole hearings in non-“presumptive parole” cases. In other words, the preservation of those two statutes belies Rochell’s argument that the Legislature meant for Section 47-7-18— i.e., the “presumptive parole” statute—to apply to all parole-eligible inmates.

¶ 13. In short, we find nothing in Section 47-7-18 that indicates the Legislature’s intent that it apply retroactively “by the clearest and most positive expression.” As such, we agree with the trial judge that Rochell is entitled to no relief, and we therefore affirm his denial of Rochell’s petition. And because we find that Section 47-7-18 does not apply to Rochell, we decline to address his argument that that section creates a liberty interest protected by the Due Process Clause.

CONCLUSION

¶ 14. For the foregoing reasons, we find that Section 47-7-18 does not apply retroactively. As such, we affirm the judgment of the Calhoun County Circuit Court.

¶ 15. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.

DICKINSON, PRESIDING JUSTICE,

CONCURRING IN RESULT ONLY:

¶ 16. I agree Rochell was not entitled to parole under Mississippi Code Section 47-7-18(1). But whether that statute applies prospectively or retroactively is not the issue. And the majority, erroneously concluding that it is the issue, applies the incorrect legal standard. So I concur in result only.

¶ 17. We review questions of statutory interpretation de novo, and “[o]ur primary goal in interpreting statutes is ‘to adopt that interpretation which will meet the true meaning of the Legislature.’ ” “To determine legislative intent, the Court first looks to the language of the statute. If the words of a statute are clear and unambiguous, we apply the plain meaning of’ those words, and we have no need “to apply principles of statutory construction.” In other words, in the absence of statutory ambiguity, ordinarily we give effect to a statute’s plain language.

¶ 18. A different standard applies for the specific question of whether a newly enacted statute should be given a prospective or retroactive application. “In a long line of cases,” we have “followed the rule that” we will construct statutes “to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression.” This standard, of course, applies only where the question of retroactive application is at issue. Here it is not.

¶ 19. Black’s Law Dictionary defines “retroactive” as “extending in scope or effect to matters that have occurred in the past.” It defines “retroactive law” as “[a] legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect.”

¶ 20. Rochell does not ask this Court to apply a new statute to “matters that have occurred in the past.” Rather, he argues that newly enacted parole statutes should apply to his presently existing parole-eligible status, and his request to be paroled, a request he made after the statutes were enacted. The very cases cited by the majority on the prospective/retroactive standard confirm that this standard does not apply to Rochell’s claim.

¶ 21. For instance, in Mladinich v. Kohn, we considered whether Mississippi’s newly enacted long-arm statute applied to a tort committed before its enactment. Similarly, in Hudson v. Moon, we considered whether the repeal of a statute affecting certain property interests affected an interest that vested in the property prior to the repeal. Here, by contrast, we consider what statutes control a present parole request made by a presently parole-eligible inmate.

¶ 22. Because this case does not concern the prospective/retroactive distinction, our analysis should begin with the plain language of the statutes at issue. Rochell claims he is entitled to the benefit of Mississippi Code Section 47-7-18(1), which provides:

(1) Each inmate eligible for parole pursuant to Section 47-7-3, shall be released from incarceration to parole supervision on the inmate’s parole eligibility date, without a hearing before the board, if:
(a) The inmate has met the requirements of the parole case plan established pursuant to Section 47-7-3.1;
(b) A victim of the offense has not requested the board conduct a hearing;
(c) The inmate has not received a serious or major violation report within the past six (6) months;
(d) The inmate has agreed to the conditions of supervision; and
(e) The inmate has a discharge plan approved by the board.

Rochell argues that the language—“[e]ach inmate eligible for parole pursuant to Section 47-7-3”—unambiguously provides that this statutes applies to every parole-eligible offender, and that he is one such person. While this argument, in isolation, has some merit, we have held that an apparent conflict between two statutes which concern the same subject matter results in ambiguity necessitating resort to rules of statutory construction.

¶23. Here, such an apparent conflict exists. Viewed in isolation, Section 47-7-18(1) appears to say that all parole-eligible offenders will receive parole without a hearing if the enumerated conditions exist. But Mississippi Code Section 47-7-13 states “[a] decision to parole an offender convicted of murder or a sex-related crime shall require the affirmative vote of three (3) members.” Obviously, under this statute, one convicted of murder—like Roc-hell—cannot be entitled to automatic parole because his parole is contingent on an affirmative vote of three members of the Parole Board. Thus, the two statutes governing a common subject, parole, conflict.

¶ 24. “It is a well-settled rule of statutory construction that “when two statutes pertain to the same subject, they must be read together in light of legislative intent.’ ” “Following the rules of statutory construction, repeal of statutes by implication is not favored.” “ ‘[Wjhere in a subsequent statute there is no express repeal of a former, the court will not hold the former to be repealed by implication, unless there is a plain and unavoidable re-pugnancy between them.’” “We have said that ‘statutes on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each.’ ”

¶ 25. Further, “[t]his Court has also recognized that in resolving the conflict of specific versus general statutory provisions: ‘To the extent that two constitutional or statutory provisions overlap or conflict, specific provisions control over general provisions.’ ”

¶ 26. With two statutory provisions concerning parole in conflict, the more specific statute requiring an affirmative vote to parole those convicted of murder and sex offenses must control over the more general statute granting presumptive parole. The only way to read these two statutes in concert—which this Court must do if possible—and avoid finding that Section 47-7-13 has been repealed implicitly, is to conclude that those convicted of murder, like Rochell, are not entitled to the benefit of Section 47-7-18(1).

KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . The entirety of Section 47-7-18(1) reads as follows:
      (1) Each inmate eligible for parole pursuant to Section 47-7-3, shall be released from incarceration to parole supervision on the inmate’s parole eligibility date, without a hearing before the board, if:
      (a) The inmate has met the requirements of the parole case plan established pursuant to Section 47-7-3.1;
      (b) A victim of the offense has not requested the board conduct a hearing;
      (c) The inmate has not received a serious or major violation report within the past six (6) months;
      (d) The inmate has agreed to the conditions of supervision; and
      (e) The inmate has a discharge plan approved by the board.
      Miss. Code Ann. § 47-7-18(1) (Rev. 2015).

      . The trial court initially had dismissed Roc-hell’s petition and directed him to "first pursue this request within the Mississippi Department of Corrections Administrative Review Program.” Rochell then filed a "Notice of Exhaustion,” explaining that he previously had sought rélief with the MDOC, but was informed by the MDOC that it "does not handle Parole Board Matters.” But the trial court again dismissed Rochell’s petition, finding that he had failed to name the proper party as a defendant. Rochell then filed a "Motion for Relief From Judgment” and asked the trial court to "relieve him of the prior dismissal and reopen the proceedings.” The trial court then considered the merits of Rochell's petition and ultimately denied it, as detailed above.

      . Although the trial judge did not specifically reference Section 47-7-18, we note that the first requirement for an inmate to receive parole without a hearing under that section is that the inmate “has met the requirements of the parole case plan established pursuant to Section 47-7-3.1.” See Miss. Code Ann. § 47-7-18(1)(a) (Rev. 2015). Both Sections 47-7-18 and 47-7-3.1 were added to the statutory scheme via House Bill 585, which took effect on July 1, 2014.

      . Notably, the definition of "Parole case plan" was added to Section 47-7-2 as part of the 2014 amendments (i.e., House Bill 585).

      . In fact, the 2014 amendments extended Section 47-7-5's repealer provision from July 1, 2014, until July 1, 2018.

      . For instance, Section 47-7-17 mandates that "[p]arole release shall, at the hearing, be ordered only for the best interest of society, not as an award of clemency .... ” Miss. Code Ann. § 47-7-17 (Rev. 2015). Section 47-7-18 contains no such requirement. Section 47-7-17 also allows the Parole Board to require parolees to submit to "any type of breath, saliva or urine chemical analysis test[.]” Section 47-7-18 mentions no such tests.

      . Legislature of State of Miss. v. Shipman, 170 So.3d 1211, 1214-15 (Miss. 2015) (citing 5K Farms, Inc. v. Miss. Dep't of Revenue, 94 So.3d 221, 225 (Miss. 2012); quoting Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1276 (Miss. 2006)).

      . Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (Miss. 2011) (citing Pinkton v. State, 481 So.2d 306, 309 (Miss. 1985); Clark v. State ex ret Miss. State Med. Ass’n, 381 So.2d 1046, 1048 (Miss. 1980); Gilmer v. State, 955 So.2d 829, 833 (Miss. 2007)).

