John Minor Wisdom Courthouse, home of the 5th U.S. Circuit Court of Appeals – Photo: Bobak Ha’Eri, via Wikimedia.
The U.S. 5th Circuit Court of Appeals heard oral arguments in the case of Barber v. Bryant, a challenge to Mississippi’s so-called “religious freedom” law, HB 1523.
The law, passed in response to the Supreme Court’s decision legalizing marriage equality nationwide, allows people who hold a specific set of “sincerely held religious beliefs” opposing same-sex marriage, homosexuality, and transgenderism to refuse goods or services to LGBTQ people, same-sex couples, or those of any orientation who engage in extramarital sex.
Rob McDuff, an attorney with the Jackson, Miss.-based law firm McDuff & Byrd, argued in favor of the 12 plaintiffs challenging the law, which was blocked from going into effect by U.S. District Judge Carlton Reeves, who found the law is unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution. Lawyers for the state subsequently appealed Reeves’ decision to the 5th Circuit.
In his arguments for striking down HB 1523, McDuff argued that the law does violate the Establishment Clause of the First Amendment by endorsing a very specific set of beliefs that are not held by all religious people, or even people within the same religious background. He also argued the law violates the Equal Protection Clause of the Fourteenth Amendment by targeting LGBTQ people for disparate treatment based on personal opposition or animus toward homosexuality or same-sex marriage.
“The law itself is an endorsement of certain religious beliefs, over all others,” says McDuff. “It sets up a scheme of unequal rights under the law, where only the believers of the creed set up in the bill have special rights, and those rights allow them to discriminate.”
The law’s defenders have argued that because many different faiths oppose same-sex marriage and homosexuality, it does not favor one religious belief over another. But McDuff rejects that attempt to justify the bill.
“The fact that the beliefs are shared by people in different religions, and opposed by people in different religions, is not what’s important here,” he says. “The law itself labels them as ‘sincerely held religious beliefs,’ and provides special protections to those who hold them, and not to those who don’t. So it’s clearly an establishment of religion.”
McDuff says the three-judge panel listening to oral arguments seemed particularly concerned about standing, and whether the law needed to go into effect, with the plaintiffs suffering injury or irreparable harm, before being allowed to sue over the law.
“The judges questioned whether the plaintiffs needed to suffer some form of discrimination before they could bring the suit, and, of course, we took the position that they shouldn’t have to, because the inequality and the endorsement of religion, is built into the law itself,” he says. “And let me add this: if we do lose before these three judges, there are additional levels of appeals we can take. And we can also take the opportunity to build up the case further to show the likelihood of injury to individual players, if that becomes necessary.”
Susan Sommer, the director of constitutional litigation at Lambda Legal, which is also representing the plaintiffs in the case, along with the Mississippi Center for Justice, said in a statement that the law should not be allowed to take effect, as it would only lead to further discrimination against LGBTQ people and same-sex couples, as well as those religious clergy from faith traditions not vehemently opposed to homosexuality. Sommer urged the court to uphold Reeves’ injunction of the law.
“One of the most aggressive and sweeping anti-LGBT measures in the nation, HB 1523 doesn’t even try to mask its explicit attempt to legalize LGBT discrimination and segregation,” Sommer said. “It is an attack on same-sex couples and transgender people, made in the name of religious and ‘moral’ beliefs. … We are hopeful the Court will see this law for what it is — a green light for discrimination — and continue to block HB 1523 from taking effect.”