Bryant: Court should overturn ban on House Bill 1523

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Gov. Phil Bryant has asked a federal appeals court to overturn the decision that kept House Bill 1523, also known as the “religious freedom” law, from taking effect July 1.

In a brief filed last week with the Fifth U.S. Circuit Court of Appeals, the governor laid out a detailed argument challenging the U.S. District Court ruling in late June that declared the law unconstitutional.

The brief argued two main points: that the original plaintiffs lacked standing to bring the case and that the law did not violate the establishment clause of the First Amendment or the Equal Protection clause of the Fourteenth Amendment. U.S. District Court Judge Carlton Reeves ruled hours before the law was to take effect that it violated both of those constitutional provisions.

Gov. Phil Bryant

Gov. Phil Bryant

Over more than 400 pages including appendices, attorneys representing the governor cited federal and state statutes to bolster their argument that the court has a long history of protecting religious objections.

“Accommodations for conscientious objectors are deeply rooted in this nation’s history and tradition — far more so than the right to same-sex marriage that the Supreme Court imposed in Obergefell v. Hodges,” attorneys for the governor said in their brief.

But attorneys for those who sued successfully to block the law said that despite its length, the new brief on behalf of the governor doesn’t present any new arguments.

“It’s not a surprise they repeated what they said before. By this stage of the case, particularly if you’ve had a stay motion, you’ve already made most of your arguments,” said Rob McDuff, an attorney in Barber v. Bryant, one of the two cases that successfully challenged the state law.

House Bill 1523, which Bryant signed into law in April, singles out three “sincerely held” religious beliefs as worthy of protection: that marriage is between one man and one woman; that people should not have sex outside such marriages; and that a person’s gender is set at birth. The law would protect from litigation anyone who refuses marriage-related services because of these beliefs. Opponents of the law say doing so unfairly targets gay, lesbian and transgender individuals for discrimination.

In June, Reeves heard arguments in two lawsuits seeking to strike down the law: Campaign for Southern Equality v. Bryant and Barber v. Bryant. Both lawsuits raised arguments that House Bill 1523 was unconstitutional because it violates the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. These clauses prohibit government from favoring one religion over another and one group of citizens over another, respectively.

Minutes before midnight on July 1, when House Bill 1523 was set to go into effect, Reeves issued his ruling striking down the law.

Attorney General Jim Hood issued a press release the next day saying he did not support the law. One week later, Bryant filed a notice of appeal and a request for a stay of Reeves’s ruling. Bryant was later joined in his appeal by a second defendant, John Davis of the Department of Human Services.

The state officials are being represented pro bono by St. Louis attorneys Jonathan Mitchell and John Sauer and the Alliance Defending Freedom, the Arizona-based conservative Christian organization that played a key role in drafting the original legislation.

During its defense of the law in court, the state had argued that forcing those who object to same-sex marriage to provide those services to gays or lesbians was like forcing a doctor to perform an abortion or forcing a conscientious objector to fight in a war, both of which are protected rights. But Reeves did not agree.

“Issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to ‘tinker with the machinery of death,’ their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases,” Reeves said in his decision.

In the brief filed last week, attorneys for the governor revisited this argument, stating that not all conscientious objections should be given equal weight.

“The district court’s reasoning is untenable. There are all sorts of valid and legitimate reasons for why a legislature might choose to protect some conscientious scruples over others … and it is inevitable (and entirely constitutional) that some conscientious scruples will receive greater statutory protection than others,” attorneys for the governor said in the brief.

The language on conscientious objections can be read as a sign that attorneys for the governor are attempting to take their case beyond protecting objections to same sex marriage and transgender individuals to a broader argument for the rights of religious and conscientious objectors.

Days before the June hearing, the state filed a 36-page response in U.S. District Court. It included 29 mentions of the terms “gay,” “lesbian,” “homosexual,” “same-sex,” and “gender identity.” It also included 11 mentions of “abortion” and no mentions of contraception. In contrast, the 419 pages of the governor’s brief filed last week included 659 mentions of either “abortion” or “contraception” but only 58 mentions of terms relating to same-sex marriage or gender identity.

The deadline for filing supporting briefs is later this week. Attorneys for those who challenged the law must file their response by the end of November.