Full opinion text
MEMORANDUM OPINION AND ORDER CARLTON W. REEVES, District Judge. Two same-sex couples brought this lawsuit challenging Mississippi’s laws prohibiting same-sex marriage. One couple wishes to marry in Mississippi; the other was married out-of-state and wants Mississippi to recognize the marriage. A group advocating for gay and lesbian equality has joined their effort to seek relief on behalf of its members. The plaintiffs claim that Mississippi’s constitutional and statutory provisions limiting same-sex marriage (the “same-sex marriage ban”) discriminate against them and other same-sex couples, depriving them of rights guaranteed under the Fourteenth Amendment to the United States Constitution. They have moved for a preliminary injunction to stop the State from enforcing the ban,' as well as a declaration that it is unconstitutional. The State of Mississippi defends its laws. It argues that same-sex marriage should be defined by tradition and left up to the legislature and the voters. In the event it loses, it asks the court to stay the preliminary injunction so that the State may appeal without disrupting the status quo. The court has considered the parties’ briefs and asked questions of their attorneys at a hearing held November 12, 2014. There are no disputed facts. The only evidence consists of uncontested affidavits from the plaintiffs. The principal questions are matters of law. That law is relatively straightforward. This case is one of many in which gay and lesbian couples ask the judiciary to finally resolve whether same-sex marriage bans violate the United States Constitution. In the wake of United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), nearly every court presented with the issue has found such bans unconstitutional. The majority of Mississippians disapprove of same-sex marriage. They have made that abundantly clear through every channel in which popular opinion can be voiced. This court does not believe that the 86% of Mississippians who voted against same-sex marriage in 2004 did so with malice, bigotry, or hatred in their hearts. Many were simply trying to preserve their view of what a marriage should be, whether by religion or tradition. They deserve an explanation as to why same-sex marriage is now sweeping the country. It has become clear to the court that people marry for a number of reasons: marriage is a profound source of emotional support; marriage is a private and public expression of commitment; some marry in exercise of their religious beliefs; some do so because it opens the door to economic and government benefits; there are those who marry to present a certain status or image; and others do it for the noble purpose of legitimizing their children. In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions: Can gay and lesbian citizens love? Can gay and lesbian citizens have long-lasting and committed relationships? Can gay and lesbian citizens love and care for children? Can gay and lesbian citizens provide what is best for their children? Can gay and lesbian citizens help make their children good and productive citizens? Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity? Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice? Answering ‘Tes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage. The court concludes that Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. I. Background A. The Parties 1. Campaign for Southern Equality The Campaign for Southern Equality (CSE) is a non-profit advocacy group based in Asheville, North Carolina, that works across the South to promote “the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life.” Docket No. 1, at 3. CSE brought this suit on behalf of its members who currently live in Mississippi and claim harm from Mississippi’s same-sex marriage ban. Id. 2. Rebecca “Becky” Bickett and Andrea Sanders Becky Bickett and Andrea Sanders are partners who have shared a committed relationship with each other for 10 years. Together they raise twin 16-month-old boys, whom Becky legally adopted. Andrea has no parental rights. Becky and Andrea were introduced to each other by their sisters. Shortly thereafter, they began dating. After Hurricane Katrina destroyed their homes in 2005, they started living together. Becky and Andrea have lived together as a couple ever since. At their Harrison County home, they regularly host holiday events and cook-outs with their families, with whom they are close. They enjoy going to the beach, car shows, parades, and street fairs with their boys. Becky and Andrea both graduated from the University of Southern Mississippi. Becky previously worked for Northrop Grumman — a job she sought out because it was one of the few local employers that offered domestic partnership benefits to Andrea — but her office closed. She is currently seeking employment in geographic information systems mapping, a field in which she has experience. Andrea stays at home to care for their boys. In 2010, Becky and Andrea had a commitment ceremony. In March 2014, they sought to make their commitment legal by applying for a marriage license in the Hinds County Circuit Clerk’s office. They were denied a marriage license because they are both women. 3. Joce Pritchett and Carla Webb Joce Pritchett and Carla Webb have been a couple for 11 years. They currently live in Hinds County, where they raise two children, ages six and two. Joce carried the children and is their lawful parent. Carla has no parental rights. Joce graduated from Mississippi State University with a degree in civil engineering. Carla graduated from Millsaps College and the University of Mississippi School of Dentistry. Both own small businesses: Joce works as a civil engineer and Carla is an endodontist. Joce and Carla’s six-year-old daughter told them that she wanted them to marry, and Joce and Carla agreed. They traveled to Maine in September 2013 and got married. Upon returning to Mississippi, Joce and Carla held a ceremony at their home to celebrate their marriage, which was witnessed by approximately 100 friends and family members. Joce and Carla say that their family functions as any other: they take trips to Florida, play with their kids at the park, and work to keep their house in order. Due to Mississippi’s refusal to recognize same-sex marriage, Joce and Carla claim that their family is burdened by Carla’s lack of parental rights, significant financial and estate planning obstacles, and the regular need to explain to others why their children have two mothers. 