Mississippi plaintiffs led by civil rights attorney Rob McDuff, along with Mississippi Center for Justice and Lambda Legal, Tuesday urged the U.S. Supreme Court to strike down Mississippi House Bill 1523, the discriminatory anti-LGBT legislation that takes effect Tuesday. Joining in the appeal to the Supreme Court are former U.S. Solicitor General Don Verrilli and attorney Paul Smith, who co-counseled with Lambda Legal and argued the landmark case of Lawrence v. Texas, which declared laws criminalizing same-sex relationships to be unconstitutional. The petition seeks a nationwide ruling on the standing of individuals to challenge state laws that permit and fuel anti-LGBT discrimination on religious grounds.
“Just like the antigay constitutional amendments enacted in states after Lambda Legal’s victory in Lawrence v. Texas striking down sodomy laws, statutes like Mississippi’s HB 1523 are springing up across the country to defy the Supreme Court’s 2015 ruling for marriage equality,” said Susan Sommer, director of constitutional litigation and associate legal director at Lambda Legal. “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. 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.”
“We are asking the Supreme Court to review this case because it is unfair and unconstitutional. These laws are wolves in sheep’s clothing—it is LGBT discrimination disguised as religious freedom. By promoting discrimination in the name of religion, HB 1523 violates both the First and the Fourteenth Amendments,” said Mississippi civil rights attorney Rob McDuff.
“Standing is not about who wins and who loses, but who has access to justice. HB1523 goes into effect today, but our clients have been experiencing the ill effects of the law since it passed.,” said Beth Orlansky, advocacy director for the Mississippi Center for Justice. “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.”
HB 1523 establishes 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 had yet to go into effect. A subsequent petition asking the full Fifth Circuit to rehear the case was denied, prompting a strong dissent arguing that the original Fifth Circuit ruling, “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 lawsuit argues that HB 1523 violates the Establishment and Equal Protection Clauses of the U.S. Constitution.
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 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.
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.