      . Mladinich v. Kohn, 186 So.2d 481, 483 (Miss. 1966) (citing Hooker v. Hooker, 18 Miss. (10 S. & M.) 599 (1848); Brown v. Wilcox, 22 Miss. (14 S. & M.) 127 (1850); Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977 (1912); Power v. Calvert Mortg. Co., 112 Miss. 319, 73 So. 51 (1916); State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310 (1928); Bell v. Union & Planters' Bank & Trust Co., 158 Miss. 486, 130 So. 486 (1930); Miss. Cent. R.R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897 (1932); City of Lumberton v. Schrader, 176 Miss. 272, 168 So. 77 (1936); Jefferson Standard Life v. Dorsey, 178 Miss. 852, 173 So. 669 (1937); U.S. Fid. & Guar. Co. v. Maryland Cas. Co., 191 Miss. 103, 199 So. 278 (1941); McCullen v. State ex rel. Alexander, 217 Miss. 256, 63 So.2d 856 (1953); Klaas v. Cont'l S. Lines, 225 Miss. 94, 82 So.2d 705 (1955); Home v. State Bldg. Comm'n, 233 Miss. 810, 103 So.2d 373 (1958)).

      . Retroactive, Black’s Law Dictionary 1122 (abr. 9th ed.).

      . Retroactive Law, Black's Law Dictionary 1122 (abr. 9th ed.).

      . Mladinich, 186 So.2d at 481.

      . Hudson v. Moon, 732 So.2d 927, 931 (Miss. 1999).

      . Miss. Code Ann. § 47-7-18(1) (Rev. 2015).

      . Tunica Cty. v. Hampton Co. Nat'l Sur., LLC, 27 So.3d 1128, 1133 (Miss. 2009).

      . Miss. Code Ann. § 47-7-13 (Rev. 2015).

      . Tunica Cty., 27 So.3d at 1133 (quoting Lenoir v. Madison Cty., 641 So.2d 1124, 1129 (Miss. 1994)).

      . Tunica Cty., 27 So.3d at 1133 (citing Roberts v. Miss. Republican Party State Exec. Comm., 465 So.2d 1050, 1051 (Miss. 1985)).

      . Tunica Cty., 27 So.3d at 1133-34 (quoting Roberts, 465 So.2d at 1051).

      . Tunica Cty., 27 So.3d at 1134 (quoting Miss. Gaming Comm’n v. Imperial Palace of Miss., 751 So.2d 1025, 1029 (Miss. 1999)).

      . Harrison v. State, 800 So.2d 1134, 1137 (Miss. 2001) (quoting Yarbrough v. Camphor, 645 So.2d 867, 872 (Miss. 1994)).


source: Caselaw Access Project

author: KING, Justice,

license: Public Domain

text:
    PEARSON’S FIREWORKS, INC. v. CITY OF HATTIESBURG, Mississippi.
    No. 2013-CA-00834-SCT.
    Supreme Court of Mississippi.
    Aug. 7, 2014.

      Joseph H. Montgomery, Poplarville, Lawrence Cary Gunn, Jr., Hattiesburg, attorneys for appellant.
    James W. Gladden, Jr., attorney for ap-pellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   KING, Justice,

for the Court:

111. This ease arises from the City of Hattiesburg’s (“the City’s”) annexation of property in 2007. Pearson’s Fireworks (“Pearson’s”) leased land which was part of the annexed property for the purpose of selling fireworks during the Fourth of July and New Year’s holiday seasons. Prior to the annexation, the City passed an ordinance prohibiting the sale of fireworks within the city limits. After the annexation, the City notified Pearson’s that it could no longer sell fireworks on the newly annexed land. Pearson’s then filed suit against the City in the Circuit Court of Lamar County. The circuit court granted summary judgment in favor of the City, and Pearson’s now appeals the trial court’s judgment to this Court. For the reasons discussed below, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. The City enacted an ordinance prohibiting the sale of fireworks within its city limits in 1950. In 2003, Pearson’s entered into a ten-year “Lease of Commercial Property” (“the lease”) with MGM Partnership (“MGM”). The lease allowed Pearson’s “to occupy the subject property between June 5th and July 15th for the 4th of July season and between December 1st and January 12th for the Christmas and New Year season of each year of the lease for the purpose of selling fireworks.” At the time Pearson’s and MGM entered into the lease, the property was not within Hattiesburg’s city limits.

¶ 3. In July 2006, MGM contacted the City to request that the City annex the property. The City adopted an ordinance to annex the property in September 2007. The Chancery Court of Lamar County then entered a judgment approving the annexation.

¶4. After the property was annexed, the City prohibited Pearson’s from selling fireworks on the property. In December 2008, Pearson’s filed suit against the City, seeking three types of relief: (1) a declaratory judgment that Pearson’s fireworks business could continue on the property pursuant to a “grandfathering” provision in the Hattiesburg Zoning Code and the doctrine of pre-existing use; (2) damages for the regulatory taking of Pearson’s business; and (3) an injunction preventing the City from prohibiting Pearson’s from selling fireworks until a decision on the first two forms of relief was reached.

¶ 5. In March 2009, Pearson’s filed a motion for declaratory judgment. The motion related only to Pearson’s first form of relief sought in its complaint. See Pearson’s Fireworks, Inc. v. City of Hatties-burg, 66 So.3d 1276, 1278 (Miss.Ct.App. 2011). In January 2010, the trial court denied Pearson’s motion for declaratory judgment and granted the City’s ore tenus motion for summary judgment. Pearson’s appealed, and the case was assigned to the Court of Appeals. See id. The Court of Appeals found that the trial court did not address Pearson’s regulatory takings claim (its second form of relief sought). Id. at 1278. Because all of Pearson’s claims were not adjudicated, the Court of Appeals dismissed Pearson’s appeal for lack of jurisdiction. Id.

¶ 6. When the case returned to the circuit court, the City filed a motion for summary judgment relating to Pearson’s regulatory taking claim. Finding that a regulatory taking did not occur in today’s case, the trial court entered summary judgment in favor of the City. Pearson’s now appeals the trial court’s judgment to this Court and raises four issues on appeal: (1) Whether the City’s annexation ordinance is invalid due to lack of notice of publication; (2) Whether enaction of an annexation ordinance requires actual notice be given to known or easily identifiable property owners; (3) Whether the grandfathering provision in the City’s Zoning Code and/or the pre-existing-use doctrine overrides the City’s fireworks ordinance; and (4) Whether the City’s prohibiting Pearson’s from selling fireworks is a compensable regulatory taking.

ANALYSIS

I. Whether the City’s annexation ordinance is invalid due to lack of notice publication.

¶ 7. The annexation process is governed by statute. First, if a city desires to annex property, “the governing authorities of such municipality shall pass an ordinance defining with certainty the territory proposed to be included in or excluded from the corporate limits, and also defining the entire boundary as changed.” Miss.Code Ann. § 21-1-27 (Rev. 2007). After the ordinance is passed, the city must “file a petition in the chancery court of the county in which such municipality is located.... The petition shall recite the fact of the adoption of such ordinance and shall pray that the enlargement ... of the municipal boundaries ... shall be ratified, approved and confirmed by the court.” Miss.Code Ann. § 21-1-29 (Rev. 2007). When the petition is filed, the chancellor sets a hearing date, and notice of the hearing must be provided. Miss. Code Ann. § 21-1-31 (Rev. 2007) (“notice thereof shall be given in the same manner and for the same length of time as is provided in Section 21-1-15”). Mississippi Code Section 21-1-15 requires that the notice be published three times:

said notice shall be given by publication thereof in some newspaper published or having general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory. The first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition, and such notice shall contain a full description of the territory proposed to be incorporated.

Miss.Code Ann. § 21-1-15 (Rev. 2007).

¶8. Pearson’s concedes that the City complied with the above-described annexation procedure. Rather than claiming that the City did not comply with the statutory annexation procedures set forth in Sections 21-1-27 to -41, Pearson’s argument is that the City did not comply with the notice requirements of Mississippi Code Section 21-13-11 (Rev. 2007), which requires municipalities to publish one notice of passed ordinances. Section 21-13-11 reads, in part:

Every ordinance passed by the governing body of a municipality, except as is otherwise provided by law, shall be certified by a municipal clerk, signed by the mayor or a majority of all the members of the governing body, recorded in the ordinance book, and published at least one (1) time in some newspaper published in such municipality, or, if there be no such newspaper, then in a newspaper within the county having general circulation in said municipality, or, if there be no newspaper published in or having general circulation in same, then in any newspaper published in the State of Mississippi having general circulation in said county; and all of same shall be done before such ordinance shall be effective.