4. The Defendants Governor Phil Bryant is sued in his official capacity, as is customary in constitutional challenges like this. He is the State’s “supreme executive officer” and is statutorily required to “see that the laws are faithfully executed.” Miss.Code Ann. T — 1—5(a), (c); see Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss.2008) (“Execution is at the core of executive power.”). Attorney General Jim Hood is sued in his official capacity. He is required to “intervene and argue the constitutionality of any statute when notified of a challenge thereto.” Miss.Code Ann. § 7-5-1; see Kennington-Saenger Theatres v. State ex rel. Dist. Att’y, 196 Miss. 841, 18 So.2d 483, 486 (1944) (“As to all litigation, the subject-matter of which is of state-wide interest, the Attorney General alone has the right to represent the state.”). Hinds County Circuit Clerk Barbara Dunn is charged with issuing marriage licenses and keeping records relating to marriage licenses in Hinds County. See Miss.Code Ann. §§ 41-57-48, 93-1-5, 93-1-11, & 93-1-23. She too has been sued in her official capacity. B. Mississippi Law The plaintiffs seek to preliminarily enjoin the defendants from enforcing Mississippi Code Section 93-1-1(2) and Section 263A of the Mississippi Constitution. 1. Mississippi Code Section 93-1-1(2) On May 5, 1993, the Supreme Court of Hawaii became the first in the nation to recognize the possibility that same-sex couples had a right to marry. Baehr v. Lewin, 74 Haw. 530, 571-80, 852 P.2d 44 (1993) (ruling that the denial of marriage to same-sex couples may violate the equal protection clause of the Hawaii constitution). The Hawaii proceedings were later preempted by a state constitutional amendment, but the seed of same-sex marriage as a legal right had been planted. In response, Congress passed the Defense of Marriage Act (DOMA) in 1996. Pub. L. No. 104-199, 110 Stat. 2419 (1996), invalidated in part by Windsor, 133 S.Ct. at 2675. DOMA excluded same-sex partners from the federal definitions of “marriage” and “spouse.” Id. It is not clear whether Mississippi’s laws expressly forbade same-sex marriage at that time. But in the wake of Hawaii’s ruling and with the introduction of DOMA, some Mississippi officials thought it imperative to outlaw same-sex marriage to protect Mississippi’s interests. In 1996, Governor Kirk Fordice, an ardent opponent of same-sex marriage, signed an executive order banning same-sex marriage in Mississippi. Ronald Smothers, Mississippi Governor Bans Same-Sex Marriage, N.Y. Times, Aug. 24, 1996. Mississippi was the first State to attempt to do so by executive order. Id. The following year, in February 1997, the Mississippi Legislature passed a bill prohibiting same-sex marriage. Governor Fordice signed the bill into law. The law states: Any 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). This provision amended Mississippi’s domestic relations laws, officially preventing same-sex marriages from being conducted or recognized in Mississippi. 2. Section 263A of the Mississippi Constitution The amendment to the Mississippi constitution that bans same-sex marriage arose from similar concerns. By 2003, two cases were perceived to have substantially advanced same-sex marriage. The United States Supreme Court found that state laws criminalizing private, consensual sodomy violated the Fourteenth Amendment’s Due Process Clause. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The Massachusetts Supreme Judicial Court (that state’s highest court) then found that its ban on same-sex marriage was unconstitutional under its state constitution. Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003). In Mississippi, these decisions fermented a debate on whether Mississippi should amend its constitution to curtail any impact that these rulings might have on State marriage laws. The goal was to stop any recognition within Mississippi of marriages legally performed outside the State. See Jean Gordon, ‘Issue Not Going Away, ’ The Clarion-Ledger, Oct. 29, 2004 (reporting that according to Rep. Jim Barnett, the principal author of the marriage amendment, the Massachusetts ruling “prompted” Mississippi’s constitutional amendment). Mississippi lawmakers swiftly passed legislation allowing the voters to amend the State constitution and enshrine their views on same-sex marriage in a more permanent form. In November 2004, an overwhelming majority of Mississippi’s voters approved the constitutional amendment. It states: 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. XIV, § 263A. II. Threshold Questions A. Standing Article III of the United States Constitution limits federal courts to deciding actual cases or controversies. U.S. Const, art. Ill, § 2. Standing is a vital component of the case-or-controversy requirement. Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 386 (5th Cir.2003). Although not raised by the parties, the court is obliged to consider whether the plaintiffs have standing to bring forth their complaint in this forum. FW/PBS, Inc. v. City of Dall., 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines.”). As the party invoking federal jurisdiction, the plaintiffs bear the burden of establishing the three essential elements of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt. Council 364 F.3d 269, 272 (5th Cir.2004). “To show injury in fact, a plaintiff must demonstrate an injury that is concrete, distinct and palpable, and actual or imminent.” Id. (citation and quotation marks omitted). “[I]njury in fact is the invasion of a legally protected interest.” Pederson v. La. State Univ., 213 F.3d 858, 870-71 (5th Cir.2000) (citation and quotation marks omitted). The second requirement is satisfied when there is a sufficient causal connection between the plaintiffs injury and the defendant’s conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing’s redressability requirement is satisfied when it is “likely” that the injury will be “redressed by a favorable decision.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). When considering whether a plaintiff has standing, a court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A case with multiple plaintiffs survives as long as at least one plaintiff has standing. Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Taking as true the allegations in the complaint, it is evident that Becky Bickett, Andrea Sanders, Joce Pritchett, and Carla Webb have standing. These couples are all residents of Mississippi, where they are subject to laws which deny Becky and Andrea the right to marry and deny recognition of Joce and Carla’s out-of-state marriage. Mississippi law causes them other substantial harms affecting not only their lives, but the lives of their children as well. The tangible injuries alleged by the plaintiffs include the denial of tax benefits and denial of the protection of the State’s estate laws. Docket No. 1, at 10-11; see, e.g., Miss.Code Ann. §§ 27-7-31(2) (allowing married persons to file joint tax returns); 27-7-21(c) (giving married couples a $12,000 joint income tax exemption each year); 41-37-25(b) (providing that surviving spouses are among the individuals authorized to consent to the performance of an autopsy); 91-5-25 (granting surviving spouses the right of election if the will does not contain satisfactory provisions); 91-5-27 (granting surviving spouses rights to share in the deceased spouse’s estate where the will does not provide for them); 91-7-63 (granting surviving spouses first preference to serve as administrator of intestate estate). Plaintiffs also claim intangible harms, stating that “Defendants stigmatize gay couples, their children, and their families by denying them the dignity and stature afforded to married couples through governmental recognition of their most cherished relationships.” Docket No. 1, at 15. “Stigmatic injury stemming from discriminatory treatment is sufficient to satisfy standing’s injury requirement if the plaintiff identifies some concrete interest with respect to which he or she is personally subject to discriminatory treatment and that interest independently satisfies the causation requirement of standing doctrine.” Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir.2014) (citation, quotation marks, brackets, and ellipses omitted). Perhaps the most significant stigmatic injury suffered by the plaintiffs arises from the fact that one plaintiff in each couple lacks parental rights over the children she loves and is raising. See Docket No. 1, at 9. When Becky and Andrea sought a marriage license from -the Hinds County Circuit Clerk, they were denied because they are a same-sex couple. The denial of this license constitutes an injury for standing purposes. See Bostic, 760 F.3d at 371. Becky and Andrea’s denial can be traced to Mississippi’s marriage laws, defended here by the Attorney General. Declaring those' laws unconstitutional and enjoining their enforcement would redress their injuries. Joce and Carla’s situation is slightly different because they were married in Maine. Nevertheless, their economic and stigmatic injuries are otherwise identical to Becky and Andrea’s, and they too would see those injuries remedied if the defendants were enjoined from enforcing Mississippi’s same-sex marriage ban. CSE also has standing to sue on behalf of its members. Its members allegedly suffer the same injuries as the plaintiffs, plus some of the injuries imposed by State law which do not appear to’ be imposed upon the plaintiffs. See, e.g., Miss. Code Ann. §§ 21-29-329(1) (authorizing municipalities “to allow those spouses who are receiving retirement benefits ... to continue to receive the spouse retirement benefits for life even if the spouse remarries.”); 25-11-114 (granting certain benefits to surviving spouses of public employees who die prior to retirement); 25-15-13 (providing life and health insurance coverage eligibility to spouses of state employees). At oral argument, counsel for plaintiffs stated that she is aware of gay and lesbian Mississippians who are denied the benefits Mississippi law affords spouses of public employees, due to their inability to marry their partner. See infra Part IV.C. Associational standing is satisfied when “(1) the association’s members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir.2006) (citation omitted). The allegations in the complaint support that CSE’s members would independently have standing to seek the relief described in this suit alongside the individual plaintiffs, and would be satisfied by a judgment against these defendants. It also is evident that CSE’s mission is aligned with its goals in this suit. Additional members need not participate because the questions presented are legal, not factual. Accordingly, all of the plaintiffs have standing to bring these claims. B. Baker v. Nelson The State argues that the plaintiffs’ claims are foreclosed by Baker v. Nelson. In that case, Richard Baker claimed that his constitutional rights were violated when he was denied a license to marry a man. 291 Minn. 310, 191 N.W.2d 185 (1971). The Supreme Court of Minnesota found that he had no such right under the Due Process or the Equal Protection Clauses of the Fourteenth Amendment. Id. at 186. The United States Supreme Court dismissed his appeal, stating in a one-sentence order that it failed to present “a substantial federal question.” 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Supreme Court has instructed that summary dismissals “do not ... have the same precedential value here as does an opinion of this court after briefing and oral argument on the merits.” Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (citation omitted). It has also instructed that “unsubstantial” federal questions remain so “except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (citation omitted and emphasis added). This suggests that when summary dismissals are challenged, lower federal courts should examine subsequent Supreme Court decisions issued after full briefing and oral argument, if any, and consider whether they have cast doubt upon the summary dismissal. A reviéw of the last four decades bf constitutional law shows that Baker has effectively been preempted by major doctrinal developments in anti-discrimination law and same-sex rights. When Baker was decided in Í972, sex classifications did not receive heightened scrutiny and gay and lesbian citizens were not entitled to equal dignity under the law. Forty-two years later, the law in these areas has changed fundamentally. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.”); Lawrence, 539 U.S. at 567, 123 S.Ct. 2472 (“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”); Windsor, 133 S.Ct. at 2694 (finding DOMA unconstitutional in part because “it humiliates tens of thousands of children now being raised by same-sex couples”). Windsor is the most illustrative example. When the case was before the Second Circuit, that court looked at the doctrinal developments and concluded that Baker lacked “resonance.” Windsor v. United States, 699 F.3d 169, 178 (2d Cir.2012). A dissent argued that “Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court.” Id. at 194 (Straub, J., dissenting). Windsor’s opponents then asked the Supreme Court to reverse, in part by emphasizing BakeVs “precedential effect.” Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives at 26, United States v. Windsor, No. 12-307 (U.S. Jan. 22, 2013). The case presented a prime opportunity to discuss the ongoing relevance of Baker to same-sex marriage rights. Not a single Justice, however, thought the case worthy of engagement. It was not cited in the majority opinion or any of the three dissenting opinions. Instead, the Court explained in great detail the harmful effects marriage restrictions have on gay and lesbian citizens and their children. Windsor, 133 S.Ct. at 2694-95. This reasoning is fundamentally contrary to Baker. If Baker lacked resonance when the Second Circuit resolved Edith Windsor’s case, it was dead in the water when the Supreme Court was finished with it. Here, the State argues that the Supreme Court has never explicitly overruled Baker. But that is not the standard. The Court’s instruction was to examine “doctrinal developments.” Hicks, 422 U.S. at 344, 95 S.Ct. 2281. They are legion. At oral argument, despite its valiant effort, the State could not persuasively explain otherwise. Nor could it explain what further doctrinal developments could possibly be necessary to render Baker irrelevant. Four decades of major changes in this area of the law are enough. Baker does not prevent this Court from reaching the merits of the plaintiffs’ claims. This conclusion aligns with decisions from four out of the five circuit courts of appeal to consider the constitutionality of same-sex marriage bans post-Windsor. Bostic, 760 F.3d at 375; Baskin v. Bogan, 766 F.3d 648, 660 (7th Cir.2014); Latta v. Otter, 771 F.3d 456, 466-68, 2014 WL 4977682, at *3 (9th Cir.2014); Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir.2014). But see DeBoer v. Snyder, 772 F.3d 388, 401-02 (6th Cir.2014). As Judge Posner wrote, “Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.” Baskin, 766 F.3d at 660. This issue merits a final aside. Last month, the Supreme Court allowed same-sex marriage to proceed in Idaho, Indiana, Nevada, Oklahoma, Utah, Virginia, and Wisconsin. Adam Liptak, Supreme Court Allows Same-Sex Marriage in Idaho, N.Y. Times, Oct. 10, 2014; see Rainey v. Bostic, — U.S. -, 135 S.Ct. 286, 190 L.Ed.2d 140 (2014) (declining to review the Fourth Circuit’s decision finding Virginia’s same-sex marriage ban unconstitutional); Walker v. Wolf, — U.S. -, 135 S.Ct. 316, 190 L.Ed.2d 142 (2014) (declining to review the Seventh Circuit’s decision finding Indiana and Wisconsin’s same-sex marriage bans unconstitutional); Herbert v. Kitchen, — U.S. -, 135 S.Ct. 265, 190 L.Ed.2d 138 (2014) (declining to review the Tenth Circuit’s decision finding Utah’s same-sex marriage ban unconstitutional). Even more recently it has declined to stay same-sex marriage in Kansas and South Carolina. Robert Barnes, Supreme Court Clears Way for Same-Sex Marriage in S.C., Wash. Post, Nov. 20, 2014. Several of these States asked the Supreme Court to rule against same-sex marriage based on Baker. E.g., Petition for a Writ of Certiorari at 4, Herbert v. Kitchen, No. 14-124 (U.S. Aug. 5, 2014) (“the panel majority’s decision contravenes this Court’s own decision in Baker v. Nelson ”); Emergency Application of Governor C.L. “Butch” Otter to Stay Mandate Pending Disposition of Applications for Stay Pending Rehearing And Certiorari at 16-17, Otter v. Latta, No. 14A374 (U.S. Oct. 8, 2014) [hereinafter Idaho Brief] (“Another indication of a good prospect of reversal by this Court is that the Ninth Circuit’s decision conflicts with this Court’s decision in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972).... Baker will be highly relevant because it decided the very . issue presented here.”). The Court could have granted these petitions and issued short, per curiam decisions reversing the Fourth, Seventh, Ninth, and Tenth Circuits. The Justices have not hesitated to use that device in the past. See Johnson v. City of Shelby, Miss., — U.S. -, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (per curiam); Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam). But they did not correct same-sex marriage. The fact that the Court declined to halt same-sex marriage in so many states has no legal meaning in and of itself, but casts further doubt on the continued relevance of Baker. The undersigned will proceed to the motion for preliminary injunction. III. The Plaintiffs’ Motion for Preliminary Injunction A. Legal Standard To receive a preliminary injunction, the movant must show “(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the defendant; and (4) that the injunction will not disserve the public interest.” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir.2012) (citation omitted). “Each of these factors presents a mixed question of fact and law.” Id. (citation omitted). “A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four ... prerequisites.” Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985). B. Substantial Likelihood of Success on the Merits The movant’s likelihood of success is determined by substantive law. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir.1997). Under the Fourteenth Amendment, a state may not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today’s issue, then, it is worth considering some of those historical changes. In 1896, the Supreme Court found that “separate schools for white and colored children” did not violate the Fourteenth Amendment. Plessy v. Ferguson, 163 U.S. 537, 544, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). In 1954, though, the Court ruled that racially segregated schools were inherently discriminatory and unconstitutional. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). In 1872, a woman was denied a law license solely because she was a woman. Bradwell v. Illinois, 83 U.S. 130, 16 Wall. 130, 21 L.Ed. 442 (1872). The Equal Protection Clause was essentially irrelevant when it came to women. Ninety-nine years passed before the Court “ruled in favor of a woman who complained that her State had denied her the equal protection of its laws.” Virginia, 518 U.S. at 532, 116 S.Ct. 2264 (citation omitted). In 1986, the Supreme Court said a state could criminalize consensual sex between two men in the privacy of their home. Bowers v. Hardwick, 478 U.S. 186, 188-89, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The Court reversed course within two decades. “Bowers was not correct when it was decided, and it is not correct today,”-it explained. Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens .are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life. The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be. This was always a risk of our representative democracy. James Madison wrote that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Federalist No. 10. He and his colleagues “knew times can blind us to certain truths.” Lawrence, 539 U.S. at 579, 123 S.Ct. 2472. Mistakes would be made. In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show “that the laws once thought necessary and proper in fact serve only to oppress.” Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person’s rights, and the case must be resolved in his or her favor. Through our independent judiciary, we now know that the government cannot systematically exclude women from jury service. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The government cannot deny citizens their right to possess handguns, even if most people in certain cities disagree. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). And the government cannot ban library books the majority finds objectionable. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982). “An elective despotism was not the government we fought for.” Thomas Jefferson, Notes on the State of Virginia, Query 13 (1785). The judiciary enforces individual rights against the tyranny of the majority. It does not matter how political the issue; how reviled the individual; or how vocal, politically savvy, and passionate the majority. That is its duty under Article III of the United States Constitution. It is with this understanding that the court considers same-sex marriage. 1. Due Process The plaintiffs claim that Mississippi’s same-sex marriage ban “impinge[s] on the fundamental right to marry” guaranteed by the Due Process Clause. Docket No. 1, at 15. They assert that “Defendants stigmatize gay couples, their children, and their families by denying them the dignity and stature afforded to married couples through governmental recognition of their most cherished relationships.” Id. The defendants respond that there is no fundamental right to same-sex marriage. Docket No. 22, at 17. Defendants’ argument is predicated on specific language in Washington v. Glucksberg, in which the Supreme Court stated that substantive due process analysis has two primary features: “specially protect[ing] those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” and requiring “a careful description of the asserted fundamental liberty interest.” 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citations and quotation marks omitted). The court sees it differently. Relying on Supreme Court case law, the court concludes that there is no new fundamental right at issue. The question is not whether there is a right to same-sex marriage; it is whether gay and lesbian people, like any other group of people, have “the freedom of choice to marry.” Kitchen, 755 F.3d at 1210 (quoting Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)). This court follows the view of the majority of circuits—the Fourth, Ninth, and Tenth—in holding that same-sex couples have the right to marry. Supreme Court jurisprudence, on the fundamental right to marry sheds light on how the court reaches its conclusion. Again, the Due Process Clause prohibits a state from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Supreme Court has not precisely defined “liberty.” See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The term includes a broad range of interests intrinsic to the meaning of freedom. These interests include “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, ... [and] to worship God according to the dictates of his own conscience.” Id. (citations omitted). In short, liberty embraces those rights which are fundamental to a free society. See Poe v. Ullman, 367 U.S. 497, 541, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) (arguing that due process protects, “those concepts which are considered to embrace those rights which are fundamental; which belong to the citizens of all free governments”) (quotation marks, citation, and ellipses omitted). The Supreme Court has made clear that “liberty” extends beyond an enumerated list of constitutional guarantees. The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quoting Justice Harlan’s dissent in Poe) (brackets and ellipses omitted). “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id. at 851, 112 S.Ct. 2791. One of the fundamental rights included in the idea of liberty is the right “to marry, establish a home and bring up children, ... and generally to enjoy those privileges long recognized at commpn law as essential to the orderly pursuit of happiness by free men.” Meyer, 262 U.S. at 399, 43 S.Ct. 625. Marriage is “one of the basic civil rights of man.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The right to marry is related to other rights, including the right to privacy. In Griswold v. Connecticut, for example, health professionals were prosecuted when they helped a married couple secure contraceptives in violation of a Connecticut statute. 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Supreme Court ruled that the statute violated the right to privacy implicit in marital relations. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Id. at 486, 85 S.Ct. 1678. As others have pointed out, the Court has also “described marriage as an associational right” which is “of basic importance in our society.