Rob McDuff, lead attorney on Barber v. Bryant

Plaintiffs challenging the state’s controversial House Bill 1523 on Thursday asked the entire Fifth Circuit Court of Appeals to rehear the case with the hope of overriding an earlier decision that could allow the law to take effect.

In June, a three-judge panel of the Fifth Circuit unanimously ruled that plaintiffs opposing House Bill 1523 did not have standing to bring the case. This reversed the preliminary injunction against the law issued by a lower court last year which had temporarily prevented the law from taking effect.

Rob McDuff, who is the lead attorney in Barber v. Bryant, one of the two cases to challenge House Bill 1523, said he’s hopeful the full Fifth Circuit would see that the law was unconstitutional, regardless of whether or not it takes effect.

“(House Bill 1523) bestows special rights on people who hold certain religious views and not on people who hold other religious views, and it encourages discrimination against LBGT Mississippians, who have as much right to be here as anybody else. It is unfair and unconstitutional and nothing about the panel’s decision regarding the doctrine of standing changes that,” said McDuff in a statement.

Thursday’s announcement of an en banc petition is not a surprise. Both McDuff and Roberta Kaplan, who is the lead attorney on Campaign for Southern Equality v. Bryant IV, had said in June that they would likely ask the entire Fifth Circuit to review the case after the three-judge panel dismissed last summer’s U.S. District Court verdict.

Writing on behalf of himself and Judges Catharina Haynes and Jennifer Elrod, Judge Jerry E. Smith ruled that the original plaintiffs challenging House Bill 1523 lacked standing because the law had not yet taken effect.

“Under this current record, the plaintiffs have not shown an injury-in-fact caused by HB 1523 that would empower the district court or this court to rule on its constitutionality. We do not foreclose the possibility that a future plaintiff may be able to show clear
injury-in-fact … but the federal courts must withhold judgment unless and until that plaintiff comes forward,” Smith wrote in his opinion for the Fifth Circuit.

But Roberta Kaplan, lead attorney on the second challenge to House Bill 1523, Campaign for Southern Equality v. Bryant IV, said the judges’ decision that the plaintiffs lacked standing set a dangerous precedent.

“If the panel’s decision is allowed to stand, then as a practical matter no one would have standing to challenge a statute like HB 1523 that officially endorses certain sectarian religious views over others. That would make it very difficult, if not impossible, for the courts to enforce the core concept of religious neutrality that animates the Establishment Clause,” Kaplan said in a statement.

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.

Gov. Phil Bryant signed the bill on April 5, 2016.

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.”

Although the Fifth Circuit’s June ruling reversed this decision, the law will not automatically go into effect. The judges would need to issue a mandate enforcing the law, which attorneys say is likely to be delayed until the full Fifth Circuit decides whether they will rehear the case.

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Larrison Campbell is a Greenville native who reports on politics with an emphasis on public health. She received a bachelor’s from Wesleyan University and a master’s from Columbia University's Graduate School of Journalism.Larrison is a 2018 National Press Foundation fellow in public health, a 2019 Blue Cross Blue Shield Foundation of Massachusetts fellow in health care reporting and a 2019 Center for Health Journalism National Fellow.