Pearson’s claims that, under Sections 21-13-11 and 21-1-15, the City should have published notice of the annexation ordinance a total of four times (once under Section 21-13-11, and three times pursuant to Section 21-1-15). The trial court in today’s case found that only Section 21-1-15 applied, and, because the City complied with that section, Pearson’s argument had no merit.

¶9. The City responds to Pearson’s argument by claiming that the Code sections applicable to annexation ordinances—namely, Mississippi Code Sections 21-1-27 to -41—are exclusive of Section 21-13-11. The City claims Section 21-13-11 is applicable only to general ordinances, not annexation ordinances. In support of its contention, the City points out that the statutes governing annexations do not explicitly state that notice must be published under Section 21-13-11; rather, the annexation statutes state that notice must be provided in accordance with Section 21-1-15.

¶ 10. The City also cites City of Biloxi v. Cawley, 278 So.2d 389 (Miss.1973), for the proposition that annexation ordinances are not subject to the notice requirements of Section 21-13-11. The issue in Cawley was whether an annexation ordinance had been properly adopted when the minutes of the city commission were signed by the mayor and clerk within ten days after the adjourned regular meeting at which the ordinance was adopted. Although Cawley does not directly address whether notice under Section 21-13-11—in addition to notice under Section 21-1-15—must be provided in annexation cases, language in the opinion is helpful in determining whether the general ordinance statutes must be complied with during annexation proceedings. This Court stated: “Annexation ordinances have been placed in a special category by the Legislature and dealt with separately. These special statutes control over statutes dealing with municipal ordinances generally.” Id. at 393.

¶ 11. Recently, in Extension of Boundaries of City of Tupelo v. City of Tupelo, 94 So.3d 256, 262 (Miss.2012) (“City of Tupelo”), this Court discussed the notice provisions for annexation matters. Although the notice provision of Section 21-13-11 was not at issue in that case, this Court did not include Section 21-13-11 in its notice discussion:

Section 21-1-31 sets forth the notice requirements in annexation matters.... Section 21-1-15, which is incorporated by reference in Section 21-1-31, requires notice to be given both by publication in “some newspaper published or having general circulation in the territory proposed to be [annexed]” as well as by posting “a copy of such notice in three or more public places in such territory[;][t]he first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition.”

Id.

¶ 12. The proposition that annexation ordinances are governed by Chapter 1 of Section 21, rather than Section 21-13-11, is further supported by a Mississippi Attorney General opinion. That opinion states:

In the event that the governing authorities of a municipality desire to expand the boundaries of the municipality, the statutory procedures for annexation as provided by Miss.Code Ann. Secs. 21—1— 27, et seq. must be followed. [The municipality] has proceeded with a proposed annexation of additional territory to the point of publication of the notice of proposed enlargement as required by Section 21-1-31.

Fernald, 97 Op. Att’y Gen. 523, 1997 WL 612488 (Miss.A.G.) (Sept. 26, 1997). Notably, the opinion does not state that a municipality also must comply with the notice requirements of Section 21-13-11.

¶ 13, Because the statutes specifically governing annexation procedures require only three publications of notice and do not incorporate the notice provisions set out in Section 21-13-11, which applies to general municipal ordinances, the City in today’s ease provided adequate notice. This issue is without merit.

II. Whether actual notice, rather than constructive notice, of annexation matters should be given to known or easily identifiable property owners.

¶ 14. Pearson’s claims that the current notice provisions in the annexation statutes—-which allow for constructive notice through the publication procedures discussed above in Section I—are unconstitutional and that actual notice of the annexation must be given to known or easily identifiable property owners. In support of its contention, Pearson’s claims in its brief that “[d]ue process requires that actual notice be given to persons whose legal interests can be affected by governmental taking, if the identity of those persons is known and if there is an effective alternative to notice publication.”

¶ 15. Pearson’s cites Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), in support of its contention that actual notice is required in order to comply with due-process requirements. In Jones, the State of Arkansas took Jones’s home for property tax delinquency and sold it to a private buyer. The State attempted to notify Jones of the tax delinquency and his right of redemption by mailing a certified letter to him. Id. at 223-24, 126 S.Ct. 1708. Because Jones no longer occupied the home, the certified letter went unclaimed and was returned to the State as undeliverable. Id. Even though the State knew Jones did not receive the notice, it arranged' for the private sale. Id. Jones then filed suit alleging the State’s attempted notice was insufficient under the Due Process Clause. Id. at 224, 126 S.Ct. 1708,. The Supreme Court held that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Id. at 225, 126 S.Ct. 1708,.

¶ 16. Pearson’s also cites Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), for the proposition that the annexation procedure under Sections 21-1-13 to -41 is unconstitutional. In Pope, the United States Supreme Court addressed the constitutionality of an Oklahoma statute which required the probate court to appoint an executor or executrix after admitting a will to probate. Id. at 481, 108 S.Ct. 1340, After appointment, the executor or executrix was required to publish notice advising creditors to present claims within two months after the date of first publication. Id. If the decedent died intestate, creditors were given one- month to present claims. Id. In Pope, a hospital failed to file its claim within the time period specified. Id. at 482, 108 S.Ct. 1340. The hospital then claimed that the statute did not provide proper notice to known creditors and, as such, violated the hospital’s due-process rights. Id. at 483, 108 S.Ct. 1340. The Supreme Court agreed and held: “due process is directly implicated and actual notice [to known or reasonably ascertainable creditors] generally is required.” Id. at 487, 108 S.Ct. 1340.

¶ 17. Pearson’s points out that, shortly after Pope, the Mississippi Legislature amended its statute governing the-identification of claims against an estate to provide for notice by mail to known creditors. See Miss.Code Ann. § 91-7-145 (Rev. 2013); see also Estate of Patrick v. Miss. Neurosurgery, P.A., 635 So.2d 1389, 1393 (Miss.1994) (“The Mississippi statute, enacted shortly after Pope, clearly requires an administratrix to give creditors who can be discovered through reasonably diligent efforts notice by mail and notice by publication.”). The statute-Also requires the executor or administrator to “make reasonably diligent efforts to identify persons having claims against the estate.” Id.

¶ 18. Pearson’s claims that “[b]y analogy the same principle should apply to Mississippi’s annexation procedures. All persons whose businesses may be affected by annexation of property ought to be given actual notice of the pendency of annexation proceedings. Mere publication is not constitutionally. sufficient.”

¶ 19. In today’s case, the owner of the land (the party typically concerned with notice of an annexation) contacted the City and requested the annexation. Even though this annexation was considered a “friendly annexation,” the City followed the notice procedures prescribed in Section 21-1-15. Put simply, the landowner had notice of the annexation, and any due-process concerns were resolved through the City’s compliance with the statutory procedures. Further, Pearson’s contention leads to a far-reaching, and seemingly impossible, application. If all persons who have a business interest—or in essence, an economic interest—that may be affected by annexation proceedings are due actual notice of the proceedings, how does the municipality determine the scope of persons who have may an interest?

¶ 20. Because the cases Pearson’s cites in its brief are limited to individuals or definable groups requiring notice—rather than imprecise groups—the cases are distinguishable from today’s case. Jones involved the sale of a known individual’s real property to satisfy a tax lien. Jones, 547 U.S. at 223-24, 126 S.Ct. 1708. The state sold Jones’s home despite knowing that Jones did not receive the mailed notice. Id. The Supreme Court focused on the State not taking further actions to effect notice when the mailed notices were returned and held that, under these facts, the state should have taken further action to notify Jones. Id. at 225,126 S.Ct. 1708. Pope also limited its application to known or reasonably ascertainable creditors. Pope, 485 U.S. at 487, 108 S.Ct. 1340. Further, in addition to their narrow holdings, Jones and Pope have not been applied to annexation cases such as this one.

¶21. Although this Court has not directly addressed whether Section 21-1-15 is unconstitutional for failure to give actual notice to persons whose economic interests are affected by an annexation, this Court has held that personal service under the annexation statutes is not required. In Myrick v. Stringer, 336 So.2d 209, 210 (Miss.1976), this Court held that the notice provision in Section 21-1-15 “is in lieu of personal service” and must be strictly complied with. See also City of Tupelo, 94 So.3d at 262 (“The notice required by Section 21-1-15 is in lieu of personal service and must be strictly complied with.”).

¶ 22. Because requiring actual notice to all persons who have some economic interest in annexation proceedings is almost limitless in its application, and because this Court has held that the notice provisions contained in the statutes at issue are in lieu of personal service, this issue is without merit.

III. Whether the grandfathering provision in the City’s zoning code and/or the pre-existing-use doctrine overrides the City’s fireworks ordinance.

