For a while, the legal challenge to Mississippi’s House Bill 1523 had seemed unstoppable. After its first court test, U.S. District Court Judge Carlton Reeves declared the state’s religious objections law unconstitutional in a blistering opinion that cited scripture and the state’s segregationist past.
Just one year earlier, the U.S. Supreme Court had declared same-sex couples had a constitutional right to marry. Then that spring, the Justice Department under President Obama said transgender students should be legally allowed to use restrooms and locker rooms that match their gender identities. And for many gay, lesbian and transgender activists, Reeves’s decision was the latest in a growing list of appellate and federal court wins for gay, lesbian and transgender rights.
“I think it’s very encouraging in terms of our prospects for the future,” Rob McDuff, the lead attorney on one of the two cases that challenged House Bill 1523, said last summer.
And then the case against House Bill 1523 met the Fifth Circuit, widely considered the most conservative appellate court in the country.
In June, a three-judge panel of the Fifth Circuit Court of Appeals handed House Bill 1523 its first win, overturning the preliminary injunction that had prevented the law from taking effect.
Two weeks ago, attorneys for the plaintiffs filed an en banc petition asking for the case to be reheard by all 14 judges on the Fifth Circuit. If the court grants the petition, what they decide will override the decision of the three-judge panel, which was made up of judges with strong conservative track records on social issues such as abortion and immigration. The law is stayed until the court decides whether it will grant the petition.
But while the wider Fifth Circuit panel might be more politically diverse — with five of the 14 judges appointed by Democratic presidents — several legal experts say they’re skeptical that this makes a difference. In addition to Mississippi, the Fifth Circuit’s jurisdiction includes Louisiana and Texas.
“It’s just a very conservative circuit,” said Tucker Carrington, a professor at University of Mississippi School of Law and the founding director of the Mississippi Innocence Project, which works to exonerate wrongly convicted prisoners. “If you look at some people on the Fourth Circuit (based in Richmond, Va.), they’re conservative, too, but they at least have (judges who are) a breath of fresh air on the bench.
This wasn’t always the case. As recently as the 1960s, the Fifth Circuit was considered one of the most progressive courts in the nation, responsible for several landmark civil rights cases, including Meredith v. Fair, which finally opened the gates of the University of Mississippi to James Meredith and other African Americans.
In many ways, the court’s trajectory from a progressive Southern outpost to what Carrington calls “deeply, deeply conservative” mirrors the shifting priorities of the federal government.
“They’ve changed, in effect, with the times,” said Jim Waide, a Tupelo attorney who has tried more than a dozen cases before the Fifth Circuit.
The Four Horsemen of the Apocalypse
The Fifth Circuit of the Civil Rights era was certainly a product of its times.
The federal government of the 1950s “prioritized progress,” according to Matt Steffey, a professor of law at Mississippi College. And the result was a panel of judges on the Fifth Circuit that better reflected priorities of the presidents who appointed them than the states they covered, which at that time also included Florida, Alabama and Georgia.
In a 1964 article, Time magazine called them the “trailblazing” Fifth Circuit and “the most fascinating bench in the U.S.”
“And they absolutely deserved that reputation,” Waide said. “They were an impressive group.”
Key to this reputation was a group of progressive judges known as “The Four,” so named by their colleague, conservative Mississippian Ben Cameron, as a reference to the Four Horsemen of the Apocalypse. Chief Justice Edward Tuttle and his colleagues John Minor Wisdom and John Robert Brown were all liberal Republicans, nominated by President Eisenhower. Richard Rives, the sole Democrat in the group, had been nominated by President Truman.
And because the Fifth Circuit so consistently advanced the federal government’s progressive agenda, the Supreme Court frequently followed the lower court’s lead, according to Jack Bass, whose book Unlikely Heroes chronicles the Fifth Circuit of the 1950s and 1960s.
Rather than issuing their own decisions, they often affirmed major Fifth Circuit opinions about civil rights or let them stand without hearing an appeal. According to Bass, the justices believed that civil rights decisions written by Southern judges would be more palatable in the pro-segregation Deep South.
