BY CHRIS JOHNSON, WASHINGTON BLADE
On the same day a Mississippi "religious freedom" law enabling anti-LGBT discrimination went into effect, an LGBT legal team litigating against the statute petitioned the Supreme Court to review the decision throwing out their challenge to the law.
In a 43-page filing, the legal team in case of Barber v. Bryant urges the Supreme Court to reverse the U.S. U.S. Fifth Circuit Court of Appeals decision that determined plaintiffs lacked standing to challenge the anti-LGBT on the basis of either the Establishment or the Equal Protections Clauses.
"The court's decision is wrong on the merits; it conflicts with the decision of other courts of appeals; and it has staggering implications," the petition says. "Under the court's reasoning, a state could enact a statute establishing Christianity — or any other religion — as the official religion of the state, and no plaintiff would have standing to challenge that statute."
Representing plaintiffs in the case — LGBT people, Mississippi ministers and the Joshua Generation Metropolitan Community Church — are Lambda Legal, Mississippi civil rights attorney Rob McDuff and the Mississippi Center for Justice.
McDuff said in a statement the legal team is seeking Supreme Court review of the Mississippi anti-LGBT law "because it is unfair and unconstitutional."
"These laws are wolves in sheep's clothing — it is LGBT discrimination disguised as religious freedom," McDuff said. "By promoting discrimination in the name of religion, HB 1523 violates both the First and the Fourteenth Amendments."
Beth Orlansky, advocacy director for the Mississippi Center for Justice, said in a statement the Fifth Circuit's decision is imposing harm on LGBT people in Mississippi.
"Standing is not about who wins and who loses, but who has access to justice," Orlansky said. "HB 1523 goes into effect today, but our clients have been experiencing the ill effects of the law since it passed. The Fifth Circuit's decision is out of step with decisions in many other circuits and we are hopeful that the Supreme Court will grant review and provide clarity on this issue."
The law, House Bill 1523, 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 a transgender person's request for 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 the issuance of licenses.
Last month, the U.S. Fifth Circuit Court of Appeals refused to reconsider "en banc" before the full court an earlier decision by a three-judge panel to throw out the lawsuit. That decision overturned a ruling from a district court that found HB 1523 violated the Establishment Clause.
The petition presents two questions for the Supreme Court: 1) If plaintiffs in the case have standing to challenge the law on the basis that it violates the Establishment Clause; and 2) If plaintiffs have standing to challenge on the basis that it challenges the Equal Protection Clause.
Making the case the anti-LGBT law violates the Establishment Clause, the petition argues the statute amount state-sanctioned discrimination in support of one particular religious views.
"If anything, HB 1523 inflicts a much more concrete injury than any religious display," the petition says. "Enshrining particular religious beliefs in a state statute is the most emphatic endorsement the state can make — it represents the State's official and considered policy, and it is intended to govern all state citizens."
On the issue of whether the law violates the Equal Protection Clause, the petition says the anti-LGBT law "leaves a disfavored group of people with no recourse" if they're denied services under the statute.
"That is the definition of unequal treatment under the law," the petition says. "HB 1523 establishes an unequal legal regime, both creating a favored class of people and allowing them to deny with impunity a range of services to another, disfavored, class of people."
Although the Supreme Court has already agreed to hear a case on "religious freedom" and LGBT rights — the Masterpiece Cakeshop case involving a Colorado baker seeking to deny wedding cakes to same-sex couples — the petition insists consideration of the Mississippi is still necessary.
"[W]hichever way the court rules in Masterpiece Cakeshop, its decision is likely to make the questions presented here even more important, by spurring more state enactments like Mississippi's," the petition says. "If the court rejects the baker's claim and concludes that the challenged application of Colorado's public accommodations law does not violate the First Amendment, states will be more likely to pass laws like HB 1523."
The names of the attorneys on the petition include heavy-hitters joining as co-counsel in the case. Among them is Paul Smith, the D.C.-based attorney who in 2003 successfully argued before the Supreme Court against state bans on same-sex relations in Lawrence v. Texas. Also on the list is Donald Verrilli, a former U.S. solicitor general under the Obama administration assisted in litigation before the Supreme Court seeking marriage equality.
Susan Sommer, director of constitutional litigation and associate legal director at Lambda Legal, compared the Mississippi anti-LGBT law to state bans on sodomy struck down in the 2003 Lawrence v. Texas.
"The Supreme Court again needs to safeguard equality for LGBT Mississippians and LGBT people across the country who are experiencing another dangerous attack on their rights," Sommer said. "We are hopeful that the Supreme Court will grant review and that its ruling will shut down other anti-LGBT state lawmakers emboldened not only by the wave of discriminatory laws like HB 1523, but also by an administration in Washington rolling back LGBT civil rights and providing a roadmap to discriminate."
The Barber case is but one of two legal challenges to the anti-LGBT Mississippi law rejected by the Fifth Circuit. The other was filed by New York attorney Roberta Kaplan on behalf of the Campaign of Southern Equality.
A spokesperson for the Campaign for Southern Equality said the LGBT group intends to follow up with its own petition seeking Supreme Court of the Mississippi anti-LGBT law.