¶ 23. Next, Pearson’s contends that the grandfathering provision in the City’s zoning code and/or the pre-existing-use doctrine override the City’s zoning provision prohibiting the sale of fireworks,

¶ 24. The City’s zoning code contains the following provision: “12.03. The lawful use of land existing at the time of the passage of this Code, although such does not conform to the provisions herein, may be continued....” Because selling fireworks was lawful on the subject land prior to the annexation, Pearson’s claims that, under the grandfathering provision, fireworks sales may lawfully continue after the annexation. Likewise, Pearson’s claims that the pre-existing-use doctrine allows for the continuation of fireworks sales after the annexation. Under this doctrine “[n]on-conforming uses may be permitted to continue where the uses were lawfully established at the adoption of the ordinance.” Barrett v. Hinds County, 545 So.2d 734, 737 (Miss.1989). Further, “the right to continue a non-conforming use, once established and not abandoned, runs with the land. It has been held by some courts that any ordinance which takes away that right in any unreasonable manner, or in a reason not grounded in public welfare is invalid.” Id. (citations omitted).

¶ 25. In Davidson v. City of Clinton, 826 F.2d 1430, 1434 (5th Cir.1987) (applying Mississippi law), the Fifth Circuit found that the doctrine of nonconforming (or pre-existing) use did not apply when the City of Clinton—which prohibited alcohol sales in certain areas—annexed land on which the plaintiff operated a nightclub that sold beer. After the annexation, the plaintiff filed suit against the City of Clinton, claiming, in part, that he should be able to sell beer lawfully at the nightclub under the pre-existing-use doctrine. Id. The Court found that this doctrine did not apply to the ease because the ordinance prohibiting the sale of alcohol was a “reasonable and appropriate exercise of governmental authority” under the City of Clinton’s police power. Id. at 1435.

¶26. In 2000, the United States District Court for the Northern District of Mississippi addressed whether the pre-ex-isting-use doctrine could apply to fireworks sales on newly annexed property. Meramec Specialty Co. v. City of Southaven, 2000 WL 33907912 (N.D.Miss. Feb. 22, 2000) (“Meramec I”); Meramec Specialty Co. v. City of Southaven, 234 F.3d 29 (5th Cir.2000) (“Meramec II ”) (unpublished opinion) (affirming Meramec I). In Meramec, the plaintiff leased land for the limited purpose of selling fireworks. Meramec I, 2000 WL 33907912, at *1. The lease began in 1989, and in 1997, the City of Southaven annexed the land. Id. Sou-thaven prohibited the sale of fireworks within its corporate limits except by special permit. Id. The Court found that the pre-existing-use doctrine did not apply to fireworks sales on newly annexed property. Id. at *2. Citing Davidson, the Court stated: “a municipal ordinance in existence at the time of annexation operates throughout the city’s boundaries regardless of their change, and the jurisdiction of the new authority attaches and that of the former authority ceases upon annexation.” Id.

¶ 27. The Mississippi Attorney General’s Office has addressed the same issue. In 1998, the Attorney General issued an opinion addressing the following question:

The City of Southaven has recently annexed an area in which fireworks stands have previously been located. The City of Southaven has a ban on possession and sale of fireworks.... [A]re these locations and their operations “grandfathered” due to their existence before the annexation?

Davis, 98 Op. Att’y Gen. 224, 1998 WL 224309 (Miss.A.G.) (April 24, 1998). The opinion cites Mississippi Code Section 21-19-15 (Rev. 2007), which “gives municipalities the authority to prohibit or regulate the sale or use of fireworks as a police power of the city.” Id. Further, the opinion stated: “A municipality may enforce an ordinance prohibiting the sale and possession of fireworks in a recently annexed area and may prohibit the sale of fireworks by businesses which sold fireworks before the area was annexed.” Id. Section 21-19-15 reads, in part:

(1) The governing authority of municipalities shall have power to make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property.
(3) The governing authority of a municipality shall have the power to prohibit or regulate the sale or use of firecrackers, roman candles, torpedoes, sky rockets, and any and all explosives commonly known and referred to as fireworks....

Miss.Code Ann. § 21-19-15 (Rev. 2007).

¶ 28. Because the regulation of fireworks sales is considered a police power under Section 21-19-15 and the pre-exist-ing-use doctrine and/or grandfathering is not applicable to ordinances relating to such police powers, this issue is without merit.

IV. Whether the annexation amounted to a compensable regulatory taking of Pearson’s business.

¶29. As an alternative to the issues discussed above, Pearson’s requests that this Court find that the annexation in today’s case resulted in a compensable regulatory taking of Pearson’s business.

¶ 30. Article 3, Section 17 of the Mississippi Constitution prohibits the State’s taking of property without compensation:

Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and as such, determined without regard to legislative assertion that the use is public.

¶ 31. As mentioned above, Mississippi Code Section 21-19-15 allows municipalities to regulate the sale and use of fireworks as part of their police powers. When considering takings claims and the exercise of police powers, this Court has held that “[r]estrictions imposed upon the use of property through the lawful exercise of the police power of the state do not require compensation.” Miss. State Highway Comm’n v. Roberts Enters., Inc., 304 So.2d 637, 639 (Miss.1974).

¶ 32. The Fifth Circuit in Meramec II, 234 F.3d at 29, found that a fireworks business owner was not entitled to compensation for an alleged taking under facts similar to today’s case:

Meramec now claims that it is entitled to just compensation for the taking of its alleged property rights. Since a license to sell fireworks is simply a revocable permit or alienable privilege, Meramec does not have a vested property right, and thus does not have a takings claim. Therefore, Meramec’s just compensation claim is without merit.

¶ 33. Other courts have considered the same issue and found that, in the case of annexation, a business owner selling fireworks is not entitled to compensation. See Dan Rhodes Enters., Inc. v. City of Lake Charles, 857 So.2d 1256, 1261 (La.Ct.App. 2003) (“While [a business owner] has the right to acquire, own, control, use, enjoy, protect, and dispose of private property, this right is subject to reasonable statutory restrictions and the reasonable exercise of police power. To conclude otherwise would have a chilling effect on any proposed municipal annexation.”). Like the Louisiana court in Rhodes Enterprises, Mississippi courts have recognized that municipalities may regulate the use of land within their territory through their police powers so long as the regulation is reasonable and not oppressive. See Fanning v. Town of Hickory, 201 Miss. 620, 30 So.2d 65, 65 (1947) (finding that ordinance prohibiting the sale of alcohol within 1,500 feet of a church was reasonable); Ford v. Easterling, 183 Miss. 575, 184 So. 153, 158 (1938).

¶34. In Davidson, 826 F.2d at 1435, the Fifth Circuit expressed concern that permitting the plaintiff to continue alcohol sales on a property that recently had been annexed into an area that prohibited the same would “alter practices of previously existing businesses, notwithstanding annexation” and possibly “numb the potency ... of the defendants’ exertion of its police power over the sale of beer and alcoholic beverages.” Those same concerns are present when considering Pearson’s takings claim. If Pearson’s is entitled to compensation for the alleged regulatory taking in today’s case, it would open the door for other businesses—in any case, annexation or not—to assert a takings claim when the business is subject to a prohibition in a newly enacted ordinance.

¶ 35. For these reasons, Pearson’s takings claim is without merit.

CONCLUSION

¶ 36. For the reasons discussed above, Pearson’s contentions of error are without merit. Therefore, we affirm the judgment of the Circuit Court of Lamar County granting summary judgment in favor of the City of Hattiesburg.

¶ 37. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR.


author: JESS H. DICKINSON, Presiding Justice. /s/ Jess H. Dickinson JESS H. DICKINSON, PRESIDING JUSTICE FOR THE COURT CHANDLER, Justice,

text:
    Lauren Beth CZEKALA-CHATHAM, Appellant v. The STATE of Mississippi, ex rel. Jim HOOD Attorney General of the State of Mississippi, Appellee.
    No. 2014-CA-00008-SCT.
    Supreme Court of Mississippi.
    Feb. 24, 2015.
   EN BANC ORDER

JESS H. DICKINSON, Presiding Justice.

This matter comes before the En Banc Court after hearing oral argument in this case January 21, 2015. We note that cases currently pending before the United States Supreme Court may, or may not, assist this Court in deciding the issue before us. Both parties agreed that this matter should be stayed until an opinion issues from the United States Supreme Court. Having considered the arguments and briefing already presented, the Court has determined that, prior to issuing a stay, supplemental briefing would be helpful on the following question:

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?

It is therefore ORDERED: that the parties shall simultaneously file supplemental briefs not tb exceed thirty pages within thirty days of the entry of this order.

SO ORDERED.

