BY CHRIS JOHNSON, WASHINGTON BLADE
A federal appeals court announced Friday it wouldn't reconsider a ruling upholding a sweeping anti-LGBT "religious freedom" law in Mississippi — although one judge has penned a stinging dissent over the refusal.
The U.S. Fifth Circuit Court of Appeals refused to reconsider the ruling issued in June by a three-judge panel on the court upholding the law. The panel found the plaintiffs in the consolidated cases — one filed by Campaign for Southern Equality, the other by the Joshua Generation Metropolitan Community Church and 13 Mississippi ministers — lack standing to challenge on the basis it violated the Establishment Clause under the First Amendment.
The recorded vote against a rehearing of the decision was 12-2. Among those who dissented was U.S. Circuit Judge James Dennis, a Clinton appointee who said "the court has abdicated its mandate to decide the substantive claims raised by the plaintiffs."
"Respectfully, the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents," Dennis writes. "The panel opinion misconstrues and misapplies the Establishment Clause precedent, and…its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing."
Even though plaintiffs aren't challenging a religious display set up by a government actor, which is sometimes forms the basis for Establishment Clause lawsuits, Dennis writes under the anti-LGBT law "the stigmatic harm suffered by non-adherents is sufficient to establish an injury-in-fact."
"Because the plaintiffs in this case have alleged such a stigmatic harm, the panel opinion's dismissal of this case is in error and should have been reversed by the court en banc," Dennis writes.
Cited by the court as an example of similar case was the Fourth Circuit decision this year in International Refugee Assistance Project v. Trump, which found a Muslim lawful permanent resident of the United States had standing under the Establishment Clause to challenge a President Trump's order banning immigration from six Muslim-majority countries.
"The panel opinion here states that IRAP is distinguishable because the Executive Order at issue in that case would have barred the plaintiff's wife from entering the country and thereby prolonged their separation," Dennis writes. "But while the Fourth Circuit did recognize this effect as an injury sufficient to support standing, it also recognized as a 'distinct' injury the fact that the Executive Order 'sends a state-sanctioned message condemning his religion and causing him to feel excluded and marginalized in his community.'"
As a result of denying standing to plaintiffs in the lawsuit challenging Mississippi's "religious freedom" law, Dennis writes the Fifth Circuit panel "falls into grievous error, unjustifiably creates a split from our sister circuits, and rejects pertinent Supreme Court teachings."
Joining Dennis in the dissent was U.S. Circuit Judge James Graves, an Obama appointee.
As a result of the Fifth Circuit decision, the Mississippi "religious freedom" law will go into effect. The measure, signed by Gov. Phil Bryant last year, enables sweeping discrimination against LGBT people.
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.
There's one more path in the courts for opponents of the law. Plaintiffs have the option of filing a petition of certiorari before the U.S. Supreme Court seeking review of the decision.
Robert McDuff, the Jackson, Miss.-based attorney representing plaintiff minsters in the Barber, affirmed "we do" intend to seek review of the decision before the Supreme Court.
