Fifth Circuit denies Governor’s request for a stay on HB 1523 decision

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The 5th Circuit Court of Appeals has denied Gov. Phil Bryant’s request for a stay in a lower court’s decision to strike down House Bill 1523. As a result, this law has no chance of going into effect until after the 5th Circuit hears their appeal.

Gov. Phil Bryant laughs as he leans against the speaker's podium at Founders Square at the Neshoba County Fair.

Rogelio V. Solis, AP

Gov. Phil Bryant laughs as he leans against the speaker’s podium at Founders Square at the Neshoba County Fair.

The Court also denied Gov. Bryant’s request to expedite the appeal. But they granted the governor’s third request and ordered the consolidation of the two lawsuits addressed in their appeal, Campaign for Southern Equality v. Bryant IV and Barber v. Bryant.

John Davis, the executive director of the Department of Human Services, joined Gov. Bryant in his appeal. His requests for a stay and an expedited appeal were also denied.

Although the governor said he was disappointed with the court’s decision, he said it has little bearing on how the judges will ultimately rule.

“We are reviewing the Court’s order, which does not address the merits of the case. House Bill 1523 is a commonsense provision that protects the religious liberty of all Mississippians, while respecting the rights of all. We look forward to defending HB 1523 vigorously on appeal,” Gov. Bryant said in a statement.

Opponents of House Bill 1523, however, said that the 5th Circuit’s decision to deny the stay is one more step towards wiping out the law.

“The 5th Circuit’s order that HB 1523 will not go into effect means that thousands of LGBT folks in Mississippi, including our clients and their families,? are breathing a huge sigh of relief right now,” said Roberta Kaplan, lead attorney on Campaign for Southern Equality v. Bryant IV.  “Too many LGBT Mississippians have lived for far too long with a constant threat hanging over their heads… Today’s ruling means that the end is in sight and that those days of uncertainty will soon be over.”

Rob McDuff, co-counsel on Barber v. Bryant with the Mississippi Center for Justice, concurred.

“This is a great victory for the thousands of Mississippians who have opposed this bill in the name of tolerance and fairness and dignity for all,” McDuff said. “Although the Governor apparently will continue with his appeal, this is an important milestone in the battle against this completely misguided piece of legislation.”

This decision arrives less than two weeks after U.S. District Court Judge Carlton Reeves denied Gov. Bryant’s original request to stay his decision striking down House Bill 1523. The governor had argued that the law should go into effect until the 5th Circuit had a chance to hear the appeal.

“The final element asks whether the public interest is served by a stay. It is not. In this case the public interest is better served by maintaining the status quo – a Mississippi without HB 1523,” Judge Reeves said in his decision last week. “To the extent the preliminary injunction will help alleviate the damage wrought on this State by an HB 1523-caused economic boycott, moreover, that too supports denying a stay of the injunction.”

Unlike Judge Reeves, who is known for issuing long decisions, thoroughly addressing arguments from each side, the 5th Circuit limited their denial to procedural issues, acknowledging that “a stay is an intrusion into the ordinary processes of administration and judicial review, and accordingly is not a matter of right.”

“Mindful that we are considering only whether to grant a stay of a preliminary injunction pending appeal, and further considering that our decision maintains the status quo in Mississippi as it existed before the Legislature’s passage and attempted enactment of HB 1523, the State’s motion for stay pending appeal is denied,” the 5th Circuit wrote in its decision in Barber v. Bryant. 

With the 5th Circuit’s decision also came the announcement of the justices assigned to the appeal. They are Judge James L. Dennis, appointed by President Bill Clinton, Judge Catharina Haynes, appointed by President George W. Bush, and Judge James E. Graves, Jr., appointed by President Obama.

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. Opponents say doing so unfairly targets gay, lesbian and transgender individuals for discrimination.

In June, Judge Reeves heard arguments in two lawsuits seeking to strike down the law. Campaign for Southern Equality v. Bryant and Barber v. Bryant argued 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 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, Judge 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, Gov. Bryant filed a notice of appeal and a request for a stay on Judge Reeves’s ruling. He was later joined in his appeal by a second defendant, John Davis of the Department of Human Services. In addition to the Alliance Defending Freedom, they are being represented pro bono by attorneys Jonathan Mitchell and John Sauer.