/s/ Jess H. Dickinson JESS H. DICKINSON, PRESIDING JUSTICE FOR THE COURT

TO AGREE: WALLER, C.J., DICKINSON and RANDOLPH, P.JJ., LAMAR, PIERCE AND COLEMAN, JJ.

CHANDLER, J., OBJECTS WITH SEPARATE WRITTEN STATEMENT.

KING, J., OBJECTS WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, J.

CHANDLER, Justice,

objecting to the order with separate written statement:

¶ 1. I disagree with the order for supplemental briefing. There seems no way, based on a plain reading of the applicable statutes and state constitutional provisions, to grant a divorce to Czekala-Chatham in this state without violating the statutes and the Mississippi Constitution. Mississippi Code Section 93-1-1(2) states that “[a]ny marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.” Miss.Code Ann. § 93-1-1(2) (Rev.2013). Mississippi Code Section 93-1-3 provides that “[a]ny attempt to evade Section 93-1-1 by marrying out of this state and returning to it shall be within the prohibitions of said section.” Miss.Code Ann. § 93-1-3 (Rev.2013). And Section 263A of the Mississippi Constitution provides:

Marriage may take place and may be valid under the laws of this State only between a man and a woman. 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.

Miss. Const, art. 14 § 263A.

¶2. In light of the plain language of these laws, further briefing on this subject, in my opinion, causes undue delay and wastes Czekala-Chatham’s resources, as well as the resources of the State of Mississippi. Without further opinion on the merits, I believe this Court should review the constitutional issues presented without additional briefing.

KING, Justice, Objecting to the order with Separate Written Statement:

¶ 3. This Court has ordered the parties in this case to submit supplemental briefs on the following question:

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?

I can determine no rational basis to believe that this Court will receive any substantial benefit from the required supplemental briefing.

¶ 4. I do not claim to read the collective mind of this Court and its reasoning in requiring this supplemental briefing. 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. I am of the belief that such an action is contrary to the constitutional oath of office that Mississippi requires of its judiciary to “faithfully and impartially discharge” its duties “agreeably to the Constitution of the United States and the Constitution and laws of the State of Mississippi.” Miss. Const. art. 6, § 155 (emphasis added). Given that the pertinent issues are clearly before this Court, and that the statute and constitutional provision at issue are clearly unconstitutional, I see no reason for useless supplemental briefing or for delaying a decision to allow this couple their long-awaited divorce. Consequently, I object to the order for supplemental briefing and believe this Court should decide the squarely presented constitutional issue at hand.

FACTS AND PROCEDURAL HISTORY

¶ 5. On August 22, 2008, Lauren Beth Czekala-Chatham and Dana Ann Melan-con, both Mississippi residents at the time, were legally married in California. Czekala-Chatham and Melancon separated on July 30, 2010, in Southaven, Mississippi. On September 11, 2013, Czekala-Chatham, a resident of DeSoto County, Mississippi, filed for divorce in the Chancery Court of DeSoto County. Melancon filed a motion to dismiss, arguing that the chancery court could not recognize a same-sex marriage, thus could not grant a same-sex divorce, because her marriage to Czekala-Chatham was null and void in Mississippi. In response, Czekala-Chatham filed a “Combined Motion and Memorandum to Declare Mississippi Code Annotated § 93-1-1, § 93-1-3, and Mississippi Constitution Article XIV, § 263A, (2004) Unconstitutional.” She argued that these provisions are unconstitutional because Mississippi must give full faith and credit to the California marriage, because the provisions violate the right to travel, and because the provisions violate the Equal Protection Clause. She also argued that the Mississippi provisions violate the Privileges and Immunities Clause.

¶ 6. On November 15, 2013, the State of Mississippi, through the Attorney General, moved to intervene in the case. The State opposed Czekala-Chatham’s attempt to have Mississippi Code Sections 93-1-1 and 93-1-3 and Mississippi Constitution Article 14, Section 263A declared unconstitutional. The State argued that 1) Mississippi is not obligated to recognize a California same-sex marriage under the Full Faith and Credit Clause; 2) Mississippi’s marriage laws do not violate the right to travel; and 3) Mississippi’s marriage laws do not violate equal protection.

¶ 7. On November 25-26, 2013, Czeka-la-Chatham and Melancon entered into an “Agreement for the Settlement of Property Rights.” Czekala-Chatham and Melan-con then immediately filed a “Joint Motion to Withdraw All Contest” in which Melan-con withdrew her motion to dismiss and the parties requested to proceed on the ground of irreconcilable differences.

¶ 8. The chancery court held a hearing on the issue of the constitutionality of the statutes and constitutional provision on December 2, 2013. Because the parties had agreed on all other issues, the “only issue remaining [was] whether or not these statutory bans as applied to the parties prohibits a divorce from being entered by this Court.”

¶ 9. On December 6, 2013, the chancery court denied Czekala-Chatham’s motion to declare unconstitutional the Mississippi Code and Constitution provisions prohibiting same-sex marriage and the recognition thereof. The court consequently dismissed the divorce claims for lack of subject matter jurisdiction. Aggrieved, Cze-kala-Chatham appealed to this Court.

¶ 10. On appeal, she argues that Mississippi’s bans on same-sex marriage violate the Equal Protection Clause, the Due Process Clause, and the right to travel. She also argues that the trial court’s failure to recognize her legal out-of-state marriage violates the Full Faith and Credit Clause. The American Civil Liberties Union (ACLU) filed an amicus brief on behalf of Czekala-Chatham, in which it argued that heightened scrutiny, rather than rational basis review, should be applied to sexual orientation classifications.

¶ 11. The State argues that Supreme Court precedent forecloses review of this issue and requires this Court to uphold the same-sex marriage bans. It also argues that United States v. Windsor forecloses Czekala-Chatham’s arguments, because that case placed the authority to regulate marriage solidly with the states. United States v. Windsor, - U.S.-, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Moreover, it argues that, even if the Court reaches the question of whether the laws violate the Equal Protection Clause, the State has a rational basis for those laws, and they must be upheld. It responds to the ACLU brief by arguing that most courts have declined to apply heightened scrutiny to classifications based upon sexual orientation. Governor Phil Bryant filed an ami-cus brief on behalf of the State, and in it he argues that Windsor affirms Mississippi’s right to define marriage as it sees fit, that the Full Faith and Credit Clause does not require that Mississippi violate its own public policy, and that concepts of federalism support the view that Mississippi’s bans on same-sex marriage should be upheld.

¶ 12. This Court held en banc oral argument on January 21, 2015. Today, this Court orders supplemental briefing in the case.

ANALYSIS

1. Standard of Review

¶ 13. This Court reviews questions of law de novo. Freeman v. State, 121 So.3d 888, 895 (Miss.2013). This case presents only questions of law.

2, Mississippi Law

¶14. In 1997, Mississippi enacted a statute that provides that “[a]ny marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.” Miss.Code Ann. § 93-1-1 (Rev.2013); 1997 Miss. Laws, ch. 301, § 1. Moreover, “[a]ny attempt to evade Section 93-1-1 by marrying out of this state and returning to it shall be within -the prohibitions of said section.” Miss.Code Ann. § 93-1-3 (Rev. 2013). In 2004, Mississippians voted to amend the Mississippi Constitution to prohibit same-sex marriage. The section is entitled “Marriage defined as only between a man and a woman,” and it states that

Marriage may take place and may be valid under the laws of this State only between a man and a woman. 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.

Miss. Const, art. 14, § 263A.

¶ 15. The order for supplemental briefing, which effectively takes the position that divorce from a same-sex marriage may be possible in Mississippi, seems to ignore the plain language of this constitutional provision. It states that “[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.” Miss. Const. art. 14, § 263A (emphases added). According to Section 263A, a same-sex marriage may not be recognized in this State. Mississippi recognizes two ways to dissolve a marriage, divorce and annulment. Miss.Code Ann. § 93-5-1 (Rev.2013); Miss.Code Ann. § 93-5-2 (Rev.2013); Miss.Code Ann. § 93-7-3 (Rev.2013). In order to obtain a divorce from a marriage, one first has to recognize that marriage; otherwise, any two strangers off the street could walk into a courthouse and file for a divorce. One cannot get to second base without first going to first base. The same rationale applies to annulment—a marriage must be recognized prior to authorizing an annulment of that marriage. Section 263A forbids recognizing same-sex marriages, or, in other words, forbids going to first base. Further, Section 263A provides that same-sex marriages are unenforceable under the laws of this State. The plain language of the constitutional provision gives no exceptions. Thus, same-sex marriages are unenforceable under the State’s laws governing the dissolution of a marriage. The plain language of Section 263A makes very clear that the only way to grant the couple at issue, or similarly situated couples, a divorce or an annulment is to hold that section’s ban on same-sex marriage, or the ban on the recognition thereof, unconstitutional. See Miss.Code Ann. § 93-5-1 (Rev.2013) (“Divorce from the bonds of matrimony may be decreed.... ”); Miss. Code Ann. § 93-5-2 (Rev.2013) (“Divorce from the bonds of matrimony may be granted.... ”); Miss.Code Ann. § 93-7-3 (Rev.2013) (“A marriage may be annulled for any one (1) of the following causes ....”) (emphases added). The supplemental briefing order addresses a nonissue and thus appears to be a delay’tactic.

