A second defendant has joined Gov. Phil Bryant in his appeal of the federal district court’s ruling that struck down House Bill 1523.
John Davis, executive director of the Department of Human Services, is the second of the original four defendants to file a motion for appeal with the Fifth Circuit Court of Appeals. Neither Jim Hood, the state’s attorney general, or Judy Moulder, the registrar of vital records, has publicly announced whether they will appeal.
The Department of Human Services declined to comment. The governor’s office did not respond to a request for comment.
Although the state attorney general’s office represented all the defendants in the original hearings before U.S. District Judge Carlton Reeves in June, on Monday, two private St. Louis attorneys, Johnathan Mitchell and D. John Sauer, filed paperwork to represent the Gov. Bryant in the appeal. According to the governor’s office, Sauer and Mitchell are working for the governor pro bono. Davis’s appeal was filed by an attorney in the Department of Human Services.
Judge Reeves struck down House Bill 1523 just minutes before it was set to take effect at midnight on July 1. One week later, Gov. Bryant filed a notice of appeal with the Fifth Circuit Court of Appeals. He also asked Judge Reeves for a stay of his ruling, which would allow the law to take effect until the Fifth Circuit Court can rule.
But some legal scholars have said they think it’s unlikely the court will grant Gov. Bryant’s request for a stay.
“I really don’t see it. I really don’t. Usually when you think of a stay, it tends to keep the status quo,” said Richard Gershon, a professor of law at the University of Mississippi. “Well, the law wasn’t in effect, and what Judge Reeves clearly said is it shouldn’t go into effect. So the status quo says there is no 1523.”
House Bill 1523, which Gov. 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. But opponents say doing so unfairly targets gay, lesbian and transgender individuals for discrimination.
Since then, four lawsuits have been filed against House Bill 1523. The first, from the American Civil Liberties Union in May, asked for a preliminary injunction which would have kept the law from going into effect on July 1. But Reeves, who oversaw all the cases against House Bill 1523, denied this, saying the plaintiffs did not prove they were in immediate harm.
Then at the end of June, Judge Reeves indicated in another decision that he would invalidate the part of the bill that allowed clerks to recuse themselves from issuing marriage licenses to same-sex couples. The attorney general has said he will appeal this decision, although as of Tuesday, the appeal had not been filed.
The decision that Bryant and Davis are appealing invalidated every facet of House Bill 1523. The two lawsuits it addresses, Barber v. Bryant and Campaign for Southern Equality v. Bryant III, took aim at the whole law by arguing it 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.