Jonathan Mitchell spent a scant few minutes arguing the constitutional merits of House Bill 1523 before the 5th Circuit Court of Appeals. Standing, a side point in last summer’s argument over the law in U.S. District Court, took center stage Monday as Mitchell argued that, because the law never took effect, the plaintiffs had not yet been harmed by it – and did not have the standing to challenge it.
During one line of questioning, Justice Jerry E. Smith asked Mitchell to elaborate on his argument that citizens could not challenge a law, no matter how constitutional, until they had been harmed by it.
“Suppose that Mississippi passed a statute that said the official religion of Mississippi is Southern Baptist. Are you saying that no one would have standing under that statute (to challenge the law)?” Smith asked in an audio transcript of Monday’s hearing released Tuesday.
“They’d have to sue an agent of the state charged with enforcing that statute, if the statute is saying nothing more than that the official religion is Southern Baptist,” Mitchell said. “There needs to be some duty for an official to carry out.”
“Well, it would obviously violate the plain language of the First Amendment,” Smith said.
“Yes it would … But without more detail I don’t think I can give a candid answer because a statute that does nothing more than make a statement but doesn’t charge any state official with the duty of enforcement doesn’t produce a federal lawsuit under ex parte Young,” Mitchell said, citing the U.S. Supreme Court case that allows suits in federal courts against officials acting on behalf of states.
In contrast to the hearing in U.S. District Court last June, which was two days of often emotional testimony from more than a dozen individuals advocating for and against the law, Monday’s hearing before three 5th Circuit judges in Lubbock, Texas, was a terse 98-minute affair that eschewed personal arguments for technical ones.
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 lock this time around.
Gov. Phil Bryant appealed Reeves’ decision in July. The 5th 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.
But if these judges had any ideological opposition to gay marriage, it was not on display Monday.
Mitchell, representing Bryant pro bono along with the Alliance Defending Freedom, had argued that the law was not discriminatory. But Haynes appeared skeptical of this argument.
“When you have someone who goes to get a marriage license and they say I’m marrying Jane, and they go up to the counter to get their marriage license and the clerk goes, ‘Ohhh! Uhh, ahhh… I’m recused!’ And goes running down the hall and goes, ‘let me see if there’s anyone who will give you a license,'” Haynes said on the audio recording released Tuesday.
“I’m not sure why that’s not state-sponsored discrimination.”
“Well, that’s not protected under the statute,” Mitchell said, explaining that under House Bill 1523 a clerk is only allowed to recuse himself from performing a same-sex marriage if he can do so without delaying the proceedings.
“Why isn’t that permitted?” Haynes asked. “… Let’s say (the clerk has) given the proper notice. There’s nothing that says they can’t say why they’re recusing and can’t say it quite loudly.”
But by in large, the attorneys and justices homed in on the technical aspects of the law. One hour into arguments, Justice Haynes attempted to boil legal objections to HB 1523 down to one word: about.
Roberta Kaplan, lead attorney on one of the two lawsuits challenging the “religious freedom” law, had been arguing that House Bill 1523 sent a message to her clients that they were “outsiders in their own state” because one tenant of the law was protecting people who believed that marriage should only be between men and women.
“So if instead of saying the belief is that marriage should be recognized as the union of one man and one woman, saying the belief is about whether marriage is or should be recognized as the union of one man and one woman, in other words it protects if somebody has a belief one way or the other,” Haynes said.
“Then yes,” Kaplan said. “…Because it’s neutral. You could have religious views on one side and religious views on the other.”
House Bill 1523 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 Mitchell, a former Texas solicitor general, and the Alliance Defending Freedom, the conservative Christian organization that worked to get the law passed.
One year later, both advocates for and opponents of the law say it is still relevant. Among those waiting to hear the 5th Circuit opinion are a Republican governor, Paul LePage of Maine, and eight Republican attorneys general, who filed an amicus brief in support of the law, indicating similar laws could benefits residents of their own states.
“There certainly is a national interest in this and whether people should be forced to violate their convictions when they do their work. And I think that’s across the board,” said Kevin Theriot, an attorney for the Alliance Defending Freedom representing Bryant in Lubbock. “Should you be forced to use your artistic talents to do something you deeply disagree with? It doesn’t just protect religious people, it protects non-religious as well.”
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.