3. Baker v. Nelson

¶ 16. As an initial matter, the State argues that Baker v. Nelson forecloses Czekala-Chatham’s argument that the Mississippi same-sex marriage bans violate the Equal Protection and Due Process Clauses. In that case, the Minnesota Supreme Court heard a case in which two adult males applied for and were denied a marriage license. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185 (1971). They argued that a prohibition of same-sex marriage, inter alia, deprived them of due process and denied them equal protection of the laws. Id. at 186. The Minnesota Supreme Court found that a prohibition of same-sex marriages did not offend the Constitution. Id. at 186-87. The two men appealed to the United States Supreme Court, which issued a one-sentence opinion that stated “[t]he appeal is dismissed for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972).

¶ 17. It is true that even a summary dismissal for want of a substantial federal question is a disposition on the merits and binds lower courts. Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). However, lower courts are not bound when doctrinal developments indicate that the Supreme Court no longer “brand[s] a question as unsubstantial.” Id. at 344-45, 95 S.Ct. 2281. It is abundantly clear that both general Equal Protection jurisprudence and jurisprudence regarding discrimination against homosexuals have provided doctrinal developments that indicate that the Supreme Court no longer brands this question as unsubstantial. Since “deciding” Baker, the Supreme Court has expanded Equal Protection and found homosexuals deserving of protection against discrimination. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620,134 L.Ed.2d 855 (1996); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); United States v. Windsor, — U.S.-, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).

¶ 18. Most notably, as previously mentioned, the Supreme Court recently granted certiorari to address these very issues. Rule 10 of the Rules of the Supreme Court of the United States states that certiorari must be granted only for “compelling reasons” and, in granting certiorari on a United States court of appeals decision, it considers the following factors:

a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power....

U.S. Supreme Court R. 10(a). This appears the most powerful signal that the issues addressed in Baker are indeed substantial federal questions. See also Windsor, 133 S.Ct. at 2695-96 (addressing a federal question, finding that the Defense of Marriage Act’s discrimination against same-sex marriages violated the Fifth Amendment). Thus, the one-line summary dismissal in Baker v. Nelson no longer has precedential value. See also Baskin v. Bogan, 766 F.3d 648, 659-60 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352, 373-75 (4th Cir.2014); Windsor, 699 F.3d at 178-79; Kitchen v. Herbert, 755 F.3d 1193, 1204-08 (10th Cir.2014); Latta v. Otter, 771 F.3d 456 (9th Cir.2014) (“As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial but pressing federal questions.”); Campaign for Southern Equality v. Bryant, 64 F.Supp.3d 906, 918-20 (S.D.Miss.2014).

4. Equal Protection Clause

¶ 19. The Equal Protection Clause of the United States Constitution provides that no State may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV. This “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 106 5.Ct. 3249, 87 L.Ed.2d 313 (1986). “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440, 105 S.Ct. 3249. “[T]he Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” Id. However, “when a statute classifies by race, al-ienage, or national origin,” the legislation is not presumed valid. Id. “These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others.” Id. Furthermore, “such discrimination is unlikely to soon be rectified by legislative means;” thus, such “laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” Id. A court must also subject a law to strict scrutiny when it impinges “on personal rights protected by the Constitution.” Id. Falling somewhere between rational basis review and strict scrutiny is some form of heightened review in which a law must be substantially related to a legitimate or sufficiently important state interest in order to survive constitutional scrutiny. Id. at 441, 105 S.Ct. 3249. This heightened scrutiny has been used for gender classifications and for classifications based upon illegitimacy. Id. at 440-41, 105 S.Ct. 3249. The Supreme Court has rationalized that such characteristics “generally provide no sensible ground for differential treatment” because they bear no relation to a person’s ability to participate in and contribute to society and reflect outdated notions and prejudices. Id. Thus, courts should look to whether a group has experienced a history of discrimination or “‘been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.’ ” Id. at 441, 105 S.Ct. 3249 (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976)).

a. Level of Scrutiny

¶ 20. The State and the Governor argue that rational basis review applies to bans on same-sex marriage and the recognition thereof. Czekala-Chatham and the ACLU argue that a level of heightened scrutiny applies. The United States Supreme Court has not settled this debate, and the federal courts are split. Furthermore, Czekala-Chatham argues that marriage is a fundamental right, thus the laws must be subjected to a heightened level of scrutiny. The ultimate resolution of these issues is not a necessary one, because Mississippi’s bans on same-sex marriage and the recognition of same-sex marriage fail even under a rational basis review.

b. Rational Basis Review of Mississippi’s Same-Sex Marriage Bans

¶21. Mississippi’s bans on same-sex marriage must be sustained under a rational basis review standard if the classification drawn is “rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Thus, two components must be met to satisfy rational basis review: 1) the State must espouse a legitimate interest, and 2) the classification must be rationally related to that interest.

¶22, The State first argues that the burden of proof is on Czekala-Chatham, and that Czekala-Chatham has the burden of negating every conceivable basis for supporting the Mississippi same-sex marriage bans. Czekala-Chatham has indeed offered arguments negating every basis the State could conceive of to justify the same-sex marriage bans, as Czekala-Chat-ham has put forth arguments that the laws banning same-sex marriage are irrational and arbitrary.

¶ 23. The State argues that Mississippi’s laws pass muster under rational basis review, justifying them with the responsible procreation theory, tradition, and a “wait and see” approach. It also argues that Windsor stands for the proposition that states control the definition of marriage. It first argues that “opposite sex marriages frequently result in pregnancies and offspring, and the legal protections of marriage extend to those procreative unions to encourage their longevity,” thus “[sjanctioning only those marriages is a legitimate State interest.” (Emphasis added.) It concludes that “[ojpposite sex marriages promote stable family environments for the raising of a child by both their biological mother and father,” and that “the State has a legitimate and rational interest in domestic relations laws that promote having both a mother and a father in the home as role models.” First, the State’s argument misrepresents reality—the State does not sanction only procreative unions. Fertility is not a prerequisite for a marriage license in Mississippi. See Miss.Code Ann. § 93-1-5 (Rev.2013). Mississippi issues marriage licenses to the elderly, those prohibited from conjugal relations due to incarceration, the infertile, and any number of other “miscreants,” including those who abuse children. Campaign for Southern Equality, 64 F.Supp.3d at 930-44. This is because the law recognizes that, not only is marriage about more than simply “the right to have sexual intercourse,” or about having positive role models in the home for children (which child abusers and other miscreants are not), it is about something more. Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 2478, 156 L.Ed.2d 508 (2003); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Thus, forbidding same-sex marriage for the purpose of encouraging responsible procreation and a stable home environment with good role models is irrational and underinclusive to the extreme.

¶ 24. This classification is also irrational in that it has utterly no bearing on achieving the state’s purported end, thus it is not “relevant to the achievement” of the state interest. See City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Banning same-sex marriage has not achieved the State’s supposed interest in encouraging responsible heterosexual procreation. In 1997, when the State first statutorily banned same-sex marriage, births to unmarried women made up forty-five percent of the births in Mississippi. In 2004, when the State amended its constitution to ban same-sex marriage, births to unmarried women made up forty-eight percent of births. In 2012, after same-sex marriage had been banned in Mississippi for a solid fifteen years, births to unmarried women constituted an astonishing fifty-five percent of the births in Mississippi. Kids Count Data Center, “Births to Unmarried Women,” available at http://datacenter.kidscount. org/data/tables/7-births-to-u nmarried-women# detailed/2/26/false/868,15,8/any/257,258 (last visited Feb. 24, 2015). It is fairly obvious that banning same-sex marriage is not a rational means of achieving the end of family stability or responsible procreation. Indeed, the State may certainly encourage heterosexual marriage, but it provides no explanation as to why forbidding same-sex marriage encourages heterosexual marriages. Is any rational person to believe that heterosexuals will refuse to get married or rush to get divorced simply because homosexuals can marry? Banning homosexual marriage has no relation whatsoever to encouraging responsible procreation, as homosexual marriage does not harm heterosexual marriage.

