Full Fifth Circuit Denies Challenge to Anti-LGBT Mississippi Law

Full Fifth Circuit Denies Challenge to Anti-LGBT Mississippi Law

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Plaintiffs in the Barber v. Bryant case
Plaintiffs in the Barber v. Bryant case

Mississippi civil rights attorney Rob McDuff, along with Mississippi Center for Justice and Lambda Legal, Monday announced they will appeal to the U.S. Supreme Court after the U.S. Court of Appeals for the Fifth Circuit denied their en banc petition asking the full court to rehear the case challenging Mississippi House Bill 1523, one of the most anti-LGBT laws in the country.

Joining them for the appeal to the Supreme Court are former U.S. Solicitor General Don Verrilli and attorney Paul Smith, who co-counseled with Lambda and argued the landmark case of Lawrence v. Texas, which declared laws criminalizing same-sex relationships to be unconstitutional.

“We are appealing to our nation’s highest court to make sure that attempts by state legislatures to defy the law of the land and trample the rights of LGBT people are blocked for good,” said Susan Sommer, Director of Constitutional Litigation at Lambda Legal. “Mississippi’s HB 1523 creates a toxic environment of fear and prejudice. Along with other anti-LGBT laws across the country like those in North Carolina and Texas, these laws are a pack of wolves in sheep’s clothing, dressing up discrimination and calling it religious freedom.”

“This is an unfair and unconstitutional law, and we are taking our claim to the Supreme Court,” said Mississippi civil rights attorney McDuff. “People should not have to live through discrimination in order to challenge it.”

“We are heading to the Supreme Court to demand access to justice. LGBT Mississippians should not have to endure even more profound discrimination before they can ask the court to put a stop to it,” said Beth Orlansky, advocacy director for the Mississippi Center for Justice. “Our plaintiffs have already seen the ill effects of HB 1523 without it even taking effect and they should get their day in court.”

HB 1523 sets forth a list of discriminatory actions that certain individuals and entities could take against Mississippians based on religious and so-called “moral” objections to the existence of transgender people, marriages of same-sex couples and non-marital sexual relationships, without consequence from the State. The law was enacted in April 2016 in defiance of the U.S. Supreme Court’s decision granting marriage for same-sex couples nationwide. Last June, U.S. District Court Judge Carlton Reeves of Jackson issued a preliminary injunction preventing HB 1523 from taking effect. Overruling the lower court decision, a three-judge panel of the Fifth Circuit on June 22, 2017 reversed the injunction blocking the law and held that the plaintiffs lack standing because they cannot claim a specific harm caused by the law that has yet to go into effect.

On July 6, plaintiffs petitioned the full Fifth Circuit to rehear the case and on Friday, the Court denied that request, with two judges dissenting.  In his dissenting opinion, Circuit Judge James Dennis castigated the Fifth Circuit for “abdicat[ing] its mandate to decide the substantive claims raised by the plaintiffs.”  His opinion explains how the June 22nd panel decision “falls into grievous error, unjustifiably creates a split [in the] circuits, and rejects pertinent Supreme Court teachings,” denying Mississippi residents “a forum in which to challenge the evils against which the Establishment Clause was designed to protect.’”  This split in the circuits creates strong grounds for Supreme Court review.

The 12 individuals and the church that are plaintiffs in Barber v. Bryant are a cross-section of Mississippians  harmed by HB 1523 – clergy, LGBT residents, community leaders, and activists. The lawsuit argues that HB 1523 violates the Establishment and Equal Protection Clauses of the U.S. Constitution.

Background

Advocates filed two lawsuits arguing HB 1523 violated the U.S. Constitution – Barber v. Bryant, brought by McDuff and the Mississippi Center for Justice on behalf of 12 individual plaintiffs and the Joshua Generation Metropolitan Community Church, and Campaign for Southern Equality (CSE) v. Bryant, brought by attorney Roberta Kaplan on behalf of CSE and one individual plaintiff. The two cases were consolidated for the preliminary injunction proceedings before U.S. District Court Judge Carlton W. Reeves, who agreed with the plaintiffs’ arguments and blocked HB 1523 from taking effect. Lambda Legal joined as co-counsel for the Barber plaintiffs on appeal.

The plaintiffs in Barber v. Bryant include longtime civil rights advocates Rims Barber and Carol Burnett, who are ordained ministers; retired Millsaps Chaplain Don Fortenberry, also an ordained minister; the Joshua Generation Metropolitan Community Church in Hattiesburg, its Pastor Brandiilyne Magnum-Dear, and its Director of Worship Susan Magnum; Mississippi NAACP President Derrick Johnson; Founding Director Susan Glisson of the Winter Institute at the University of Mississippi;  longtime therapist and activist Joan Bailey, and community activists Dorothy Triplett, Renick Taylor, and Anthony Laine Boyette.

Read the Frequently Asked Questions on HB 1523.

Susan Sommer, Director of Constitutional Litigation, and Beth Littrell, Counsel, are handling the case for Lambda Legal, joining Robert McDuff of Law Offices of Robert McDuff; and Beth L. Orlansky of the Mississippi Center for Justice.   Donald B. Verrilli, Jr., Ginger Anders and Adele El-Khoury of Munger, Tolles & Olson, LLP, and Paul Smith are joining as counsel for the Supreme Court appeal.

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