BY CHRIS JOHNSON, WASHINGTON BLADE
The U.S. Fifth Circuit Court of Appeals has lifted a court order against a “religious freedom” law in Mississippi that would enable sweeping anti-LGBT discrimination, citing a lack of standing for plaintiffs in litigation against the statute.
Writing for a unanimous three-judge panel, U.S. Circuit Judge Jerry Smith issued a decision allowing HB 1523, which has been enjoined as a result of a lower court order, to go into effect and denied plaintiffs suffered injury as a result of the state violating the Establishment Clause.
“The Governor of Mississippi and the Executive Director of the Mississippi Department of Human Services appeal a preliminary injunction,” Smith writes. “Because the plaintiffs do not have standing, we reverse the injunction and render a judgment of dismissal.”
Smith denies assertions of injury from plaintiffs, who alleged the Mississippi law violates the Establishment Clause because it takes into account only certain religions views on LGBT people.
“The Establishment Clause is no exception to the requirement of standing,” Smith said. “It is not enough simply to argue that there has been some violation of the Establishment Clause; The plaintiffs claim they have suffered a stigmatic injury from the statute’s endorsement of the Section 2 beliefs. That stigma can be a cognizable Establishment Clause injury, but even such stigmatic injury must be concrete and particularized.”
Smith maintains he and his fellow judges “do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact” compelling the judiciary to overturn the law, but for the time being that condition isn’t satisfied.
The three-judge panel who issued the decision consists of Smith, a Reagan appointee; U.S. Circuit Judge Jennifer Elrod, a George W. Bush appointee; and U.S. Circuit Judge Catharina Haynes, another George W. Bush appointee.
Signed by Gov. Phil Bryant last year, HB 1523 enables individuals and businesses to discriminate against LGBT people in the name of “religious freedom.”
The law prohibits the state from taking action against religious organizations that decline employment, housing or services to same-sex couples; families who’ve adopted a foster child and wish to act in opposition to same-sex marriage; and individuals who offer wedding services and decline to facilitate a same-sex wedding.
Additionally, the bill allows individuals working in medical services to decline to afford a transgender person gender reassignment surgery. The bill also allows state government employees who facilitate marriages the option to opt out of issuing licenses to same-sex couples, but the person must issue prior written notice to the state government and a clerk’s office must not delay in the issuing of licenses.
As a result of consolidated lawsuits — one filed by the Campaign for Southern Equality, the other by the Joshua Generation Metropolitan Community Church and 13 Mississippi ministers — U.S. District Judge Carlton Reeves, an Obama appointee, issued a preliminary injunction in July against the law on the basis it violates the Establishment Clause, barring enforcement on the day the law would’ve taken effect.
Roberta Kaplan, lead counsel for the plaintiffs in Campaign for Southern Equality case and attorney who successfully argued against the Defense of Marriage Act before the Supreme Court, said in a statement she plans to seek “en banc” review of the three-judge panel decision before the full Fifth Circuit.
“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,” Kaplan said. “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.”
According to the Campaign for Southern Equality, HB 1523 won’t go into effect until the Fifth Circuit issues its mandate for the three-judge panel’s decision. If the 5th Circuit agrees to hear this case “en banc,” the preliminary injunction will remain in effect until the full court rules.
No state law exists in Mississippi that would bar discrimination against LGBT people if not for the “religious freedom” statute. However, the “religious freedom” law could undermine municipalities and state universities that have or would seek to enact discrimination policies against anti-LGBT discrimination.
Federal laws against sex discrimination, which a growing number of courts have interpreted to apply to LGBT people, would also still have effect in Mississippi. Those laws include Title VI of the Civil Rights Act of 1964, which bars employment discrimination, and Title IX of the Education Amendments of 1972, which bars discrimination in schools.
Rob Hill, the Human Rights Campaign’s Mississippi state director, expressed disappointment in a statement over the decision, which he said will “clear the path for the anti-LGBTQ law HB 1523 to take effect in Mississippi.”
“This law – now the most discriminatory, anti-LGBTQ state law in the country — was rooted in hate, it targets the LGBTQ community and it is a deliberate attempt to undermine marriage equality and the dignity of LGBTQ Mississippians who lawmakers have sworn to serve and protect,” Hill said. “We will continue to fight tooth and nail against HB 1523 until it no longer threatens our community.”