Circuit Court Judge Jerry E. Smith. | FIFTH CIRCUIT COURT OF APPEALS
A three-judge panel of the Houston-based Fifth Circuit Court of Appeals dissolved a preliminary injunction and dismissed two lawsuits challenging the constitutionality of a Mississippi law that protects people acting on anti-LGBTQ views from adverse action by state and local governments there.
On June 30 of last year, US District Judge Carlton Reeves, finding that the plaintiffs were likely to prevail on their claim that H.B. 1523 violated their equal protection rights as well as the constitutional prohibition on establishment of religion, issued a preliminary injunction. That kept the law from taking effect on July 1, 2016, as it was due to.
Ruling last week, on June 22, the panel found that none of the plaintiffs had standing to bring a challenge because, in the court’s opinion, none had suffered an individualized injury.
Ruling against plaintiffs’ standing, not on the merits, panel still suggests establishment of religion objection wouldn’t fly
The appellate panel was careful to state that, because the plaintiffs’ lack of standing deprived them of jurisdiction over the case, the three judges were not expressing an opinion about whether the law was constitutional.
The plaintiffs’ attorneys from the two cases announced they would seek “en banc” review by the full Fifth Circuit bench and, failing that, would petition the Supreme Court.
The Fifth Circuit is a notably conservative bench, however, with only four of the 14 active judges having been appointed by Democratic presidents. The three-judge panel that issued this decision consisted entirely of Republican appointees.
H.B. 1523 specifically protects three “religious beliefs or moral convictions” held by people for which they cannot suffer any “discriminatory” action by the state — including adverse tax rulings, benefits eligibility, employment decisions, imposition of fines, or denial of occupational licenses. Those beliefs are that “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
The law authorizes people with claims they have suffered adverse action based on their having one of those three beliefs to sue state officials.
H.B. 1523 also specifically protects religious organizations in discriminating against LGBTQ people in employment, housing, child placement, and marriages, and protects parents who decide to “raise their foster or adoptive children in accordance” with one of the three listed beliefs. Businesses that provide wedding services are protected against liability for denying such services to LGBTQ people, as are medical and mental health care providers, except in emergency medical situations (and a health care provider cannot interfere with visitation by a patient’s designated representative, who may be a same-sex partner or spouse).
State agencies that license professionals may not refuse to license somebody because they hold or articulate one of the three listed anti-LGBTQ beliefs.
The statute also specifically protects “any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms,” as well as state employees who want to voice the beliefs listed in the statute. It also allows county clerks and judges to refuse services to same-sex couples seeking to marry, as long as arrangements are made through another public employee to allow such marriages to take place without delay.
The law, then, clearly aims at providing “special rights” to people claiming a religious or moral basis for discriminating against LGBTQ people and same-sex couples. Given that Mississippi law does nothing to protect the civil rights of LGBTQ people anyway, many of this statute’s provisions are more symbolic than real. Even before its enactment, a Mississippi landlord faced no state law penalty for refusing to rent to a same-sex couple, for example, and businesses in that state were free to deny goods or services to people who are gay or transgender without incurring penalty.
Few local governments in Mississippi have adopted laws that would be affected either, although some educational institutions would clearly be impacted, especially by the facilities access provision.
In the eyes of the appeals court, the plaintiffs had not articulated the kind of particularized injury that would give them standing to sue the state in federal court before the law had even taken effect. The plaintiffs’ suits relied heavily on the argument that the law imposes a stigma, signaling second-class citizenship, and seeks to enshrine by statute particular religious views.
The court rejected these arguments as insufficient to establish standing.
The plaintiffs pointed to cases in which courts had ruled that plaintiffs offended by government-sponsored religious displays could challenge them under the First Amendment in federal court, but Judge Jerry E. Smith, writing for the panel, rejected this analogy.
The court found that by protecting both “religious beliefs and moral convictions,” the Legislature had avoided privileging religion, since persons whose anti-gay beliefs were not religiously-motivated would be protected from adverse government treatment under this act. An atheist who believes same-sex marriage is wrong or that gender is immutable would be protected, even if these beliefs had no religious basis.
Similarly, the court rejected the plaintiffs’ standing as taxpayers, finding that H.B. 1523 did not authorize expenditures in support of religion.
One plaintiff who based his standing on his intention to marry in the future was rejected by the court, which pointed out that he did not specify when or where he intended to marry.
“He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi,” wrote Judge Smith.
The court made clear that if anybody actually suffers a concrete injury after the law goes into effect, they could file a new lawsuit and raise their challenge.