¶ 25. Furthermore,

[g]ay and lesbian couples can form stable family units just as well as opposite-sex couples. Gay and lesbian couples can also love and care for children just as well as opposite-sex couples. It makes no sense to exclude them from an institution that promotes stable families and strengthens children. If the purpose of State-recognized marriage is to protect families and children, then the State should expand marriage rights to gay and lesbian couples, not bar them from it.

Campaign for Southern Equality, 64 F.Supp.3d at 943. Additionally, “[gjiven the number of children in our State .., awaiting placement in a stable family environment, it is irresponsible to deny those children the shelter and enrichment that same-sex families can provide.” Id.

¶26, Secondly, the State claims that “traditional marriage is a known quantity ingrained in our laws and culture that has proven its enduring value, over thousands of years.” It argues that “[sjtate sanctioned same sex marriage remains a novel social experiment with unforeseeable but potentially profound consequences. Mississippi’s cautious legislative approach to that novelty, like any other, is inherently rational.” The State’s “tradition” argument is without merit—“tradition” is not a legitimate state interest.

¶ 27. As the Seventh Circuit found, [t]radition per se has no positive or negative significance. There are good traditions, ... bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad.... Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition.

Baskin, 766 F.3d at 667. For example, many aspects of “traditional marriage,” including those involving thousands of years of tradition, could not constitutionally be resurrected in this day and age. To illustrate, “traditional marriage” in Mississippi involved women as property, and a man could legally beat and rape his wife; indeed, a man could legally forcibly rape his wife with whom he was cohabitating in Mississippi until 1993. Bradley v. State, 1 Miss. 156 (1824) (“[L]et the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned.”); 1980 Miss. Laws ch. 450, § 3 (“A person is not guilty of [sexual battery] if the alleged victim is that person’s legal spouse and at the time of the alleged offense such person and the alleged victim are not separated and living apart.”); 1993 Miss. Laws ch. 469 (providing that a spouse could be guilty of sexual battery if the spouse engaged in forcible sexual penetration without the victim’s consent, effective March 27, 1993). Yet, no one could argue with any amount of intellectual credibility that the people of Mississippi could amend the State’s constitution to allow a man to rape or beat his wife and justify such an amendment as having a rational basis because it is “traditional.” But that is exactly what the State illogically argues now—that “traditions” may be made into law merely because they are historically “traditional.” Traditionally, Mississippi and other states also forbade interracial marriage, a position that could not now be justified by that “tradition.” Miss. Const. art. 14, § 263. Tradition may not trample rights, nor is it any sort of rational justification for legislation in and of itself.

¶ 28. The “wait and see” approach advocated by the State also fails to provide a rational basis for discrimination against homosexuals. Such a rationale was rejected as a justification for discrimination in Loving v. Virginia. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The State of Virginia argued that “while there is evidence on both sides of this question, when such a situation exist [sic] it is for the legislature to draw its conclusions and that these conclusions are entitled to wait and unless it can be clearly said that there is no debatable question that a statute of this type cannot be declared unconstitutional.” Oral Argument in Loving v. Virginia, available at htt p:// www.oyez.org/cases/1960-1969/1966/1966_ 395; (last visited Feb. 24, 2015) see also Brief and Appendix on Behalf of Appellee in Loving v. Virginia, 1967 WL 113931. In Loving, the state of Virginia spent much time and effort wringing its hands over the potential psychological effects of interracial marriage on the children produced of such a marriage. The Supreme Court rejected the notion that, simply because long-term effects on children were unknown, the state was justified in prohibiting the “novelty” of interracial marriage. Additionally, the States’ regulation of marriage is subject to constitutional guarantees. United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 2692, 186 L.Ed.2d 808 (2013). “[T]he judiciary does not defer to the voters’ decision to deprive others of constitutional rights.... The political process does not enforce individual constitutional rights. The judiciary does.” Campaign for Southern Equality, 64 F.Supp.3d at 945. “The Constitution cannot yield to the passions of the majority.” Id. at 946 n. 47. Indeed, “a poll released in 2011 suggested that ‘nearly half of our State’s majority political party thought interracial marriage should be unlawful.” Id. at 947 (second emphasis added).

If the passage of 50 years has had such a negligible impact on the public’s opinion of interracial marriage in the Deep South, it is difficult to see how gay and lesbian Mississippians can depend on the political process to provide them any timely relief. And while they wait and see how the political process will play out, their legal rights and those of their children will continue to be denied.

Id. at 947. Even the Mississippi Constitution recognizes that the voters may not violate the United States Constitution. It provides that the people of Mississippi may later amend their constitution, “[p]rovided, [s]uch change be not repugnant to the constitution of the United States.” Miss. Const. art. 3, § 6.

¶ 29. In United States v. Windsor, the Supreme Court found Section 3 of the Defense of Marriage Act (DOMA), a statute similar to Mississippi’s ban on same-sex marriage, unconstitutional under the Fifth Amendment, finding that it had no legitimate purpose. Windsor, — U.S. -, 133 S.Ct. 2675. The DOMA provision at issue defined “marriage” and “spouse” as used in federal statutes and regulations as opposite-sex partners only, excluding same-sex partners. Id. at 2683. The federal law was not as extreme as the Mississippi law is. However, it precluded same-sex spouses from the benefits and obligations provided by federal law. The Court noted that DOMA “seeks to injure” same sex spouses, and in doing so, violated “basic due process and equal protection principles.” Id. at 2693. “The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.” Id. (internal quotations omitted). It opined that “[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma.” Id. The Court found that the “essence” of DOMA was to interfere with the equal dignity of same-sex marriages, and that the history of DOMA’s enactment and its own text demonstrated that fact. Id. Indeed, “DOMA [wrote] inequality into the entire United States Code.” Id. at 2694. “The principal purpose [was] to impose inequality, not for other reasons like governmental efficiency.” Id. Furthermore, DOMA “humiliate[d] tens of thousands of children now being raised by same-sex couples,” as well as financially harmed those children. Id. at 2694-95. It concluded that “the principal purpose and the necessary effect of [DOMA] are to demean those persons who are in a lawful same-sex marriage.” Id. at 2695. “[N]o legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Id. at 2696.

¶ 30. Windsor did recognize that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[protection of offspring, property interests, and the enforcement of marital responsibilities.’” Windsor, 133 S.Ct. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 214, 87 L.Ed. 279 (1942)). However, none of these legitimate interests—protecting offspring, protecting property interests, and enforcing marital obligations—is served by banning same-sex marriage. Instead, same-sex marriage bans actively frustrate these laudable goals by failing to protect the children of same-sex spouses, failing to protect the property interests of same-sex spouses, and allowing same-sex spouses to escape marital obligations and responsibilities. Moreover, Windsor specifically notes its applicability when the State uses its power in defining the marital relation in a way that confers upon a class “a dignity and status of immense import” in order the enhance “the recognition, dignity, and protection of the class in their own community.” Windsor, 133 S.Ct. at 2692. Mississippi does not use its power to define the marital relation in a way that confers dignity—it uses it to discriminate and demean. Or, as the Supreme Court put it in Windsor, Mississippi, like the federal government did, imposes restrictions and disabilities on a class of citizens. Id.

¶ 31. While it is true that Windsor examined state-sanctioned same-sex marriage, and noted the States’ power to regulate marriage, the basic premise that DOMA was passed with animus—with the intent to demean and injure—can also be attributed to the Mississippi bans. WHien the Legislature amended the Mississippi Code in 1997 to prohibit same-sex marriage, it did so on the heels of a Hawaiian case that insinuated that a right to same-sex marriage may exist, and on the heels of DOMA. Campaign for Southern, Equality, 64 F.Supp.3d at 914; Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993); Pub.L. No. 104-199, 110 Stat. 2419 (1996). The Act was categorized as “Domestic Relations—Prohibition against Same-Sex Marriages” and described as “An act to amend Section 93—1—1, Mississippi Code of 1972, to prohibit homosexual marriages and to provide that homosexual marriages recognized in another state shall not be recognized in this state and shall be declared void in this state; and for related purposes.” 1997 Miss. Laws, ch. 301. The purpose of the 2004 constitutional amendment was “to provide that marriage may take place and may be valid under the laws of this State only between a man and a woman; to provide that 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.” 2004 Miss. Laws, ch. 620. This amendment was proposed on the heels of a Massachusetts case legalizing same-sex marriage. Goodridge v. Dep’t of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003). The history and text of Mississippi’s bans on same-sex marriage make clear that these laws were enacted in order to injure and disparage homosexuals, by making them and them marriages inferior. Indeed, “the design, purpose, and effect of Mississippi’s same-sex marriage ban is to single out same-sex couples and ensure that they cannot marry in Mississippi or have their out-of-state marriages recognized in Mississippi.... And the effect of the bill was (and is) to label same-sex couples as different and lesser, demeaning their sexuality and humiliating their children.” Campaign for Southern Equality, 64 F.Supp.3d at *948. Furthermore, that the admitted public policy of the State is so strong that it requires refusal to recognize same-sex marriages even when lawful out of state and even for purposes of a divorce, when it recognizes other void marriages for at least some purposes (see in fra), betrays that the true purpose of the same-sex marriage bans is animus.

