After more than a year of legal battles and national headlines, Mississippi’s controversial House Bill 1523, often referred to as the religious freedom law, will take effect Friday, Oct. 6.
On Friday, the Court of Appeals for the Fifth Circuit denied plaintiffs’ request for a rehearing with the full panel of the Fifth Circuit. The plaintiffs had hoped to override the June decision in which a three-judge panel ruled unanimously that plaintiffs did not have standing to challenge the law. Sunday’s announcement validates this earlier decision.
Gov. Phil Bryant, a vocal proponent of the law and the defendant in the two cases that challenged it before the Fifth Circuit, praised the court’s decision.
“As I have said from the beginning, this law was democratically enacted and is perfectly constitutional. The people of Mississippi have the right to ensure that all of our citizens are free to peacefully live and work without fear of being punished for their sincerely held religious beliefs,” Bryant said.
But a press release from the Campaign for Southern Equality, which had challenged the law, referred to House Bill 1523 as “the nation’s most sweeping anti-LGBT law.”
“HB 1523 is a reckless law that discriminates against and hurts the LGBT community. We have fought this law from day one and will continue to do so with every tool available to us,” said Rev. Jasmine Beach-Ferrara, executive director for the Campaign for Southern Equality.
On Monday, Rob McDuff, lead attorney on one of the two cases to challenge the law, Barber v. Bryant, announced that he would appeal the Fifth Circuit’s decision to the U.S. Supreme Court.
“This is an unfair and unconstitutional law, and we are taking our claim to the Supreme Court,” McDuff said. “People should not have to live through discrimination in order to challenge it.”
When attorneys file an en banc petition, a majority of the Fifth Circuit’s active judges must agree to rehear the case. Only two of the fourteen judges agreed to rehear the case.
In the original Fifth Circuit decision, the three judge panel ruled that the plaintiffs of the two cases, Campaign for Southern Equality v. Bryant III and Barber v. Bryant, lacked standing to challenge House Bill 1523 because it 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,” Judge Jerry Smith wrote in his opinion for the Fifth Circuit.
In his dissent Friday, Judge James L. Dennis argued that the plaintiffs did, in fact, have standing and ruling that they did not had contradicted legal precedent set by both the Fifth Circuit and the Supreme Court.
“The stigmatic harm that flows from the enactment of a law or adoption of official policy that deems a non-adherent plaintiff an “outsider” in his own community is sufficient to confer standing. By denying standing in the present case, the panel opinion falls into grievous error, unjustifiably creates a split from our sister circuits, and rejects pertinent
Supreme Court teachings,” Dennis wrote.
For many legal scholars, however, the Fifth Circuit’s decision to reject the en banc petition did not come as a surprise. The Fifth Circuit is widely considered one of the most conservative appellate courts in the country. And basing the decision on standing was a way to avoid invalidating a law championed by Republican state leaders, according to Matt Steffey, a professor of law at Mississippi College.
“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.”
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 law will finally take effect on Friday, the legal fight against it likely is far from over. Attorneys can appeal the decision to the Supreme Court. Or they can refile the case with different clients, ones who can prove the law has harmed them. Unlike the U.S. District Court opinion, the Fifth Circuit’s decision ruled on standing and did not address the merits of the case, namely whether the law was or was not constitutional.
“It’s important to remember that the Fifth Circuit’s decision, while deeply disappointing, was limited to the question whether we had sufficiently alleged standing under the Establishment Clause (of the U.S. Constitution). The only court decision on the merits is the decision of Judge Reeves at the district court, which held HB 1523 to be unconstitutional, which it clearly is. So stay tuned. Rest assured that we will do everything humanly possible to continue to fight this harmful law on the merits in order to protect our nation’s constitutional values and the LGBT citizens of Mississippi,” said Roberta Kaplan, lead attorney for the plaintiffs in Campaign for Southern Equality v. Bryant III.
In their press release, a spokesperson for the Campaign for Southern equality said that anyone who experiences discrimination under the new law should contact the organization.
Neither attorneys for the governor nor his office responded to requests for comment.
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The 1st Amendment became a part of our Constitution in 1791, over 200 yeas ago, and the 14th in 1868, nearly 150 years ago. These two amendments are the ones primarily involved in this debate. And yet, would this law have even been controversial up until the last decade or two?