The Fifth Circuit Court of Appeals has reversed a lower federal court’s decision to strike down House Bill 1523, allowing the law to take effect.
Writing on behalf of himself and Judges Catharina Haynes and Jennifer Elrod, Judge Jerry E. Smith dismissed last summer’s U.S. District Court verdict, ruling that the original plaintiffs challenging House Bill 1523 lacked standing.
“Under this current record, the plaintiffs have not shown an injury-in-fact caused by HB 1523 that would empower the district court or this court to rule on its constitutionality. We do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact … but the federal courts must withhold judgment unless and until that plaintiff comes forward,” Smith wrote in his opinion for the Fifth Circuit.
While the Fifth Circuit’s decision invalidates the preliminary injunction issued by U.S. District Court Judge Carleton Reeves last summer, the controversial legislation is not yet the law of the land. After an order, the plaintiffs have a two week window to ask the court to reconsider. If they do nothing, the court will issue a mandate allowing the law to take effect.
Roberta Kaplan, lead attorney on Campaign for Southern Equality’s challenge to the law, said she plans to petition the court for a review en banc. If the court accepts, the entire Fifth Circuit would review Thursday’s decision, which was issued by a three-judge panel. Such a move would likely continue the stay preventing House Bill 1523 from taking effect.
“This decision is not only deeply upsetting for the rights of LGBT individuals living in Mississippi, but also for the protection of religious liberty in our country,” she said. “Our clients have already suffered enough.”
Attorney General Jim Hood declined to appeal on the state’s behalf when the injunction was handed down, which prompted Governor Phil Bryant to hire his own attorneys.
“The AG has the duty to not pursue fruitless and expensive litigation, especially over a law that does nothing,” Hood said in a statement Thursday. “HB 1523 was passed for political reasons to trick people of faith into thinking that it provided them some protection, when it does not.”
“Even if plaintiffs do not appeal this decision to the full Fifth Circuit or the United States Supreme Court, this decision means that new and additional lawsuits will likely be filed against the state, state officials, and county officials resulting in protracted litigation at taxpayer expense,” Hood said.
Hood added that would review any challenges to the law when and if schools are sued over restroom or locker policies based on students’ sex at birth, he would “vigorously defend” those schools.
The legislation legally protects anyone who refuses marriage-related services because of these beliefs.
But the Fifth Circuit’s ruling on Thursday bypassed any arguments on the religious merits of the case and only ruled on standing, which asks whether the plaintiffs technically had the right to bring suit, not whether the law itself is constitutional.
Despite this, several Republican state leaders declared the Fifth Circuit’s decision a victory for religious freedom in Mississippi.
“House Bill 1523 simply protected Mississippians from government interference when practicing their deeply held religious beliefs, and I appreciate the Fifth Circuit clearing the path for this law to take effect,” said Lt. Gov. Tate Reeves.
“The whole objective was to protect religious freedoms. We are pleased to see that is now in effect,” said House Speaker Philip Gunn.
This is a significant departure from last summer’s U.S. District Court ruling, in which Judge Carlton Reeves struck down House Bill 1523 in a blistering opinion that declared the law “does not honor (this country’s) tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.”
Thursday’s arguments from the Fifth Circuit were significantly more measured, arguing that the original plaintiffs could not claim they had been injured by a law that had never taken effect.
“Plaintiff Renick Taylor comes the closest by stating his intention to marry, but that alone is insufficient. He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi,” Smith wrote in the Fifth Circuit’s decision.
“Without more, we are left to speculate as to the injuries he and the other plaintiffs might suffer. That we cannot do.”
For the original plaintiffs, the judges’ decision to avoid any discussion of the merits of the “religious freedom” law is telling. Rob McDuff, the lead attorney on one of the two cases to challenge the law, said Thursday’s decision does not make House Bill 1523 constitutional.
“Even though this is an adverse decision I am pleased that we were able to stop HB 1523 from going into effect for the past year, and hopefully our efforts to see further review will prevent it from going into effect in the future. But whatever happens, it is clear that this law is unfair and intolerant and unconstitutional and the Fifth Circuit’s decision based on the doctrine of standing does not change that,” McDuff said.
The Fifth Circuit’s decision Thursday is based on two legal challenges to House Bill 1523. Barber v. Bryant and Campaign for Southern Equality v. Bryant III argued the law violated the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. These prohibit government from favoring one religion over another and one group of citizens over another, respectively.
House Bill 1523 has been a nationally polarizing issue from the moment Bryant signed it into law in April of 2016. Although the bill passed the Mississippi House and Senate with relatively little public scrutiny in late March, by the time it crossed the governor’s desk, #HB1523 had begun trending on Twitter as national media portrayed the bill as being “steeped in bigotry towards LGBT individuals.”
Over the next few weeks, more opponents of House Bill 1523 began to speak out. The Human Rights Campaign, which advocates for gay, lesbian, bisexual and transgender rights, compiled a list of national and state companies critical of the law, while some Mississippians took their own forms of action. The Mississippi Picnic, a 37-year-old tradition held in New York’s Central Park, was cancelled over fear of protests and anger at the law’s passage, according to organizers.
Even within state government, officials were split. After a lower court struck down the law, Hood said state leaders had “duped the churchgoing public” into believing the lawsuit protected religious freedom.
But Bryant, whose support for House Bill 1523 earned him an award from the conservative Family Research Council, soldiered on with his appeal, represented pro bono by Jonathan Mitchell, a former Texas solicitor general, and the Alliance Defending Freedom, the conservative Christian organization that worked to get the law passed.
Thursday’s decision could have ripples nationwide. Among those waiting to hear the 5th Circuit opinion are a Republican governor, Paul LePage of Maine, and eight Republican attorneys general, who filed an amicus brief in support of the law, indicating similar laws could benefits residents of their own states.
“There certainly is a national interest in this and whether people should be forced to violate their convictions when they do their work. And I think that’s across the board,” said Kevin Theriot, an attorney for the Alliance Defending Freedom, who represented Bryant before the Fifth Circuit. “Should you be forced to use your artistic talents to do something you deeply disagree with? It doesn’t just protect religious people, it protects non-religious as well.”
When bill initially passed, it drew criticism from businesses, agencies and schools in South Mississippi. Attorney General Jim Hood said the bill tarnishes Mississippi’s image. Singer Belinda Carlisle and Ocean Springs Mayor Connie Moran took the stage together to denounce the bill, calling it “un-Christian.” Robin Roberts said the bill “hurts my soul.” The Biloxi City Council also called for the repeal of the bill.
Sun Herald digital producer Justin Mitchell blogged about why it was important for the Coast’s LGBTQ community to stay in Mississippi and fight the bill, and comedian Tig Notaro said she felt scared driving through Jackson after the bill was passed in an interview with Mitchell for the Out Here in America podcast.
Read the full opinion here.
Sun Herald digital producer Justin Mitchell contributed to this report.