5th Circuit Court of Appeals Dismisses HB1523 Case Despite Deep Harms to Mississippi LGBT Community

By Adam Polaski • June 22, 2017 • 12:06 pm

Today, June 22, a three-judge panel from the U.S. Fifth Court of Appeals ruled in Barber v. Bryant (plaintiffs represented by lead attorney Rob McDuff and Lambda Legal) and Campaign for Southern Equality v. Bryant (III) (brought by the Campaign for Southern Equality and lead attorney Roberta Kaplan). The cases center on Mississippi’s HB 1523, the nation’s most sweeping anti-LGBT religious exemption law.

The three-judge panel today found that the plaintiffs in the case lack legal standing to officially challenge the law and that the lower court ruling, a stunning and powerful rebuke to anti-LGBT religious exemptions, should be reversed and the case dismissed for lack of jurisdiction. Read the order at Equality Case Files.

The 5th Circuit panel heard oral argument in the case in April, marking the first time any federal appellate court in the country has heard arguments on an anti-LGBT state law since January 2015, when the 5th Circuit heard argument in cases seeking the freedom to marry out of Texas, Louisiana, and Mississippi, including a case brought by the Campaign for Southern Equality. The three-judge panel consisted of Judge Elrod, Judge Smith, and Judge Haynes.

The court wrote today:

“Under this current record, 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 that satisfies the “irreducible constitutional minimum of standing,” but the federal courts must withhold judgment unless and until that plaintiff comes forward.”

The decision flies in the face of the fact that HB1523, if it were to take effect, would cause deep and lasting harm to Mississippi’s LGBT community.

Remember the sweeping impact of HB1523: 

It allows public employees, service providers, and business owners in Mississippi to deny treatment, services, and goods to LGBT individuals on the basis of three specific religious beliefs:

  1. that marriage can only be between a man and a woman;
  2. that sexual intercourse is properly reserved to such a marriage; and
  3. that sex is an immutable characteristic that is assigned at birth and cannot change.

In effect, the law allows people to cite these three specific beliefs (opposing marriage for same-sex couples, objecting to sex outside of any marriage, and denying the very existence of transgender people) as an excuse for discrimination. Read more about HB1523 here.

HB1523 would have very real consequences for these Mississippians – and it would set a terrible example for every other state in the country. Mississippi is home to 60,000 LGBT adults and an estimated 11,400 transgender youth and adults, according to 2016 data published by the Williams Institute at the U.C.L.A. School of Law. The state is also home to 3,500 same-sex couples, 29 percent of whom are raising children—the highest rate in the nation.

The true impact of HB1523 is far-reaching and extreme. The law prohibits the state from intervening to protect the best interests of gay or transgender children in the care of adults who may hold one or more of these religious beliefs. And it not only allows private citizens to refuse to provide counseling and psychological treatment on the basis of the three specific religious beliefs in clear violation of professional ethical guidelines—it also permits state employees, including public school guidance counselors, to turn away students desperately in need of support.

History of HB1523 in Mississippi: 

HB1523 was signed into law by Governor Phil Bryant after advancing through the Mississippi House and Senate. It passed less than one year after the freedom to marry became law in Mississippi and in the same legislative session where dozens of states considered proposals that would have singled out transgender people for discrimination.

On June 30, 2016, minutes before HB1523 was set to take effect, U.S. District Court Judge Carlton Reeves struck down the law as unconstitutional and enjoined its enforcement.

In his ruling, Judge Reeves wrote: “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But HB1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.” Read the full ruling here. The state of Mississippi appealed the ruling to the U.S. Court of Appeals for the 5th Circuit.

A Majority of Americans Oppose Laws Allowing Businesses to Discriminate Against LGBT People

Since the moment it was proposed, LGBT people across Mississippi have spoken out against HB1523, as have other civil rights advocates and people of faith.

The majority of Americans as a whole also oppose religious refusal laws like HB1523. A March 2017 poll from the Public Religion Research Institute found that 64% of Americans oppose laws allowing businesses the ability to cite their religious beliefs as an excuse for discrimination. Opposition to these discriminatory laws cuts across almost every religious group – including 64% of White mainline Protestants, 68% of Catholics, 73% of Black Protestants, and 79% of non-Christian religions.

Businesses, sports teams, and chambers of commerce have overwhelmingly spoken out against religious refusal laws like HB1523. Last year, following Governor Bryant signing HB1523 into law, many businesses expressed strong opposition to the law, including the Mississippi Chamber of Commerce, the Mississippi Manufacturers Association, Levi Strauss & Co., Nissan, MGM Resorts International, Toyota, and Tyson Foods International.


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