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1197 (D.Utah 2013) (citation and quotation marks omitted). As society’s notion of liberty has changed, the scope of the right to marry has changed with it. Griswold stands for the proposition that the right, to marry also protects the couple’s choice on when to have children, if ever. In Zablocki v. Redhail, the Court held that the right to marry extends to fathers with outstanding child support payments who cannot support their children. 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). In Turner v. Safley, the Court held that the right to marry extends to incarcerated persons who have no ehildrén and no opportunity to conceive children. 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). These cases illustrate that the right to marry cannot be limited to those who want to procreate, those who are able to procreate, or those society perceives to be the model family unit. See Kitchen, 755 F.3d at 1210-11; Lotto, 771 F.3d at 478 n. 1, 2014 WL 4977682 at *12 n. 1 (Reinhardt, J., concurring). Perhaps the most significant case demonstrating the evolving conception of the right to marry is Loving v. Virginia. There, the Supreme Court ruled that Virginia’s law banning interracial marriage violated the Due Process Clause. 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The law deprived couples of “liberty without due process of law” and denied them the “freedom to marry,” which “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Id. at 12, 87 S.Ct. 1817. Loving did not redefine marriage or create a new “right to interracial marriage.” Rather, it struck down a law limiting- an existing fundamental right on account of race, a governmental classification which is subject to judicial review. Id.; see also Lawrence, 539 U.S. at 577-78, 123 S.Ct. 2472 (“neither history nor tradition could save a law prohibiting miscegenation from constitutional attack”). Loving means that fundamental rights like the right to marry are presumptively shared by all persons, and laws restricting these rights are subject to strict scrutiny when the government attempts to limit other groups’ access to them. Accord Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (applying strict scrutiny to laws “infring[ing]” on “fundamental liberty interests”). Loving also stands for the proposition that marital rights are articulated broadly. As the Tenth Circuit put it, Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat dad’s right to marry.’ Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case. Kitchen, 755 F.3d at 1210-11 (quoting Lotto, 771 F.3d at 477-79, 2014 WL 4977682, at *12-13). These cases “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” Bostic, 760 F.3d at 376. Given these precedents, the court concludes that the right at issue today is the right to marry, not the right to marry a person of the same gender. . While the latter articulation is more precise, certainly, such a narrow reading is inconsistent with the Supreme Court’s decisions in Meyer, Zablocki, Turner, and Loving. See also Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (“the ‘liberty specially protected by the Due Process Clause includes the right[ ] to marry”). The court’s conclusion is buttressed by two decisions that recognized the rights of gay and lesbian citizens. In Lawrence, the Court held that the “right to liberty under the Due Process Clause gives [homosexuals] the full right to engage in their conduct without intervention of the government.” 539 U.S. at 578, 123 S.Ct. 2472. In so doing, the Court recognized that, the Due Process Clause “afford[s] constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education---Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574, 123 S.Ct. 2472. The Court’s reasoning indicates that gay and lesbian persons have the same liberty interests as heterosexuals. In dissent, Justice Scalia declared that the Court’s reasoning opened the door for gay and lesbian persons to claim a constitutionally-protected right to marry. Id. at 600-05, 123 S.Ct. 2472 (Scalia, J., dissenting). That proved true. The second ease is Windsor, where the Court struck down part of DOMA because it “impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” 133 S.Ct. at 2693. The opinion described in great detail why the government was not justified in “demean[ing] the [same-sex] couple, whose moral and sexual .choices the Constitution protects,” or in “humiliat[ing] tens of thousands of children now being raised by same-sex couples.” Id. at 2694. Although Windsor does not address State statutes and constitutional amendments banning same-sex marriage, its language leaves no room to allow homosexual citizens, and the children they love and rear, to be treated as second-class citizens. Windsor compels us to recognize gay and lesbian couples’ substantive due process right to marry. This conclusion is reinforced by Justice Scalia’s dissent in Windsor, where he again observed that the majority’s reasoning would open the door to strike down state bans on same-sex marriage. Id. at 2709-11 (Scalia, J., dissenting). When read in conjunction with Loving and Lawrence, the undersigned must agree. Gay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry. This conclusion does not conflict with Glucks-berg. The right to marry is rooted in history and tradition, but history shows that tradition does not dictate who gets to exercise certain rights. (Any doubt could be resolved by asking Mildred and Richard Loving, Estelle Griswold, William Baird, John Lawrence and Tyron Garner, and Edith Windsor and Thea Spyer.) The State’s narrow interpretation of this right diminishes the importance it has continuously been given by the Supreme Court, contrary to applicable case law. It also serves to undermine the dignity of gay and lesbian citizens by suggesting that they are unworthy of sharing rights fundamental to every free person. See Zablocki, 434 U.S. at 384, 98 S.Ct. 673 (“the right to marry is of fundamental importance for all individuals”); Loving, 388 U.S. at 12, 87 S.Ct. 1817 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”). Mississippi’s marriage laws violate the plaintiffs’ Due Process rights, unless defendants can show that the laws “are narrowly tailored to serve a compelling state interest.” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (citation omitted). The court need not discuss whether these laws withstand the strict scrutiny analysis required when a fundamental right is harmed, however, because the laws fail to survive rational-basis review, a less searching standard, under the Equal Protection Clause. The court will now turn to that Clause. 