The controversial House Bill 1523, often called the most sweeping anti-gay legislation in the country, will remain law in Mississippi.
On Monday, the United States Supreme Court declined to hear an appeal, instead upholding the decision of the Fifth Circuit Court of Appeals which maintained that the original plaintiffs never had standing to challenge the law in the first place.
For many gay, lesbian and transgender advocates, who have argued for nearly two years that the law unfairly singles out certain minority groups for discrimination, Monday’s decision was a blow.
“Unfortunately, the Court decided to pass on the opportunity to answer a critical question about who has access to justice in this country and how much suffering our most vulnerable have to experience before they can seek recourse in the courts,” said Beth Orlansky, advocacy director for the Mississippi Center for Justice, a plaintiff in the case. “But we will continue to fight against HB 1523 on behalf of LGBT Mississippians and everyone in our state impacted by this draconian law.”
But many religious conservatives who fought hard to get the bill signed into law, and have defended it as it worked its way through the court system, said Monday’s decision was an affirmation of religious rights.
“Good laws like Mississippi’s protect freedom and harm no one,” said Kevin Theriot, a senior attorney for the conservative Alliance Defending Freedom, which had a hand in drafting the original legislation and later represented Gov. Phil Bryant’s appeal pro bono.
“The 5th Circuit was right to find that those opposing this law haven’t been harmed and, therefore, can’t try to take it down. Because of that, we are pleased that the Supreme Court declined to take up these baseless challenges, which misrepresented the law’s sole purpose of ensuring that Mississippians don’t live in fear of losing their careers or their businesses simply for affirming marriage as a husband-wife union.”
Gov. Phil Bryant, a vocal proponent of the law and the defendant in the two cases that challenged it before the Fifth Circuit, reissued an earlier statement Monday that expressed his support for the law.
“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 Monday.
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 into law on April 5, 2016. Protests ensued almost immediately both within the state and nationwide, with heads of national companies, even some based in Mississippi, issuing blistering condemnations of the law —and of the state for supporting it.
The repercussions are still being felt nearly two years later. Last week, Stony Brook, a public university in New York, cancelled a three-game baseball series at the University of Southern Mississippi because of New York’s ban on non-essential travel to this state. New York Gov. Andrew Cuomo passed that state’s law the same day Bryant signed House Bill 1523. Several other states and municipalities soon followed suit.
To be clear, the Fifth Circuit never ruled on the actual merits of the case, unlike the federal court ruling that their decision overturned. In that case, plaintiffs had successfully argued that House Bill 1523 was unconstitutional, violating both the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause.
Instead, in June, a three-judge panel of the Fifth Circuit had ruled unanimously on what was effectively a technicality, saying that the plaintiffs did not have standing to bring the case because they could not prove they had been harmed by a law that had yet to take effect. Both challenges to the law, Campaign for Southern Equality IV v. Bryant and Barber v. Bryant, had been filed before the law went into effect, an attempt, according to plaintiff’s attorneys, to prohibit the law from ever taking effect.
“The Supreme Court’s decision declining to review this narrow question about standing is not an endorsement of HB 1523. That law, which elevates the religious beliefs of those who would discriminate over the beliefs of those who don’t, is unfair and unconstitutional, and nothing about this latest development changes that,” said Rob McDuff, the lead attorney on Barber v. Bryant.
LGBT advocates and others seeking to challenge House Bill 1523 say that Monday’s decision is far from the end of the road. In late October, U.S. District Court Judge Carlton Reeves, who issued the June 2016 decision declaring the bill unconstitutional, lifted the stay on Mississippi’s gay marriage case, Campaign for Southern Equality I v. Bryant.
Among its provisions, House Bill 1523 would let county clerks with sincerely held religious objections to gay marriage recuse themselves from issuing marriage licenses to gay couples. Robbie Kaplan, the lead attorney on both Campaign for Southern Equality suits, argues this recusal could deny gay Mississippians equal access to marriage—thereby violating both Reeves’ ruling and the 2015 Supreme Court decision that legalized gay marriage nationwide.
Now that the law has taken effect, other lawsuits, challenging the law on its merits, are also likely.
“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,” Kaplan said.
Although the U.S. Supreme Court will not hear arguments against House Bill 1523, it is currently weighing a similar dispute between LGBT rights and religious freedoms in the so-called Colorado cake-baker case. This case involves a baker who declined to make a wedding cake for a gay couple, citing religious freedom.
But the case differs from potential challenges in Mississippi because Colorado has a statewide anti-discrimination law that prohibits businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation. As a result, the baker, who had been sanctioned by the state, is the one calling Colorado’s law unconstitutional.
The Supreme Court, which heard arguments in December, will issue a decision in that case before the end of this term in June.
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The majority of states, including Mississippi, have no law banning discrimination based on sexual orientation so this new law doesn’t really change anything and seemed unnecessary. It is legal in the majority of states to refuse service to gays, to fire someone because they are gay or to refuse to sell or rent real estate to gays.
President Trump better watch out if he visits the state, businesses could refuse to serve him based on the part of the law “that people should not have sex outside such marriages.” Trump stepped outside his first marriage with the woman who became wife 2 and stepped outside marriage 2 with the woman who became wife 3.