A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled today that Mississippi’s sweeping anti-LGBT “religious freedom” law known as HB 1523 can take effect, overturning an injunction imposed by a lower court last year. Writing for the court, U.S. District Judge Jerry E. Smith determined that the plaintiffs in two lawsuits, which include LGBT Mississippians and advocacy groups, a church, and clergy members, do not have standing to challenge the law, since they have not suffered material harm under the law… Yet.
Without considering the merits of the case, the court ruled that “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.”
The court did say one plaintiff, a gay man who stated his intent to marry, “comes the closest” to having standing, but stressed that he had not been denied wedding-related services from a business, nor had he been denied a marriage license from a county clerk or judge. “Without more, we are left to speculate as to the injuries he and the other plaintiffs might suffer,” Smith wrote. “That we cannot do.”
Essentially, the court determined that because none of the plaintiffs have yet been discriminated against under the law (which never took effect thanks to the dual litigation that was dismissed Thursday), they do not have standing to challenge the law. Although Thursday’s ruling clears the way for the law to take effect, the Campaign for Southern Equality, which brought one of the lawsuits at issue, stressed that HB 1523 is not yet in force, as the plaintiffs have time to appeal Thursday’s ruling to the full Fifth Circuit for an en banc hearing. A press release from Campaign for Southern Equality confirmed that the organization does plan to pursue en banc review.
If the 5th Circuit agrees to take this case en banc, the preliminary injunction will remain in effect until the court rules.
— Southern Equality (@SouthernEqual) June 22, 2017
“This decision is not only deeply upsetting for the rights of LGBT individuals living in Mississippi, but also for the protection of religious liberty in our country,” said Roberta Kaplan, the out attorney serving as lead counsel on the case filed by Campaign for Southern Equality in Thursday’s statement. “Our clients have already suffered enough. The state communicated a message loudly and clearly with the passage of HB 1523: only certain anti-LGBT beliefs will get the protection and endorsement of the state. Under the logic of this opinion, it would be constitutional for the state of Mississippi to pass a law establishing Southern Baptist as the official state religion. We plan to seek an en banc review of the decision by the 5th Circuit.”
The law, signed by Mississippi Gov. Phil Bryant in April 2016, is arguably the most aggressive anti-LGBT “religious liberty” law anywhere in the country. Formally called the “Protecting Freedom of Conscience from Government Discrimination Act,” the law singles out three specific faith-based beliefs about sexuality and gender that can be used as legal justification for businesses and individuals (including state and federal employees) to deny service to anyone who they believe offends those “sincerely held religious beliefs.” As enumerated in the law, those beliefs that deserve special legal protection are that:
(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) refer[s] to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.
When U.S. District Judge Carlton Reeves issued his scathing ruling last June finding that the law violated the Establishment Clause, LGBT advocates celebrated the initial defeat of a tactic increasingly used by right-wing lawmakers attempting to legally privilege certain aspects of Judeo-Christian morality to circumvent nondiscrimination laws. While that strategy has appeared in various state-level efforts, its closest federal equivalent is the First Amendment Defense Act (FADA), which, when introduced in Congress last year, enumerated almost identical beliefs that should be “protected” from “adverse government action.” Congressional Republicans have promised to reintroduce FADA, and President Trump has said he will sign it into law.
While LGBT organizations issued measured calls for calm amid understandable panic, right-wing legal nonprofits celebrated the ruling, claiming a victory over so-called government tyranny, and suggesting that it was the LGBT plaintiffs whose efforts to be treated equally under the law were actually attempts to oppress good, God-fearing business-owners and citizens.
“Good laws like Mississippi’s protect freedom and harm no one,” claimed Kevin Theriot, senior counsel for Alliance Defending Freedom (ADF), the well-funded Christian legal group representing Gov. Bryant in the cases. “The sole purpose of this law is to ensure that Mississippians don’t live in fear of losing their careers or their businesses simply for affirming marriage as a husband-wife union. Those who filed suit have not and will not be harmed but want to restrict freedom and impose their beliefs on others by ensuring dissenters are left open to the government discrimination that has already occurred in states without protective laws like this one.” ADF was recently added to the Southern Poverty Law Center’s list of active hate groups, categorized as an anti-LGBT extremist group that regularly spreads misinformation and falsehoods about LGBT people and issues.