¶ 32. Thus, not only can the State articulate no legitimate purpose for these bans, as the purpose is clearly animus, the State also fails to show how the bans bear any relation whatsoever to its stated purpose of family stability. Thus, these bans clearly violate the Equal Protection Clause of the Fourteenth Amendment, and this Court should not hesitate to find them unconstitutional.

c. Out-of-State Marriages

¶ 33. Czekala-Chatham also argues that the State has no legitimate interest in refusing to recognize same-sex marriages legally entered into in other states. She notes that the State recognizes other marriages that are not otherwise valid for purposes of estate cases or divorce cases. See George v. George, 389 So.2d 1389 (Miss.1980) (recognizing a common-law marriage that was validly celebrated in Georgia for purposes of divorce, despite Mississippi’s failure to recognize common-law marriage in general); Miller v. Lucks, 203 Miss. 824, 36 So.2d 140 (948) (recognizing interracial marriage for purposes of estate case). Furthermore, even bigamous marriages and incestuous marriages, both void in Mississippi, are causes for divorce, thus parties may receive a divorce from the bonds of these void marriages. Miss. Code Ann. § 93-5-1 (Rev.2013) (“Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following ... causes: .., Marriage to some other person at the time of the pretended marriage between the parties.... Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law....”). She points to Windsor as support that no legitimate state purpose exists by refusing to recognize same-sex marriages legal in the state where celebrated. Because Mississippi treats opposite-sex marriages that would be invalid if performed in Mississippi differently than it treats valid-where-performed same-sex marriages, it violates the Equal Protection Clause, as no rational basis exists for such treatment. The only rationale for treating these married same-sex couples differently is to express disapproval for these marriages, or in other words, animus. Based upon the above analysis of the statutes under rational basis review, Czekala-Chatham is correct— the State has no rational basis for treating married, same-sex couples differently than married, opposite-sex couples, who can divorce in Mississippi.

CONCLUSION

¶ 34. I can discern no legitimate purpose for ordering supplemental briefing, and, consequently, I object to doing so. The issue of the constitutionality of these bans is squarely before this Court, and ordering briefing on the issue of a divorce that the chancery court could not currently grant given the bans on recognition of same-sex marriage is merely a delay tactic. We should decide the issue before us and ultimately find the bans on same-sex marriage and the recognition thereof found in Mississippi Code Sections 93-1-1, 93-1-3, and the Mississippi Constitution article IV, Section 263A, unconstitutional, because, on the most basic level, Mississippi’s bans on same-sex marriage and its recognition violate the Equal Protection Clause under rational basis review. Not only are many of the interests advanced by the State illegitimate interests, even to the extent the State does espouse legitimate interests, banning same-sex marriage has absolutely no rational relation to any of those interests. It does not further them in any way, and the classification claiming to further those interests is based upon animus. On that basis alone, this Court should reverse the trial court and remand the case, allowing Czekala-Chatham to proceed in her divorce action.

KITCHENS, J., JOINS THIS SEPARATE WRITTEN STATEMENT.

      . The order for supplemental briefing also includes the following statement: “Both parties agreed that this matter should be stayed until an opinion issues from the United States Supreme Court.” A review of the argument record indicates that is not a completely accurate statement. It is accurate that counsel for the State unequivocally agreed to a stay of this action. However, the very last position taken by counsel for the Appellant was not
        that he agreed to a stay, but rather than he would defer to this Court on the issue of a stay.

      . On January 16, 2015, the United States Supreme Court granted certiorari in several same-sex marriage cases and limited the grant of certiorari to the following questions: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” Order List: 574 U.S., available at http://www. supremecourt.gov/orders/courtorders/011615 zr_f2q3.pdf (last visited February 23, 2015). The Supreme Court’s decision in these consolidated cases will likely, but not definitely, govern our resolution in this case.

      . Ironically, this provision was inserted in the same location as the now-defunct provision that provided that "[t]he marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more of negro blood, shall be unlawful and void.” Miss. Const, art. 14, § 263. This section of the Mississippi Constitution was repealed in 1987, despite having been deemed unconstitutional in 1967 by Loving v. Virginia. 1987 Miss. Laws ch. 672; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

      . Miscegenation statutes were justified on eerily similar grounds. See Loving v. Virginia, 388 U.S. 1, 5-12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78, 82 (1966) (noting "that there is an overriding state interest in the institution of marriage”); Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, 751-56 (1955) (upholding miscegenation laws) ("Marriage ... is subject to the control of the States.”) (The Supreme Court "has on numerous occasions invoked the provisions of the Fourteenth Amendment to invalidate State legislation and decision with respect to political and civil rights, but it has not denied to the States the right to deal with their social and domestic problems and to legislate in regard to the marriage relation. On the contrary, it has been at pains to exclude that relation from the effects of its holdings.”) ("The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens.”); Jones v. Lorenzen, 441 P.2d 986 (Okla.1965); State v. Brown, 236 La. 562, 108 So.2d 233, 234 (1959) (“[M]arriage is a status controlled by the states[.]”) (The state has a legitimate interest "in preventing the propagation of half-breed children” because those children "have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened ... with ⅛ feeling of inferiority as to their status in the community that may affect their hearts- and minds in a way unlikely ever to be undone.’ ”); Frasher v. State, 3 Tex.App. 263 (1877) (stating that the proper place to change the law is the legislature, not the courts) (“It has always been the policy of this state to maintain separate marital relations between the whites and the blacks. It is useless for us to cite the different statutes on this subject, enacted from time to time, showing that the people of Texas are now, and have ever been, opposed to the intermixture of these races. Under the police power possessed by the states they undoubtedly, in our judgment, have the power to pass such laws. If the people of other states desire to have an intermixture of the white and black races, they have the right to adopt such a policy. When the Legislature of this state shall declare such a policy by positive enactment, we will enforce it; until this is done, we will not give such a policy our sanction.”).

      . The history of animus against homosexuals in Mississippi even includes this Court holding homosexuality against litigants in its opinions. See White v. Thompson, 569 So.2d 1181 (Miss. 1990) (upholding removal of custody from mother and a grant of custody to grandparents based in part on mother's lesbian relationship, and upholding visitation restriction that mother must conduct her visitation outside the presence of her lesbian partner); Weigcmd v. Houghton, 730 So.2d 581 (Miss. 1999) (denying father’s request for modification of custody based on stepfather's assaults on mother of child and drunkenness in the presence of the child and mother’s eviction from her apartment, based partially on the father's homosexuality as a factor considered heavily in his "moral fitness”); Bowen v. Bowen, 688 So.2d 1374 (Miss.1997) (affirming chancellor's award of custody of one child to father, who allegedly contributed to rumors that mother was in a lesbian relationship, because of mere rumors, not evidence, that the mother was in a lesbian relationship; this Court affirmed, and quoted with authority, the chancellor’s ruling that “[t]he rumors that Jeremy has heard have hurt him .... there’s evidence that a child on the school bus told Jeremy that he heard that David had lost Linda to another woman. Which if there’s anything that will cut a child to the quick, I can’t imagine anything that would hurt a boy more for another child to tell him something like that unless he was to tell him that his father was homosexual. And I don’t know which would be worse,... And whether the relationship is true or not true, it’s still hurting these children. And I realize that anybody can go out anywhere and ... people can start rumors on anybody. And it’s a hard thing to overcome once it’s started. And I realize that. But in this case I think Linda could have and I think Linda should have done something to alleviate those rumors even if it was cutting off her relationship with Lynn.”); Plaxico v. Michael, 735 So.2d 1036 (Miss. 1999) (upholding trial court's dismissal of invasion of privacy claim in which ex-husband peeped into former wife’s bedroom window and took nude photographs of his wife’s lesbian lover, because the photos were taken to advance ex-husband’s custody case and his actions were deemed necessary to protect the welfare of his minor child, and thus the Court deemed his voyeuristic actions which invaded the lesbian lover’s privacy acceptable).

      . I recognize that the failure to grant Czeka-la-Chatham a divorce may also violate other constitutional provisions; however, given the clear violation of the Equal Protection Clause, I do not feel it necessary to address any other potential violations.