After nearly two weeks of hinting, Attorney General Jim Hood finally confirmed Wednesday that he would break with Gov. Phil Bryant and not appeal U.S. District Judge Carlton Reeves’ decision to strike down House Bill 1523.
Hood also backed off of his earlier promise to appeal a separate decision in which Reeves had indicated he would invalidate the part of House Bill 1523 allowing clerks to recuse themselves from issuing marriage licenses to same-sex couples. He now says he “may appeal” the federal court’s decision in this case. Both cases would go before the Fifth Circuit Court of Appeals in New Orleans.
In a nine-paragraph statement Hood said he had grown tired of fighting for what he called “an empty bill” that had brought months of negative attention to the state.
“Simply stated, all HB 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess,” Hood said in his statement.
After the attorney general’s announcement, Gov. Bryant said in a statement that he was frustrated with Hood’s unwillingness to fight for a law he said was solely intended to protect the religious rights of Mississippians.
“I’m obviously disappointed the attorney general has abandoned his duty to defend the constitutionality of a duly enacted statute. This appeal is about the state’s legitimate interest in protecting religious liberty – not political posturing about tax reform or the state budget,” Bryant said in his statement.
“Mississippi Democrats’ failed policies have rendered them unable to win elections, so they have joined secular progressives in their attempts to legislate through the courts.”
Bryant filed his own appeal of Judge Reeves’ decision last week. Two private attorneys based in St. Louis are representing the governor and a second defendant, Jim Davis, executive director of the Department of Human Services, who announced Tuesday that he would join the governor’s appeal. According to the governor, the attorneys are working pro bono.
The attorney general had publicly expressed his doubts about the merits of an appeal almost from the moment Judge Reeves handed down his decision on June 30. In a July 1 statement, Hood called the decision “straightforward and clear” and said House Bill 1523 was unnecessary and deceptive.
“I can’t pick my clients, but I can speak for myself as a named defendant in this lawsuit. The fact is that the churchgoing public was duped into believing that HB1523 protected religious freedoms,” Hood said.
“I hate to see politicians continue to prey on people who pray, go to church, follow the law and help their fellow man.”
Then at a luncheon for the Stennis Institute last week, Hood said that while he believed his office had presented a strong defense of the law itself during court hearings June 23-24 prior to Judge Reeves’ ruling, ultimately the defense couldn’t overcome the perception that the intent of the law had been to do harm.
“When you add in the other parts like the statements of our elected officials and the intent, that puts a whole other line on the situation. And the evidence that came in, well, I think Judge Reeves gave a clear opinion on HB 1523,” Hood said.
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 issued the decision in which he indicated that he would invalidate the part of the bill that allowed clerks to recuse themselves from issuing marriage licenses to same-sex couples.
But that ruling didn’t touch any aspects of the law beyond the part pertaining to clerks. Private business owners, such as caterers, and other state officials, such as public school counselors, were still allowed to refuse marriage-related services to same-sex couples.
The decision that Hood just announced he won’t appeal, however, 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.
This is not the first time that Gov. Bryant and Hood have disagreed over whether they should pursue a lawsuit.
In May, Hood declined to join 12 states asking for a temporary injunction on the Obama administration’s federal guidelines directing schools to let transgender students use restrooms and other facilities that match their gender identities. As a result, Bryant signed on as a single party. Then in 2012, Hood refused to join with Bryant on a multi-state lawsuit protesting the Affordable Care Act. And in 2014, Hood also declined to join Bryant in signing on to a Texas federal lawsuit challenging President Obama’s executive orders on immigration.
The results of these lawsuits have been mixed. A judge has yet to rule on the temporary injunction on guidelines for transgender students. But in 2012 a federal judge dismissed Gov. Bryant’s claim on the Affordable Care Act, saying he did not have standing. Last month, the Supreme Court, in a tie, upheld the Fifth Circuit’s decision blocking President Obama’s immigration plan.