2. Equal Protection The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (citation omitted). The “guarantee is both simple and wide-equal and uniform governmental classifications.” Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1056 (5th Cir.1984). The Fourteenth Amendment ensures that citizens’ rights to liberty and equality are the same whether you live in the Rocky Mountains or the Mississippi Delta. “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). The Clause has been interpreted broadly for the last several decades. See Town of Ball, 746 F.2d at 1056-57. “When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citations omitted). “But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification.... Thus we have treated as presumptively invidious those classifications that disadvantage a suspect class, or that impinge upon the exercise of a fundamental right.” Plyler, 457 U.S. at 216-17, 102 S.Ct. 2382 (quotation marks omitted). As explained earlier, case law establishes a fundamental right to marry the person of one’s choice. Mississippi’s decision to exclude same-sex couples from exercising that choice violates that fundamental right. The Court will nevertheless consider whether Mississippi’s same-sex marriage ban operates to disadvantage a suspect or quasi-suspect class, which if -true “may call for a correspondingly more searching judicial inquiry.” United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Governmental discrimination “against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.” Baskin, 766 F.3d at 654 (citations omitted). Under the customary framework, laws with racial classifications are subject to strict scrutiny, laws with sex-based classifications are subject to heightened or intermediate scrutiny, and laws making other classifications are subject to rational basis review. E.g., Fisher v. Univ. of Tex. at Austin, — U.S. -, 133 S.Ct. 2411, 2417, 186 L.Ed.2d 474 (2013) (“Any racial classification must meet strict scrutiny.”); Miller v. Albright, 523 U.S. 420, 434 n. 11, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (“heightened scrutiny ... normally governs gender discrimination claims”); Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (applying rational basis review to state taxation scheme). The circuit courts of appeal are divided on which level of review to apply to sexual orientation classifications. In the Second Circuit, “homosexuals compose a [quasi-suspect] class that is subject to heightened scrutiny.” Windsor, 699 F.3d at 185. In this circuit, sexual orientation classifications are subject to rational basis review. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004). It is here that we encounter two analytical difficulties. First, as the plaintiffs observe, Mississippi’s same-sex marriage ban facially classifies on the basis of sex, not sexual orientation. -See Docket No. 1, at 14. This creates some confusion about which level of review to apply. Second, despite having to evaluate sexual orientation classifications under rational basis review, history suggests that gay and lesbian Mississippians are a discrete minority group that lacks political power and has long been subjected to discrimination, warranting heightened scrutiny. Each of these issues will be taken up below. a. Sex-Based Classification Nothing in the text of Mississippi’s laws banning same-sex marriage speaks to sexual orientation. A circuit clerk need not inquire into sexual orientation to issue or withhold a marriage license. Mississippi’s same-sex marriage ban is plainly a sex-based classification. When the legislature wrote the laws in 1997 and 2004, it could have framed the issue in terms of sexual orientation. It would not have been difficult to find the right words; just a few years earlier, Colorado had passed a constitutional amendment repealing all governmental protection for persons of “homosexual, lesbian or bisexual orientation.” Romer, 517 U.S. at 624, 116 S.Ct. 1620 (quoting Colo. Const, art. II, § 30b). The absence of sexual orientation-related language in Mississippi’s ban confirms that it is a sex-based classification. And yet, common sense tells us that the application of Mississippi’s same-sex marriage ban discriminates on the basis of sexual orientation. The title of the bill which amended the Mississippi Code to outlaw same-sex marriage said it was “An Act ... 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.” S.B. 2053, 112th Leg., Reg. Sess. (Miss.1997). Contemporaneous reporting confirms that Mississippi’s constitutional amendment banning same-sex marriage was passed in response to an expansion of same-sex rights in Massachusetts, not women’s rights. See Gordon, supra (quoting Rep. Barnétt); see also Forest Thigpen, Approving Amendment Doesn’t Restrict Rights of Same-Sex Partners, The Clarion-Ledger, Oct. 24, 2004 (“in Massachusetts, ... a bare majority ... of that state’s supreme judicial court declared same-sex marriage to be a fundamental right”). Legal analysis is supposed to focus on the plain language of the authoritative text. To take a statute as an example, if its plain language “is unambiguous and does not lead to an absurd result, our inquiry begins and ends with the plain meaning of that language.” Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 421 (5th Cir.2013). Judges “should not be required to divine arcane nuances or to discover hidden meanings” buried within a text. