Supreme Court – Photo: Todd Franson
The challengers to Mississippi’s anti-LGBTQ “religious freedom” law are asking the Supreme Court to determine whether the law is unconstitutional.
At issue is the question of whether the plaintiffs in the case, and, more broadly, individuals anywhere in the country, have standing to challenge state laws that permit and fuel anti-LGBTQ discrimination on religious grounds.
Despite a federal judge ruling that the law’s provisions violated both the First and Fourteenth Amendments of the U.S. Constitution, the conservative 5th U.S. Circuit of Appeals dismissed the lawsuit, arguing that the plaintiffs lacked standing because they had not suffered harm from a law that had yet to go into effect.
The law’s provisions officially went into effect on Tuesday, giving businesses, including major corporations, and individuals to refuse goods and services to LGBTQ people and others based on an individual’s religious beliefs opposing homosexuality, transgenderism, and premarital or extramarital sex.
“Standing is not about who wins and who loses, but who has access to justice,” Beth Orlansky, advocacy director for the Mississippi Center for Justice, said in a statement. “Our clients have been experiencing the ill effects of the law since is passed. The 5th 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.”
In their petition, the plaintiffs pose two questions that they believe the Supreme Court should resolve: whether any individual can challenge a “religious freedom” law as endorsing specific religious beliefs, thereby violating the Establishment Clause of the First Amendment, or whether, as the 5th Circuit contends, any religious endorsement must be in the form of a religious display that people can physically encounter.
The petition reads:
“The [5th Circuit’s] decision is wrong on the merits; it conflicts with the decision of other courts of appeals; and it has staggering implications. 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.
“The court’s decision is sure to embolden other state legislatures that wish to express their disagreement with Obergefell [the Supreme Court’s decision legalizing marriage equality] in religious terms. Numerous measures similar to HB 1523 have already been introduced in state legislatures around the country. This Court’s review is warranted to correct the court of appeals’ insupportable holdings and to protect the promise of Obergefell.
“If anything, HB 1523 inflicts a much more concrete injury than any religious display. 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. By endorsing its preferred religious beliefs in a statute, the State left no ambiguity about its position: it believes that religious opposition to marriage between same-sex spouses, and the other Section 2 beliefs, should be privileged under state law, while opposing views should not.”
The plaintiffs also ask the high court to resolve whether laws like HB 1523 can be challenged under the Equal Protection Clause of the Fourteenth Amendment.
“The court of appeals’ conclusion that petitioners lack standing to bring their equal-protection claim also warrants review,” they argue. “The court wrongly held that HB 1523 sends only a ‘discriminatory message.’ To the contrary, the statute establishes an unequal legal regime…permitting [discrimination] against LGBT individuals with impunity.”
“That disparate treatment demeans and stigmatizes petitioners and relegates them to second-class status. HB 1523 also pre-empts anti-discrimination ordinances that previously protected LGBT individuals, and limits the scope of any similar ordinances enacted in the future.”
Rob McDuff, the head lawyer for the plaintiffs, called laws like HB 1523 “wolves in sheep’s clothing,” arguing that the high court should find the law unconstitutional. Lambda Legal, which is also involved in the case, issued its own statement expressing hope that the Supreme Court will not allow the erosion of LGBTQ rights.
“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, the director of constitutional litigation and associate legal director at Lambda Legal.
He added: “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.”