State confronts two challenges to “religious freedom” law

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After two weeks of silence, the state pushed back against the two challenges to its controversial “religious freedom” law, filing responses to each on Tuesday.

In a 21-page legal brief bristling with indignation, the attorney general and governor asked Judge Carlton Reeves to dismiss the motion filed by the Campaign for Southern Equality on May 10. They argue that the claim has no grounds because it rests both on a case that already has closed and “hypothetical future events.”

Attorney General Jim Hood

Mississippi Today

Attorney General Jim Hood

Attorney General Jim Hood also used the issue of standing in response to the May 9 lawsuit filed by the American Civil Liberty Union. Arguing that this claim was more an “academic exercise” than a valid suit, he said the ACLU had pieced together “a litany of speculative and hypothetical facts” when asking the court to issue a preliminary injunction stopping the law from taking effect July 1.

“This facial challenge is contingent upon a number of hypothetical events that may never transpire,” said the response from Hood.

Lawyers for both the ACLU and the Campaign for Southern Equality said they expected the state’s responses to their respective suits.

“We thought about all of this in advance and sort of anticipated that this would be one of their responses,” said Oliver Diaz, the lead attorney on the ACLU’s lawsuit.

Neither the governor nor the attorney general answered multiple requests for comment.

Gov. Phil Bryant signed House Bill 1523 last month. In it, the state singles out three 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 protects from litigation anyone who refuses services to gays, lesbians and transgender individuals because of these beliefs.

Josh Kaye, an attorney on the Campaign for Southern Equality’s suit, said he doubted the response from the governor and attorney general would sway the judge.

“We already had our day in court, and we already won,” Kaye said. “And that’s what it’s going to come down to.” 

That day in court came in 2014 when Judge Reeves, ruling in Campaign for Southern Equality v. Bryant, struck down the section of the Mississippi constitution that prohibited marriage between same-sex couples. The U.S. Supreme Court later affirmed this ruling in Obergefell v. Hodges, legalizing same-sex marriage nationwide. As a result, the Fifth Circuit Court of Appeals closed the case.

But the Campaign for Southern Equality’s current motion argues that House Bill 1523 violates this earlier decision from Reeves because allowing Mississippi officials to recuse themselves from issuing marriage licenses to gay and lesbian couples relegates these couples to second-class status.

“So we’re not bringing a new case,” Kaye said. “All we’re doing is asking the judge to amend the permanent injunction to restore the right that 1523 tried to take away.”

The ACLU’s lawsuit takes a different tack. They allege that the “religious freedom” law stigmatizes its co-plaintiffs, an engaged gay couple, a violation of the Equal Protection clause of the Fourteenth Amendment.

Attorneys for both the ACLU and Campaign for Southern Equality said they would file their replies to the state next week. Diaz said he was optimistic that the judge would order a hearing before the law goes into effect July 1.

In the meantime, these are not the only two cases involving the rights of sexual minorities that Mississippi is fighting. On Thursday, Gov. Bryant joined an 11-state lawsuit over the Obama administration’s mandate that students be allowed to choose the bathroom that aligns with their gender identity.

“It’s silly that they want to waste Mississippi resources on that,” Diaz said. “They have other things to address.”