Plaintiffs appeal HB 1523 to U.S. Supreme Court

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Jeff Amy, AP

Approximately 300 people march in front of the Governor’s Mansion protesting the Mississippi law allowing religious groups and some private businesses to deny services to same-sex couples and transgender people.

Just hours after House Bill 1523 took effect on Tuesday, plaintiffs in the original lawsuit appealed their case to the U.S. Supreme Court, hoping the high court will declare the law unconstitutional.

On Sept. 29, a full panel of the Fifth Circuit Court of Appeals denied plaintiffs’ requests to rehear their challenge to House Bill 1523, known by some as Mississippi’s religious freedom law, finally opening the doors for the law to take effect after 18 tumultuous months of legal challenges.

Rob McDuff, the lead attorney for the plaintiffs on Barber v. Bryant, said that despite the Fifth Circuit’s decision, he believes the law is unconstitutional.

“We are asking the Supreme Court to review this case because it is unfair and unconstitutional. These laws are wolves in sheep’s clothing — it is LGBT discrimination disguised as religious freedom. By promoting discrimination in the name of religion, HB 1523 violates both the First and the Fourteenth Amendments,” McDuff said.

In June, a three-judge panel of the Fifth Circuit had declared that the plaintiffs did not have standing to challenge House Bill 1523 because they could not prove they had been harmed by a law that had yet to take effect. Although the judges did not rule on the merits of the case, their decision overturned an earlier federal court ruling that had declared the law unconstitutional.

By appealing to the U.S. Supreme Court, the plaintiffs say they are hoping for a nationwide ruling on whether individuals have standing to challenge state laws “that permit and fuel anti-LGBT discrimination on religious grounds,” according to press releases from the Mississippi Center for Justice and Lambda Legal, which are challenging the ruling along with McDuff.

“HB1523 goes into effect today, but our clients have been experiencing the ill effects of the law since it passed,” said Beth Orlansky, advocacy director for the Mississippi Center for Justice. “The Fifth Circuit’s decision is out of step with decisions in many other circuits and we are hopeful that the Supreme Court will grant review and provide clarity on this issue.”

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 to not rehear the case.

“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 in an emailed statement on Oct. 1.

Barber v. Bryant’s appeal also adds some legal heavyweights to their challenge. Joining the legal team are former U.S. Solicitor General Don Verrilli and attorney Paul Smith, who argued the landmark case of Lawrence v. Texas, which declared laws criminalizing same-sex relationships to be unconstitutional.

Barber v. Bryant is one of two lawsuits that challenged House Bill 1523 in U.S. District Court and before the Fifth Circuit. Attorneys on the second case, Campaign for Southern Equality v. Bryant IV, have indicated interest in appealing.

In addition, last week U.S. District Court Judge Carlton Reeves, indicated he would potentially revisit a case challenging Mississippi’s gay marriage ban, raising the question of whether House Bill 1523 violates an earlier Reeves order giving gay couples the right to marry.

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.”