Mississippi enacted H.B. 1523 in 2016. The measure enshrines in state statutes a special privilege to discriminate for people whose religious or moral convictions oppose same-sex marriage and sexual relations outside of opposite-sex marriages, and who reject the idea that a person could have a gender identity different from their “biological sex” as identified through external observation of genitals at birth. As part of that special privilege, such individuals are immunized from any “discriminatory” action by the state government, government employees charged with issuing marriage licenses can decline to issue them to same-sex couples (provided that there is somebody in the pertinent clerk’s office who is willing to process the license application), religious organizations enjoy broad exemptions from complying with anti-discrimination laws, health care providers may withhold services, and businesses that provide wedding-related goods and services can refuse to deal with same-sex couples. The measure also includes a “bathroom bill” provision that protects entities that require transgender people to use bathrooms consistent with their birth certificate gender designation, and prohibits the state from taking adverse action against a state employee for expressing views consistent with those specially protected by the statute. Although the state’s anti-discrimination laws do not prohibit sexual orientation or gender identity discrimination, at least two municipal ordinances containing such prohibitions would be preempted by the state law. It is arguable, in light of pending litigation in other parts of the country, that some federal anti-discrimination laws (in particular, Title IX and Title VII) may be available in some of the situations covered by H.B. 1523.
Several lawsuits were quickly filed to challenge the constitutionality of this measure and keep it from going into effect on July 1, 2016. In one of the lawsuit, Barber v. Bryant, brought by Lambda Legal on behalf of a group of affected Mississippi residents with assistance of local counsel, U.S. District Judge Carlton W. Reeves granted a motion for a preliminary injunction to keep the measure from going into effect, finding that it was likely that the plaintiffs would prevail on their argument that the measure violates the 1st and 14th Amendments, specifically the Establishment and Equal Protection Clauses, and that allowing the measure to go into effect would inflict irreparable injury on the plaintiffs and those similarly situated. See 193 F. Supp.3d 677 (S.D. Miss. 2016). But upon the state’s appeal, a unanimous 5th Circuit panel ruled in June that plaintiffs lacked standing to bring suit before the measure actually went into effect. The panel opined that the mere enactment of a measure alleged to violate the Establishment Clause did not tangibly harm any individual sufficiently to give them standing to challenge the enactment in federal court. See 860 F.3d 345 (June 22, 2017).
Lambda Legal then filed a motion for rehearing en banc, which was denied by the court on September 29, with two judges dissenting in an opinion by Circuit Judge James L. Dennis. See 2017 U.S. App. LEXIS 19008. Dennis explained at length why the panel decision was inconsistent with prior 5th Circuit standing decisions, as well as rulings from other circuits and the Supreme Court. Numerous decisions by federal courts have rejected objections to standing when the lawsuit was challenging a statute alleged to violate the Establishment Clause through the enactment of a state policy improperly advancing or privileging particular religious beliefs at the expense of those who do not share those beliefs. Indeed, Judge Dennis anticipated that the plaintiffs would seek Supreme Court review, specifically stating in his opinion that the panel’s ruling created a circuit split on the issue of standing to bring an Establishment Clause challenge against a state statute. Showing a circuit split of authority on an important question of federal law is a key factor in obtaining Supreme Court review.
Lambda Legal promptly announced that it would petition the Supreme Court to review the 5th Circuit’s ruling. Since this was an appeal by the state from the district court’s grant of a preliminary injunction, the Supreme Court would presumably not be asked to address the underlying merits of the case, but to focus solely on whether the 5th Circuit erred in dismissing the case on grounds of standing. Perhaps, if the Court found standing, it would also address the appropriateness of the district court’s issuance of the preliminary injunction, but more likely it would remand the case to the 5th Circuit for consideration of that issue. Meanwhile, Lambda’s request that the 5th Circuit delay filing its mandate and not order the lifting of the preliminary injunction while Lambda seeks Supreme Court review was denied unceremoniously in a non-explanatory one-sentence order signed by Circuit Judge Jerry E. Smith on October 3, which meant that H.B. 1523 would finally go into effect on October 10 unless Lambda could get an emergency stay from the Supreme Court.
Counsel for plaintiffs listed in the June 22 Court of Appeals opinion include Robert Bruce McDuff, Sibyl C. Byrd, and Jacob Wayne Howard of McDuff & Byrd (Jackson, MS), Elizabeth Littrell of Lambda Legal’s Southern Regional Office in Atlanta, Beth Levine Orlansky of the Mississippi Center for Justice (Jackson, MS), and Susan Sommer from Lambda Legal’s headquarters office in New York. Amici in support of plaintiffs include the Southern Poverty Law Center, a variety of AIDS service organizations, a large group of liberal religious organizations, GLAD, NCLR, ACLU, a coalition of pro-LGBT business groups, among others. In addition to Mississippi government attorneys providing primary defense for the statute, there were amicus briefs from conservative religious and “pro-family” (i.e., anti-LGBT family) groups and from outspokenly anti-LGBT officials from Texas, Louisiana, Nebraska, Arkansas, Nevada, Oklahoma, South Carolina, Utah and Maine. From the range and quantity of amicus parties listed, it should be clear to the Supreme Court that this litigation is of intense national interest.
Meanwhile, Judge Reeves, who had issued the preliminary injunction in Barber, quickly moved on a motion by Roberta Kaplan, counsel for plaintiffs in Campaign for Southern Equality v. Bryant, the original Mississippi marriage equality case, to take up the question whether HB 1523 violates the court’s ruling striking down the state’s constitutional and statutory bans on same-sex marriage by privileging state officials to refuse to issue marriage licenses to same-sex couples based on their religious of moral convictions. The Jackson Free Press reported on October 3 that Reeves scheduled a telephone conference with attorneys in the case for later in October. In agreeing to reopen the marriage case, Reeves had written that in HB 1523 “the State is permitting the differential treatment to be carried out by individual clerks. A statewide policy has been ‘pushed down’ to an individual-level policy. But the alleged constitutional infirmity is the same. The question remains whether the Fourteenth Amendment requires marriage licenses to be granted (and out of-state marriage licenses to be recognized) to same-sex couples on identical terms as they are to opposite-sex couples.” The question now will be whether Reeves will grant a motion to amend the permanent injunction he issued in that case, which had been upheld by the 5th Circuit pursuant to Obergefell v. Hodges, to bar the state from failing to provide services to same-sex couples equal to those afforded different-sex couples by letting individual clerks refuse to provide the services. At least one other U.S. District Judge is on record as to this: U.S. District Judge David Bunning, who threw Kim Davis, a county clerk who was refusing to issue marriage licenses to same-sex couples in Rowan County, Kentucky, into prison for contempt of the federal court. As the Supreme Court most recently made clear on June 26 in Pavan v. Smith, the Obergefell ruling requires states to afford same-sex couples equal treatment with regard to all aspects of marriage.