A three-judge panel of the Houston-based U.S. Court of Appeals for the 5th Circuit dissolved a preliminary injunction and dismissed two lawsuits challenging the constitutionality of H.B. 1523, a Mississippi law enacted last year intended to assure that people who hold anti-gay or anti-transgender views cannot be subject to any adverse action from their state or local governments. Barber v. Bryant, 2017 Westlaw 2702075, 2017 U.S. App. LEXIS 11116 (June 22, 2017).
U.S. District Judge Carlton Reeves, finding that the plaintiffs were likely to prevail on their claim that the law violated their equal protection rights as well as the constitutional prohibition on establishment of religion, issued a preliminary injunction last June 30, so the law, which was to become effective last July 1, has not gone into effect. Ruling on June 22, the panel found that none of the plaintiffs had standing to bring this challenge to the law because, in the court’s opinion, none had suffered an individualized injury that would give them the right to challenge the law.
The court was careful to state that because it did not have jurisdiction over the case, it was not expressing an opinion about whether the law was constitutional.
Plaintiffs’ attorneys from the two cases announced that they would seek “en banc” review by the full 5th Circuit bench and, failing that, would petition the Supreme Court. The 5th Circuit is a notably conservative bench, however, with only four of the fourteen active judges having been appointed by Democratic presidents. The three-judge panel that issued this decision consisted entirely of Republican appointees.
Section 2 of the law identifies three “religious beliefs or moral convictions” and states that people who act in accord with those beliefs or convictions are protected from “discriminatory” action by the state, such as adverse tax rulings, benefit eligibility, employment decisions, imposition of fines or denial of occupational licenses. The “religious beliefs or moral convictions” are as follows: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
The statute provides further that people who claim to have suffered some adverse action because they act on these beliefs have a right to sue state officials, and to use this law as a defense if they are sued by individuals.
Making its effect more concrete, the statute specifically protects religious organizations that want to discriminate against LGBTQ people in employment, housing, child placement, and marriages, and protects parents who decide to “raise their foster or adoptive children in accordance” with one of the three listed beliefs. Businesses that provide wedding services are protected against liability for denying such services to LGBTQ people, as are medical and mental health care providers, except for emergency medical situations. For example, a health care provider cannot interfere with visitation with a patient by their designated representative (who may be a same-sex partner or spouse). State agencies that license professionals may not refuse to license somebody because they hold or articulate one of the listed beliefs.
The statute also specifically protects “any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms,” and protects state employees who want to voice their beliefs as listed in the statute. It also specifically allows county clerks and judges to refuse to deal with same-sex couples seeking to marry, so long as arrangements are made to allow such marriages to take place without delay.
To sum up, the statute clearly sought to exempt religious organizations and individuals from having to treat LGBTQ people as equal with everybody else, providing “special rights” to discriminate against LGBTQ people and same-sex couples. Ironically, because Mississippi law does nothing to protect the civil rights of LGBTQ people, many of the applications of this statute are more symbolic than real, at least as far as state law goes. A Mississippi landlord incurs no state law penalty for refusing to rent a dwelling place to a same-sex couple, for example, and businesses in Mississippi are free to deny goods or services to people who are gay or transgender without incurring any state law penalty. Few local governments in Mississippi have adopted laws that would be affected, although some educational institutions would clearly be affected, especially by the facilities access provision.
The problem for the plaintiffs, in the eyes of the court of appeals, was that the judges could not see that any of the plaintiffs have the kind of particularized injury to give them standing to sue the state in federal court when this law had not even begun to operate. The plaintiffs had relied heavily on the argument that the law imposed a stigma, signaling second-class citizenship, and sought to enshrine by statute particular religious views, but the court rejected these arguments as insufficient.
The plaintiffs pointed to cases in which courts had ruled that plaintiffs offended by government-sponsored religious displays had been allowed to challenge them under the 1st Amendment in federal court, but Judge Jerry E. Smith, writing for the panel, rejected this analogy. The court also rejected taxpayer standing, finding that H.B. 1523 did not authorize expenditures in support of religion. The court found that by protecting both “religious beliefs and moral convictions,” the legislature had avoided privileging religion, since persons whose anti-gay beliefs were not religiously motivated would be protected from adverse government treatment under this act. An atheist who believes same-sex marriage is wrong or that sex is immutable would be protected, even if these beliefs had no religious basis.
One plaintiff who based his standing on his intention to marry in the future was rejected by the court, which pointed out that he did not specify when or where he intended to marry. “He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi,” wrote Judge Smith.
The court made clear that if anybody actually suffers a concrete injury after the law goes into effect, they could file a new lawsuit and raise their challenge.