And the Fifth Circuit of this era delivered on these expectations again and again, with landmark decisions that laid out a timetable for school integration, solidified voting rights, expanded the rights of prisoners and the mentally ill, and barred employment discrimination for blacks and women.
But all judges retire, and over the course of the next two decades, the face of the court began to shift.
“Even during the ’70s and into the ’80s, it was still a good, open-minded court. Once Reagan got in and started appointing people, that’s the key change there,” said James L. Robertson, a former Mississippi Supreme Court justice.
“But it’s not fair to say that just because a judge doesn’t like Roe vs. Wade that he’s not a good judge,” said Robertson, invoking the Supreme Court decision that legalized abortion and has often been considered a litmus test for the appointment of liberal judges. “And I don’t know of any of those guys down there now who don’t do their best. They’ve got a different worldview from the court during the Tuttle, Rives, Wisdom era. But they’re still very good.”
Still, both Robertson and Waide acknowledge that the Reagan’s election led to a shift in priorities for the court.
Waide said Reagan drove home the “Southern Strategy” that President Nixon started, melding federalism and social values prevalent in the Deep South to Republican fiscal policy to create a “conservative” brand that endures today.
“Prior to the election of Ronald Reagan, (conservatism) was known as a fringe element, someone like Barry Goldwater. With Reagan it has become a politically acceptable philosophy,” Waide said.
Three of Reagan’s appointments remain on the bench today, and one, Jerry E. Smith, wrote the Fifth Circuit’s decision on House Bill 1523.
Still, presidents nominate appellate court judges, so theoretically, a Democratic president should have just as much influence over the Fifth Circuit as the “wildly liberal” Ninth Circuit.
But Steffey says this ignores the reality. Presidents may nominate federal and appellate judges, but senators still must approve them. And many senators are invested in ensuring that the judges appointed to courts in their states reflect their values — and their campaign promises.
“Presidents in particular but also lesser government officials campaign on the idea that their election means, for example, a conservative appointment, not just at the Supreme Court but down the line, too,” Steffey said.
Mississippi, Louisiana and Texas are the three states that make up the Fifth Circuit today. And while Louisiana’s two seats have consistently switched parties, neither Texas nor Mississippi has elected a Democrat to the Senate in almost 30 years.
And because of this, Steffey says that even the appointments under Obama and Clinton are probably not as liberal as those on other circuits.
“On average I think, yes, they’re more conservative on the Fifth Circuit because they reflect the political and social reality on the ground,” Steffey said.
“Of course, this whole process works more better, and vacancies are filled more fully and with less friction when the participants of the political process have good working relationships, when presidents and senators can reach across the aisle, which seems to be less common in the past decade.”
Currently three seats vacated under President Obama remain open.
According to Waide, the progress mapped out by the Fifth Circuit Four may have, ironically, laid the groundwork for its shift from liberal to conservative.
“When I was 20 years old, you couldn’t be seen shaking a black man’s hand,” Waide said. “So for people who grew up in that time, it’s a dramatic change. And they’ve become skeptical of civil rights cases because there’s lesser instances of discrimination. It’s harder to see.”
Carrington, however, remains more prosaic when assessing the court’s shift, saying that the Fifth Circuit’s current reputation may be so entrenched because of its progressive history.
“Part of it is also because there’s this sort of dissonance with where the court’s been in the past.”
A “very friendly” panel
House Bill 1523, which Gov. Phil Bryant signed into law in April 2016, 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 bill would legally protect anyone who refuses marriage-related services because of these beliefs.
Lawsuits opposing the statute began almost as soon as the ink dried on the legislation. Two of these cases eventually made it to U.S. District Court, where last June Judge Carlton Reeves issued a preliminary injunction only minutes before the bill would have become law, saying, “House Bill 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.”
When the three-judge panel of the Fifth Circuit issued its decision, however, they declined to rule on the merits of the case. Instead, they overruled Reeves’s injunction on a technicality, arguing that the plaintiffs didn’t have standing to file the lawsuit because they could not have been injured by a law that had never taken effect.
And if this represented a total reversal of Reeves’s decision, it surprised few in the legal community.
“The state of Mississippi in the 1523 case drew a panel of judges that was considered very friendly to the state’s arguments,” Steffey said.
