Appellate judges in Texas could resurrect Mississippi’s ‘religious freedom’ law

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Rogelio V. Solis, AP

Gov. Phil Bryant walks past reporters on his way to a meeting at the Capitol in Jackson, April 1, 2016. Reporters asked him if he would sign HB 1523, but Bryant responded that he had not yet received the bill and would need to study it first. Bryant did sign the bill April 5.

Lawyers for Gov. Phil Bryant are in Texas today to defend Mississippi’s contentious “religious freedom” bill, struck down by a lower court last year, before a federal appeals court in Lubbock.

A three-judge panel for the U.S. Court of Appeals for the 5th Circuit will hear arguments on House Bill 1523. Supporters of the law say it keeps government from censoring the beliefs of its citizens. But opponents argue it targets gay, lesbian, bisexual and transgender Mississippians for discrimination.

The legislation hit a national nerve when Bryant signed it into law last April. Even within state government, officials were split. After a lower court struck down the law, Attorney General Jim Hood, a defendant in the original lawsuit, declined to pursue an appeal, saying state leaders had “duped the churchgoing public” into believing the lawsuit protected religious freedom. But Bryant, whose support for House Bill 1523 earned him an award from the conservative Family Research Council, soldiered on with his appeal, represented pro bono by outside counsel.

One year later, both advocates for and opponents of the legislation say the controversy is just as relevant.

Rob Hill, director of the Human Rights Campaign in Mississippi.

“I think that lawmakers, not just in Mississippi but around the country, are waiting to see the outcome of this appeal of 1523. It could have an effect on whether they do or they don’t take up ‘religious freedom’ bills like this one, depending on the outcome of the hearing,” said Rob Hill, director of the Human Rights Campaign in Mississippi.

A representative for the conservative Christian organization defending the governor’s case agreed that issues brought up by House Bill 1523 are as relevant today as they were last summer.

Alliance Defending Freedom

Greg Scott, vice president of media communications for Alliance Defending Freedom

“Preserving the right to live and work peacefully according to one’s beliefs without the threat of government reprisal is a fundamental freedom we’ve always enjoyed,” said Greg Scott of the Alliance Defending Freedom.

“Liberty is never out of season.”

House Bill 1523 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 would legally protect anyone who refuses marriage-related services because of these beliefs.

On June 30, minutes before the law would have taken effect at midnight, U.S. District Court Judge Carlton Reeves struck down House Bill 1523 in a blistering opinion that declared the law “does not honor (this country’s) tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.”

But a similar decision is far from a guarantee this time around.

The Fifth Circuit has long been considered one of the most conservative appellate circuits in the country, and in the past two decades fighting for gay, lesbian and transgender rights has been as much a liberal cause as religious freedom has been a conservative one.

Two of the justices on the panel, Catharina Haynes and Jennifer Elrod, are George W. Bush appointees. The third judge, Jerry E. Smith, was appointed by Ronald Reagan. All three have strong conservative track records, with rulings that favor restricting abortion access and immigration.

“I’ll say I’m nervous. My job is to advocate for the LGBTQ community,” Hill said. “And now I’m concerned that this piece of legislation, that’s one of the worst in the country, that the stay could potentially be lifted and it could go into effect.”

Despite speculation on the justices’ political leanings, attorneys challenging House Bill 1523’s constitutionality said they remain unconcerned.

Gabriel Austin, Mississippi Today

Roberta Kaplan, attorney for the Campaign for Southern Equality

“It’s not the job of the courts and justices sworn to uphold the Constitution to be impacted by the political climate,” said Roberta Kaplan, lead attorney on Campaign for Southern Equality v. Bryant, one of two cases before the Fifth Circuit on Monday. “They’re not part of the political branch, they’re part of the judicial branch, and I’m confident the judges hearing our case will take that job seriously.”

Rob McDuff, lead attorney on Barber v. Bryant, the second challenge to House Bill 1523, concurred, saying that the motivation behind the law is too nakedly political to withstand constitutional scrutiny.

Rob McDuff, lead attorney on Barber v. Bryant

“While a number of religious freedom bills have been adopted around the country, not one of them singled out for special protection specific religious views that call for discrimination against particular groups in the way that Mississippi’s House Bill 1523 does,” McDuff said. “It really is a unique and extreme bill.”

But Scott, of the Alliance Defending Freedom, bristled at the idea that House Bill 1523 was “extreme,” noting that the courts have a long history of protecting Americans’ freedom of conscience.

“There is nothing more mainstream than the idea that we ought to protect individual citizens and family business owners from unjust state action that compromises fundamental freedoms,” Scott said.

These two conflicting points of view – that House Bill 1523 protects freedom of conscience and that House Bill 1523 is blatantly discriminatory – are expected to take center stage in arguments before the court.

As they did in June, Kaplan and McDuff are expected to argue that House Bill 1523 is 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.

“What I feel really strongly about is this idea that we’re not anti-religion. We know people have these views, and we feel strongly about that,” Kaplan said. “This is just not the way to protect them.”

Still, the First Amendment and its guarantee of free exercise of religion are also expected to play a large role in arguments for House Bill 1523. In a brief filed in January, Bryant’s attorneys had argued that religious individuals have lately been put on the defensive by “homosexuals (with) enormous political clout.”

“For a court to hold that homosexuals are “politically powerless” after these episodes would be farcical. The far more plausible candidate for “political powerlessness” would be the devout Christian mom-and-pop-shop owners who are being bullied by ideologues
in the political and business worlds,” wrote Bryant’s attorneys in their brief.

A decision from the 5th Circuit could take weeks or months. After the decision is issued, attorneys will have the option of appealing before all the justices on the 5th Circuit or directly to the Supreme Court.