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Mississippi Calls on 5th Cir. to Intervene in 'Religious Liberty' Dispute

By Casey C. Sullivan, Esq. on July 29, 2016 | Last updated on March 21, 2019

Mississippi's governor and its executive director of the state's Department of Human Services are asking the Fifth Circuit to stay a federal court's preliminary injunction against the state's Religious Liberty Accommodations Act, known as HB 1523. That law seeks to protect opponents of gay marriage in both public and private services, who take actions "based upon or in a manner consistent with a sincerely held religious belief or moral conviction."

Judge Carlton W. Reeves blocked the law just moments before it would have gone into effect on July 1st. "There are almost endless explanations for how HB 1523 condones discrimination against the LGBT community, but in its simplest terms it denies LGBT citizens equal protection under the law," Judge Reeves wrote. Afterword, the Mississippi attorney general refused to appeal that ruling. Now the governor and human services director are stepping into his place.

HB 1523's Initial Defeat and AG's Refusal to Appeal

HB 1523 is one of many controversial 'religious freedom' bills that have proliferated following the Supreme Court's legalization of same-sex marriage last summer. According to supporters, HB 1523 is meant to protect the religious liberty of those who believe that marriage is between one man and one woman. (The law is not limited to gay marriage, however. It also seeks to protect beliefs opposed to premarital sex and transgender individuals.) HB 1523 would prevent the state from taking "discriminatory action" against a wide range of individuals who took action based on those beliefs in a wide range of public and private services.

U.S. District Court Judge Carlton W. Reeves issued a preliminary injunction halting the implementation of the law at 11:23 pm on June 30th, just minutes before it would have gone into effect. Following that ruling, Mississippi Attorney General Jim Hood announced that he would not pursue an appeal, saying "I am convinced that continuing this divisive and expensive litigation is not in the best interest of the state of Mississippi or the taxpayers."

The Ball Is in the Fifth Circuit's Court Now

However, the state's governor, Phil Bryant, and John Davis, the executive director of the Mississippi Department of Human Services, still want to see the bill vindicated in appellate court. Earlier this month, they filed a motion to stay the injunction against HB 1523. They argue that the last-minute nature of the PI denied the state the opportunity to seek appellate review and object to the district court's conclusion that HB 1523 violated the Establishment Clause and could not survive even rational basis review.

The plaintiffs who had successfully challenged the law filed their response this Monday. Although Obergefell, the Supreme Court case legalizing gay marriage nationwide, "was decided over a year ago," they write, "neither the Governor in his motion for stay, nor anyone else during the course of this litigation or the floor debates on the bill, has pointed to a single instance" of the state "discriminating" against opponents of gay marriage. Further, given that HB 1523 "is a highly unusual statute," they argue, a preliminary injunction appropriately preserves the status quo while the law's constitutionality is fully litigated.

It's now up to the Fifth to determine whether to grant the case expedited consideration.

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