All three judges do indeed have strong conservative bona fides — Judges Catharina Haynes and Jennifer Elrod were appointed by George W. Bush, and Judge Jerry E. Smith was appointed by Ronald Reagan. And basing the decision on standing was a way to avoid invalidating a law championed by Republican state leaders, according to Steffey.
“This was a way for the Fifth Circuit to decide for the state without really deciding for the state,” Steffey said. “Because once you get into the merits of the case, I become completely convinced that this law is unconstitutional.”
Robertson, the former Mississippi Supreme Court justice who now practices law in Jackson, agreed, calling the standing doctrine “outrageously ridiculous.”
“The standing doctrine is frequently used as an excuse to avoid deciding tough cases,” Robertson said. “Judges get paid to decide cases, not come up with excuses not to decide cases.”
Waide, who has had the Fifth Circuit rule against him in five civil rights cases, only to later see those decisions reversed by the U.S. Supreme Court, agrees that the Fifth Circuit is far more conservative than the Supreme Court. But he said the panel’s decision to throw out the preliminary injunction doesn’t reflect the politics of its judges so much as their faithful interpretation of jurisdiction.
“It was a simple standing question – it has nothing to do with the merits. You have to show some specific injury. You can’t just say, ‘I don’t like this law.'”
For some legal scholars, however, the decision to rule on a technicality rather than delve into the law’s constitutionality speaks most prominently to the Fifth Circuit’s relationship with the U.S. Supreme Court.
If the Fifth Circuit of the 1960s made its name with precedent-setting decisions on controversial issues, Steffey says today’s Fifth Circuit would rather let the Supreme Court decide how to handle these issues. And this means that getting the entire Fifth Circuit to rehear the case against against House Bill 1523 could be an uphill battle for the plaintiffs.
“It’s not because the standing argument doesn’t have merit. It’s because (ruling on standing) perhaps reflects the Fifth Circuit’s desire to avoid getting even a half step ahead of the Supreme Court regarding LGBT rights,” Steffey said. “There is abundant authority to support the standing of the plaintiffs in this case.”
The last time the Fifth Circuit heard a case on LGBT issues was in early 2015 with DeLeon v. Perry, which challenged Texas’s same-sex marriage ban. The Fifth Circuit’s decision was still pending on June 25 of that year when the Supreme Court ruled in Obergefell v. Hodges that same-sex couples had the right to marry regardless of state law. Six days later, the Fifth Circuit issued their ruling affirming that decision.
The case for religious objections
So what does this mean for the plaintiffs’ request for an en banc hearing before the full Fifth Circuit in their case against House Bill 1523?
Robertson said that while en banc petitions are not often granted, there’s a good shot the court will make an exception for this case. One of the standards for review is proving that the case is of “exceptional importance.” And he said the challenge to House Bill 1523 clearly is.
“When you have controversial cases, where there’s a lot of public interest, it just doesn’t look right to have a random (selection of) three judges being the face of the court,” Robertson said.
Another standard for review, however, is that the court thinks the panel’s decision represents a conflict with another opinion by either the Fifth Circuit or the Supreme Court. And neither has ruled on conflicts between religious freedom laws and gay, lesbian, and transgender rights.
Last month, however, the Supreme Court announced it would hear a similar case out of Colorado, where a baker said a state anti-discrimination law violates his right to refuse to make a wedding cake for a gay couple.
If the Fifth Circuit doesn’t order an en banc hearing, the attorneys for the plaintiffs have said they likely will appeal the case to the Supreme Court. And, Steffey said, the Fifth Circuit may be happy to let the higher court make this decision.
“I think it is correct to say there may not be a great appetite on the Fifth Circuit to visit these issues on the merits, and therefore no great appetite to take the procedural question en banc,” Steffey said.
The panel’s decision on standing, however, has also opened the door for House Bill 1523’s opponents to push back against it. Because the court declined to rule on the legislation’s merits, should the law go into effect, attorneys can refile the case with different clients, ones who can prove that the law has harmed them.
“Ultimately, the Fifth Circuit’s going to have to receive the merits,” Steffey said. “Unless the state repeals the law.”