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Legal Advocates Urge Full Fifth Circuit to Rehear Case Challenging Anti-LGBT Mississippi Law

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July 6, 2017
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Lambda Legal client Rims Barber

Lambda Legal along with Mississippi civil rights attorney Rob McDuff and the Mississippi Center for Justice today filed a petition seeking rehearing en banc by the full U.S. Court of Appeals for the Fifth Circuit after a three-judge panel reversed the injunction against Mississippi House Bill 1523, the discriminatory anti-LGBT legislation challenged in Barber v. Bryant.

“The panel’s decision to reverse the district court ruling begs the question of who gets to challenge laws in court and when. LGBT Mississippians should not have to endure even more profound discrimination before they can ask the court for help,” said Susan Sommer, Director of Constitutional Litigation at Lambda Legal.

“Mississippi’s HB 1523 is an extreme discrimination law dressed up in religious clothes," Sommer added. "The wave of anti-LGBT laws like it in state houses around the country, including North Carolina and Texas, comes in defiance of the Supreme Court’s ruling for marriage equality and hard-won rights for transgender people. The Supreme Court’s ruling in Obergefell, reaffirmed just last week in Pavan v. Smith, means that same-sex couples are entitled to full marriage rights, not the half-baked rights on offer under HB 1523.”

“Standing is not about who wins and who loses, but who has access to justice,” 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.”

“We will continue to fight this bill as long as it takes,” said McDuff. “It bestows special rights on people who hold certain religious views and not on people who hold other religious views, and it encourages discrimination against LBGT Mississippians, who have as much right to be here as anybody else. It is unfair and unconstitutional and nothing about the panel’s decision regarding the doctrine of standing changes that.”

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 held that LGBT Mississippians are not subjected to imminent discrimination by HB 1523. The panel 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.

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.

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’ argument and blocked HB 1523 from taking effect. Lambda Legal joined as co-counsel for the Barber plaintiffs on appeal.