Legal strategists are hunkering down for a prolonged fight over Mississippi’s ‘religious-objections’ law.
On June 22, a federal appeals court reversed a lower federal court’s decision to strike down House Bill 1523, which the Legislature passed in 2016. Supporters of the law have said it is designed to protect the following “sincerely held religious” beliefs: 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.
Mississippi’s political leadership, including Republican Speaker Philip Gunn and Lt. Gov. Tate Reeves, lauded Thursday’s ruling. In the meantime, LGBT legal advocates have begun formulating strategies to again beat back the law.
The Human Rights Campaign, an LGBTQ-rights organization, hosted a news conference on Thursday with several other organizations including the ACLU of Mississippi and Planned Parenthood, all of whom said they would continue fighting HB 1523.
Rob Hill, state director of HRC Mississippi, said he will assume the law goes into effect immediately as his organization formulates strategies.
“LGBTQ Mississippians who are already vulnerable in our state, because there are no statewide protections as it relates to housing, employment and public accommodations, are even more vulnerable as a result of this bill,” Hill said.
Jennifer Riley-Collins, executive director of the American Civil Liberties Union of Mississippi, said there is a possibility that the law may not go into effect right away. In May 2016, the ACLU sued the state’s vital records registrar, Judy Moulder, to prevent Moulder’s office from enforcing the law.
“We believe it would go into effect immediately, but there is a possibility that we would have to wait about 21 days for the 5th circuit to issue its mandate,” Riley-Collins said Thursday. “That would be the only thing that would keep that bill from being legally in effect today.”
The Fifth Circuit’s decision Thursday is based on two legal challenges to House Bill 1523. Barber v. Bryant and Campaign for Southern Equality v. Bryant III argued the law violated the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. These amendments prohibit the government from favoring one religion over another and one group of citizens over another, respectively. The federal appeals judges ruled that plaintiffs lacked standing to sue over the law.
Paloma Wu, the legal director for the ACLU of Mississippi, explained that despite the ruling, plaintiffs can request what is known as an en banc hearing, a request to be heard by all the judges in the circuit rather than just the three-judge panel that rendered the most recent decision. Plaintiffs can also ultimately appeal to the U.S. Supreme Court.
She said by appealing en banc, then going to the Supreme Court, plaintiffs get two bites at the apple for appealing this decision, because one can appeal to the Supreme Court in negative en banc decisions.
Going straight to the Supreme Court gives plaintiffs one bite at the apple, she said. Roberta Kaplan, lead attorney on Campaign for Southern Equality’s challenge, has said she plans to petition for a review from the full 5th Circuit.
Meanwhile, the ACLU’s case had been put on hold at the district court level (Judge Reeves’ court) pending the outcome of this 5th Circuit’s decision. Now that the court has ruled, Wu said the ACLU will proceed with its case.
“We’re going to go to court and get that stay (or pause) lifted … and then we’re just barrel ahead going after the case because we have the ability right now to try to get it struck,” Wu said.
“So we’re sort of up to bat to sort of take aim at the beast … They’re fighting the decision. We’re going to proceed with our case against the law,” Wu said.
Mississippi Attorney General Jim Hood, who declined to represent the state in the HB 1523 lawsuits, said that he would defend any local schools that might be sued for refusing to provide accommodations for transgender students.