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). Context is certainly relevant to that inquiry; courts are to focus on plain language “in context with its design, object and policy.” Sealed Appellee 1, 767 F.3d at 421; see Scalia & Garner at 56 (“words are given meaning by their context, and context includes the purpose of the text”). But there is reason to believe that the context is to be gleaned from within the authoritative text itself — adjacent paragraphs and the like — “not from extrinsic sources such as legislative history or an assumption about the legal drafter’s desires.” Scalia & Garner at 56. On one hand, since the plain language of Mississippi’s same-sex marriage ban is a sex classification, and there is not enough contextual information within the text to identify sexual orientation as the issue, then this court should apply intermediate scrutiny. That means the ban survives only if the State can meet a “demanding” burden to show that “the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia, 518 U.S. at 533, 116 S.Ct. 2264 (quotation marks, citations, and brackets omitted). On the other hand, if the court is permitted to use common sense and examine the true purpose, history, and effect of Mississippi’s same-sex marriage ban, it is obvious that the ban discriminates on the basis of sexual orientation. In such case rational basis review must be applied, with the customary inferences in the State’s favor. Justice Kennedy called this “a difficult question that I’ve been trying to wrestle with.” Transcript of Oral Argument, Hollingsworth v. Perry, No. 12-144, 2013 WL 6908183 *13 (U.S. Mar. 26, 2013) [hereinafter Hollingsworth Transcript], Like other district courts presented with this dilemma, the undersigned need not resolve the conflict at this time. See Wolf v. Walker, 986 F.Supp.2d 982, 1009 (W.D.Wis.2014). It is noted for further review. b. Suspect or Quasi-Suspect Class This brings us to the second problem. Race, sex, and a handful of other classifications are subject to either strict or intermediate scrutiny. In this circuit, sexual orientation is not. That conclusion is binding on this Court. The question is whether it remains a fair conclusion given what we now know about gay and lesbian citizens. Courts consider a number of factors when deciding whether a group is a suspect or quasi-suspect class. One of the most important is whether the group has “suffered discrimination in our society.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 218, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); see Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (“our Nation has had a long and unfortunate history of sex discrimination”). Another is whether the characteristic at issue has any bearing on one’s “ability to perform or ’contribute to society.” Cleburne, 473 U.S. at 441, 105 S.Ct. 3249 (citation omitted). A third is whether the classification “threatenfs] to stigmatize individuals by reason of their membership,” Johnson v. California, 543 .U.S. 499, 507, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), or perpetuates stereotypes of “legal, social, and economic inferiority,” Virginia, 518 U.S. at 534, 116 S.Ct. 2264. Additional considerations include whether the group “exhibits] obvious, immutable, or distinguishing characteristics,” or is “a minority or politically powerless.” Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986) (citation omitted). These factors are not exhaustive. See Windsor, 699 F.3d at 181. The State did not address these factors in its response brief. At oral argument, in fact, it conceded that some of them were “inarguable,” without stating which factors were not satisfied. The Court has conducted an independent review of the factors without the benefit of the government’s input. i. History of Discrimination A “strong objection to homosexual conduct ... has prevailed in Western culture for the past seven centuries.” Baker v. Wade, 769 F.2d 289, 292 (5th Cir.1985) (en banc); accord Lawrence, 539 U.S. at 571, 123 S.Ct. 2472. This objection took many forms. It was common for state laws to call for “sterilization or castration of moral degenerates and sexual perverts, usually for homosexual behavior.” Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 Sup. Ct. Rev. 183, 253 (2013). “In an effort to ‘treat’ homosexuals, hospitals performed prefrontal lobotomies, injected massive doses of male hormones, and administered electric shock and other aversion therapy.” Id. at 253-54 (citation omitted). In 1952, Congress labeled homosexuals psychopathic personalities and passed a law “prohibitfing] gay men and women from entering the country.” De Leon v. Perry, 975 F.Supp.2d 632, 651 (W.D.Tex.2014) (citations omitted). “In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual employees, among others, from all federal employment, and this policy remained in place until 1975.” Id. (citations omitted). Senator Joseph McCarthy’s crusade against Communists involved keeping an eye out for “flagrant homosexuals,” which contributed to “more State Department employees ... fired for homosexuality than for alleged Communist sympathies in 1951 and 1952, the height of McCarthy-era red-hunting.” Carpenter, 2013 Sup. Ct. Rev. at 254. Gay and lesbian citizens could not openly serve in the military until September 2011. Matthew L. Wald, Woman Becomes First Openly Gay General, N.Y. Times, Aug. 12, 2012. “Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal.” Windsor, 699 F.3d at 182. (In that case, the group of United States Congressmen which opposed Edith Windsor’s claim conceded that “homosexuals have endured discrimination in this country since at least the 1920s.” Id.) “Between 1946 and 1961, as many as one million gays and lesbians were arrested and punished for crimes related to their sexuality.” Cary Franklin, Marrying Liberty and Equality: The New Jurisprudence of Gay Rights, 100 Va. L. Rev. 817, 837 (2014) (citing William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 60 (1999)). Earlier federal courts have not hesitated to say that “a homosexual act is immoral, indecent, lewd, and obscene.” Schlegel v. United States, 189 Ct.Cl. 30, 416 F.2d 1372, 1378 (1969). Much has changed. Today, even courts upholding same-sex marriage bans have had to acknowledge “the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials.” DeBoer, 772 F.3d at 413. “Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on bars, clubs, and private homes; portrayed by the press as perverts and child molesters; and victimized in horrific hate crimes.” Whitewood v. Wolf, 992 F.Supp.2d 410, 427 (M.D.Pa.2014). When its same-sex marriage ban was challenged, the State of Pennsylvania conceded that there was a history of discrimination against gay and lesbians in America, but disputed the record of anti-gay discrimination in Pennsylvania, Id. at 427-28. The State of Mississippi has wisely made no such claim. To avoid all doubt, though, the court will discuss Mississippi’s unique experience. Historian John Howard, a native of Rankin County, contends that Mississippi was quietly accommodating of gay and lesbian persons during the 1940s and 1950s. John Howard, Men Like That xvii (1999). When John Murrett, a gay man, was murdered in a Jackson hotel