The fight over last year’s House Bill 1523 could kick into gear again as early as April.
The Fifth Circuit Court of Appeals in New Orleans has scheduled oral arguments on the controversial “religious freedom” law for the week of April 3 in Lubbock, Texas.
Gov. Phil Bryant is appealing a June federal court ruling that declared HB 1523 unconstitutional minutes before it would have become Mississippi law. The law 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 legislation, which legally protects anyone who refuses marriage-related services because of these beliefs, hit a national nerve when Bryant signed it into law last April. Opponents have argued it unfairly targets gay, lesbian and transgender individuals for discrimination.
And in the wake of Donald Trump’s presidency, the appeal is likely to draw as much attention as last year’s federal court ruling, according to Rob McDuff, an attorney for sixteen of the plaintiffs who successfully sued to overturn the law in June.
“There are people in Washington who are pushing for an executive order or nationwide legislation that would mimic Mississippi’s statute. That gives added resonance to the appeals court argument coming up in April and the decision of the Fifth Circuit that will follow sometime in the ensuing months,” McDuff said. “Fortunately, the order blocking the Mississippi law remains in effect until then and hopefully the Fifth Circuit will uphold it.”
In a sign of how bright the national spotlight still is, during the briefing period more than a dozen amicus curiae briefs, totaling hundreds of pages, were filed by opponents and supporters of the law. Supporters of the law included well-known conservative groups like the Foundation for Moral Law and eight states including Texas, Arkansas, and Louisiana. Opponents ranged from individuals to well-known national corporations including Pfizer and Mississippi-based Sanderson Farms.
If the April date sticks, it will be the first time oral arguments have been made about House Bill 1523 since Gov. Bryant, with the backing of the attorney general’s office, fought to uphold the law in U.S. District Court last June.
That hearing did not go well for the governor. Two lawsuits, Campaign for Southern Equality v. Bryant and Barber v. Bryant successfully argued that the law violated the First and Fourteenth Amendments of the Constitution.
The governor’s previous interactions with the Fifth Circuit have not fared better.
Shortly after filing his appeal in August, Bryant requested a stay of the federal ruling, a move that would have let the law go into effect.
The Fifth Circuit denied this, saying doing so would disrupt the status quo in Mississippi, where HB 1523 has never been law and that “a stay is an intrusion into the ordinary processes of administration and judicial review, and accordingly is not a matter of right.”
The governor’s office did not respond to a request for comment, but Bryant has held steadfast in his support for the law since. Last month attorneys for the governor filed a brief in which they argued against the idea that homosexuals are a protected class, and questioned whether homosexuality was an immutable trait, rather than a choice.
“Homosexuals cannot qualify as a “suspect class” because homosexuals are not politically powerless, and sexual orientation is not an “immutable” trait akin to race. Homosexuals have enormous political clout, especially in the Democratic Party, and their political power has been growing and continues to grow,” the governor’s attorneys wrote in their brief.
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