What You Need to Know About Mississippi’s HB1523, Considered by 5th Circuit Today

By Adam Polaski • April 3, 2017 • 12:57 pm

Editors’ Note: This post was originally published by our friends at the Campaign for Southern Equality, plaintiffs in this important case currently before the 5th Circuit Court of Appeals. Read their post here.

On April 3rd, a three-judge panel from the U.S. Fifth Court of Appeals in Lubbock, Texas will hear arguments on Mississippi’s HB 1523, the nation’s most sweeping anti-LGBT religious exemption law. The Governor of Mississippi is appealing a U.S. District Court ruling that prevented the law from going into effect on July 1, 2016. The hearing is in two cases – Campaign for Southern Equality v. Bryant (III), brought by the Campaign for Southern Equality and lead attorney Roberta Kaplan, and Barber v. Bryant, with plaintiffs represented by lead attorney Rob McDuff and Lambda Legal.

The 5th Circuit oral argument is 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 considering the case today consists of Judge Elrod, Judge Smith, and Judge Haynes.

What Does HB1523 Do?

HB1523 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.

What’s the History of HB1523?

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.

In May 2016 several lawsuits were filed against HB1523, including Campaign for Southern Equality v. Bryant (III), with Roberta Kaplan serving as lead counsel for the plaintiffs. Previously, Roberta Kaplan served as counsel in Windsor. v United States, which brought down the federal Defense of Marriage Act, which denied federal recognition of legal marriages between same-sex couples. Kaplan also served as counsel in successful lawsuits against Mississippi laws banning same-sex couples from marrying and adopting children.

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. More than a dozen “friend-of-the-court” briefs have been filed in favor of striking down HB1523 as unconstitutional. Read these powerful briefs here.

Who Opposes HB1523?

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.

Millions of people of faith and faith leaders are strong supporters of the freedom to marry and of full equality for transgender people. In 2015 and 2017, respectively, thousands of faith leaders, including those from Mississippi, signed briefs to the U.S. Supreme Court expressing their strong support for full LGBT equality.

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.

Why HB1523 Violates the First Amendment

Plaintiffs in Campaign for Southern Equality v. Bryant (CSE III) argue that HB 1523, by protecting three specific religious beliefs above all others, is unprecedented and violates the First Amendment’s guarantee that government cannot endorse, or establish, religion.

Roberta Kaplan, lead counsel for the plaintiffs, explained the crux of the argument against HB1523. She said:

“The entire point of the religious freedom guaranteed by the First Amendment is to protect the religious beliefs of all Americans, not just the views of some Americans, or even the views of the majority of Americans. By enshrining three specific, anti-gay religious beliefs not held by all religions or religious people in Mississippi law, and by giving  Mississippians who hold those beliefs an absolute exemption from a wide variety of otherwise generally-applicable laws and regulations, HB 1523 flies in the face of this long and cherished constitutional tradition.”

Who Is Harmed by HB1523?

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.

HB1523 would have very real consequences for these Mississippians – and it would set a terrible example for every other state in the country.

Take the story of Rev. Dr. Susan Hrostowski, a plaintiff in Campaign for Southern Equality v. Bryant who currently serves as the vicar of St. Elizabeth’s Episcopal Church in Collins, Mississippi and lives in Forrest County, Mississippi with her wife and their 17-year-old son.

At trial, Rev. Hrostowski testified powerfully that HB 1523 “conveys a message to [her] that the State [of Mississippi] wants to hold certain people, that would be gay men, lesbians, and transgender people, to be less worthy and have less dignity than other human beings,” and that HB 1523 is “the antithesis of the message of Jesus” and the teachings of the Episcopal Church.

Had HB1523 gone into effect, for example, a restaurant manager in Jackson, Mississippi who chooses not to “recognize” the marriage of Rev. Hrostowski and her wife would have been empowered under the law to refuse to seat them together at a table for two on their anniversary, despite the existence of an ordinance in Jackson prohibiting discrimination on the basis of sexual orientation.

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.

Today the Campaign for Southern Equality, Robert McDuff, and Lambda Legal are urging the 5th Circuit Court of Appeals to uphold the federal district court ruling that HB1523 is unconstitutional. 

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