The U.S. Supreme Court won’t take up legal challenges to a Mississippi “religious freedom” law enabling sweeping discrimination against LGBT people, leaving extremely limited recourse to combat the anti-LGBT statute.
In an orders list on Monday, the Supreme Court announced it had rejected two petitions for certiorari — one filed by legal groups in the lawsuit Barber v. Bryant, the other filed by legal groups in Campaign for Southern Equality v. Bryant — as well as a series of other petitions pending before the Supreme Court.
Both petitions sought Supreme Court review of the U.S. Fifth Circuit Court of Appeals decision in favor of the Mississippi anti-LGBT law, which enables businesses and individuals to discriminate in the name of “religious freedom.” The law was signed in 2016 by Mississippi Gov. Phil Bryant, who has vowed to defend the statute against legal challenges in court.
The orders list provides no explanation for the rejections of these petitions, nor the vote by which they were rejected. It takes a vote of at least four justices to grant certiorari, or agree to take up a case.
The law, HB 1523, prohibits the state from taking action against religious organizations that decline employment, housing or services to same-sex couples; families who’ve adopted a foster child and wish to act in opposition to same-sex marriage; and individuals who offer wedding services and decline to facilitate a same-sex wedding.
Additionally, the bill allows individuals working in medical services to decline to afford a transgender person gender reassignment surgery. The bill also allows state government employees who facilitate marriages the option to opt out of issuing licenses to same-sex couples, but the person must issue prior written notice to the state government and a clerk’s office must not delay in the issuing of licenses.
Masen Davis, CEO of the LGBT group Freedom for All Americans, said in a statement the denial of certiorari “is a missed opportunity to swiftly strike down the nation’s most extreme anti-LGBTQ law.”
“The court’s inaction today means that LGBTQ Mississipians will continue to face harassment and discrimination,” Davis said. “HB 1523 fails to honor the tradition of religious freedom in America – instead, it allows people to use religion as a license to discriminate. The LGBTQ community remains in harm’s way every single day that this law is in effect, and we are committed to working with our legal partners to strike this draconian measure once and for all.”
LGBT legal groups filed petitions for certiorari seeking review of the law before the Supreme Court last year after a three-judge panel Fifth Circuit upheld the anti-LGBT law on the basis plaintiffs lacked standing. The full court refused to review that decision in an “en banc” review.
Those decisions overturned a ruling from U.S. District Judge Carlton Reeves, who determined the law violates the Establishment Clause by endorsing a particular religious view on LGBT issues and the Equal Protection Clause by enabling anti-LGBT discrimination.
Both the district court and the appeals court rendered those decisions as a result of a consolidated case of two lawsuits, although the legal groups behind the litigation filed two petitions for certiorari for review separately before the Supreme Court.
Representing plaintiffs in the Barber case — LGBT people, Mississippi ministers and the Joshua Generation Metropolitan Community Church — are Lambda Legal, Mississippi civil rights attorney Rob McDuff and the Mississippi Center for Justice.
Beth Littrell, counsel for Lambda Legal, said the Supreme Court rejection of the petition “is not an endorsement of HB 1523 or the wave of similar discriminatory laws across the country” and doesn’t change rulings in favor of same-sex marriage nationwide.
“Twenty years ago we fought a similar battle in Colorado against an anti-LGBT law that singled out LGBT people for unequal treatment, in Romer v. Evans and we won,” Littrell said. “We will keep fighting in Mississippi until we overturn this harmful law, and in any state where antigay legislators pass laws to roll back LGBT civil rights. Unfortunately, the Supreme Court’s decision today leaves LGBT people in Mississippi in the crosshairs of hate and humiliation, delaying justice and equality.”
Representing the Campaign for Southern Equality in other lawsuit is Roberta Kaplan, the lesbian New York-based founding partner of Kaplan & Company who successfully argued against the anti-gay Defense of Marriage Act before the Supreme Court.
Kaplan said in a statement an additional legal opportunity to challenge may emerge despite the Supreme Court’s action.
“While we are obviously disappointed that the Supreme Court denied cert in our case, the ruling below was based on standing, not the merits so the fight is not over,” Kaplan said. “Every day that HB 1523 remains in effect in Mississippi, we will keep fighting to ensure that this blatantly unconstitutional law is relegated to the dustbin of history.”
The Supreme Court rejects the challenge to the Mississippi anti-LGBT as it considers arguments in the Masterpiece Cakeshop case, which was filed by a Colorado baker asserting a First Amendment right to refuse to make custom-made wedding cakes for same-sex marriages. The court in that case has yet to render a decision, which is expected in June.
Although some issues in the case are similar because the Mississippi law would enable the baker to refuse to make case for a same-sex weddings, the lawsuit against the Mississippi law is different because the law is broader and challenges the law on the basis of the Establishment Clause and Equal Protection Clauses.
Kaplan told the Washington Blade she’s “not in the business of trying to understand or read tea leaves” into the Supreme Court’s actions, but said the denial of cert may be related to consideration of the Masterpiece Cakeshop case.
“They’re specifically different, but they both raise at a very high general level issues about religious freedom and civil rights protections,” Kaplan said.
One narrow opportunity remains for LGBT legal groups to challenge the law in the court. At the district court level, Reeves in October allowed up to five written interrogatories to identify which of the 82 clerk’s offices in Mississippi have sought to recuse themselves from issuing marriage licenses to same-sex couples HB 1523 and the process by which they intend to handle those recusals.
If a Mississippi clerk was found to have recused themselves from issuing marriage licenses or if any such recusal impaired the ability of a same-sex couple to obtain a marriage license, that could form the basis for a new challenge to HB 1523.
Kaplan, however, said the order is more about creating a “uniform system” to allow clerks to opt out of issuing same-sex marriage licenses while ensuring no couple is denied one as required under the law.
“I think a much more greater concern, frankly, is that a couple goes into a clerk’s office somewhere and they make a big deal about the fact that the person who’s supposed to be giving them a license is recusing, and the couple and their family are humiliated, but the law makes it very clear that no county can deny a marriage license to a couple on the basis that their gay,” Kaplan said.
The Mississippi anti-LGBT law took effect on Oct. 10. The Washington Blade wasn’t immediately able to find reports of anti-LGBT discrimination as a result of the law.
Littrell encouraged LGBT people in Mississippi facing discrimination as a result of the law to seek legal recourse.
“The government-approved beliefs outlined by HB 1523 target LGBT Mississippians and leave the state’s most vulnerable in harms way,” Littrell added. “If you are among those targeted for unequal treatment by the state of Mississippi and have experienced discrimination based on HB 1523 or fear that you will be, please contact Lambda Legal’s Help Desk.”