The Campaign for Southern Equality filed the fourth challenge to the state’s “religious freedom” law in five weeks on Friday.
It’s also the second of these lawsuits filed by the Campaign of Southern Equality and their lead attorney, Roberta Kaplan. It’s the third lawsuit to ask for a temporary injunction to keep the law from going into effect on July 1 and the second to base its central argument on the Establishment Clause of the First Amendment. Two of the first three cases have hearings set for next week.
But the one constant across all of these lawsuits, aside from challenging the law’s constitutionality, is that they’re being defended by the Attorney General’s office. And the agency is feeling the strain.
“I and over half of our lawyers in the Civil Litigation Division are working overtime and weekends attempting to prepare for the hearings on Monday and Tuesday of next week. I had to pull lawyers off of other urgent cases,” said Attorney General Jim Hood in a statement.
“Due to legislative budget cuts, we did not have the resources to hire a learned expert to help us prepare for the highly specialized area of the law … seldom litigated in Mississippi — the Establishment Clause. Nevertheless, the state will be ready to put forth its best defenses.”
House Bill 1523, which Gov. Phil Bryant signed 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 protects from litigation anyone who refuses services to gays, lesbians and transgender individuals because of these beliefs.
This newest lawsuit argues that endorsing only some sincerely held religious beliefs while ignoring others violates the Establishment Clause of the First Amendment which prohibits government from favoring one religion over another.
The governor did not respond to a request for comment. He is a defendant in this lawsuit and two others challenging House Bill 1523, along with Hood and Judy Moulder, the stage registrar.
Despite the overlaps in each lawsuit, Josh Kaye, an attorney on both Campaign for Southern Equality lawsuits, argues that each one is essential to striking down the state’s “religious freedom” law.
“CSE has been fighting these fights for a long time; we have a perspective that we think is important to be presented to the court,” Kaye said. “There are so many different reasons why this law is unconstitutional, and there are so many independent reasons why this law could be struck down both now and in the future that we want to make sure a variety of those arguments have been made to the court.”
The Campaign for Southern Equality has a long history with LGBT issues in Mississippi. In 2014 they challenged Mississippi’s ban on gay marriage and in 2015 challenged their ban on gay adoptions. They won both cases. Susan Hrostowski, the second plaintiff in this newest case, was also a plaintiff in the adoption lawsuit.
She’s also the most distinctive feature of this case. Although all four cases take issue with the law’s use of the phrase “sincerely held religious beliefs,” this is the first lawsuit to turn this phrase against itself. Hrostowski wrote a declaration in which she stated her own “sincerely held religious beliefs.”
“I have many sincerely held religious beliefs, including the belief that the sacred
institution of marriage is open to all loving couples and in the vital importance of joining
together in Christian prayer,” Hrostowski said in her declaration.
Kaye said that the pileup of lawsuits is largely a byproduct of timing. Since three of the complaints ask for an injunction to keep the law from going into effect, they will need to be heard before July 1.
But he said if anything should be blamed for the large number of lawsuits — it’s the “religious freedom” law itself.
“When the legislature passes and the governor signs an egregiously unconstitutional law they have to expect it’s going to get challenged under the constitution; that’s what happens,” Kaye said.