The Fifth Circuit Court of Appeals lifted an injunction this week blocking Mississippi’s “religious freedom” law, which enshrines bigotry against LGBTQ people into statute.
The case, Campaign for Southern Equality v. Bryant, challenged HB 1523 (also called the “Protecting Freedom of Conscience from Government Discrimination Act”), a law passed in April 2016 that permits decisions about housing, employment, adoption, and wedding ceremonies be made based upon three religiously held tenets: that marriage is the union between a man and a woman, that sexual relations are “properly reserved” for heterosexual marriage, and that gender is determined at birth.
In June of last year, U.S. District Court Judge Carlton Reeves issued an injunction blocking enforcement of the law, ruling that it violated the First and 14th Amendments by allowing individuals, religious organizations, and some government employees with “sincerely held religious beliefs” to deny services to, as he wrote, “lesbian, gay, transgender, and unmarried persons.”
But a three-judge panel of the Fifth Circuit, without considering the merits of the case, said that plaintiffs—a group of ministers and Mississippi residents, including gay and transgender persons who may be negatively affected by the law–have not been personally harmed by the legislation and therefore don’t have standing to challenge it.
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“Under this current record, the plaintiffs have not shown an injury-in-fact”—or personal harm—”caused by HB 1523 that would empower the district court or this court to rule on its constitutionality,” Circuit Judge Jerry E. Smith wrote for the majority.
Plaintiffs argued that their injury-in-fact, which is a prerequisite for standing, was similar to that found in religious display or religious exercise cases. But the Fifth Circuit disagreed.
“A plaintiff has standing to challenge a religious display where his stigmatic injury results from a ‘personal confrontation’ with the display … [as when] a plaintiff personally encounters a religious monument or a religious symbol on their public utility bill,” wrote Smith.
Because a person cannot “confront” statutory text, Smith said, the court could not grant plaintiffs standing on that basis.
Smith likewise rejected plaintiffs’ claim that their case was similar to religious exercise cases—such as those involving invocation of prayer at public high school football games or city council meetings which may violate the Establishment Clause, for example.
“Standing to challenge invocations as violating the Establishment Clause cannot be based solely on injury arising from mere abstract knowledge that invocations were said,” Smith wrote.
“There must be proof in the record that [the plaintiffs] were exposed to, and may thus claim to have been injured by, invocations given at the relevant event.”
Again, because plaintiffs weren’t “exposed” to the statute’s discriminatory text, they could not claim to be injured by it, according to Smith’s logic.
As Mark Joseph Stern points out in Slate, this is nonsensical:
An individual has standing to sue under the Establishment Clause when she encounters a stigmatizing government endorsement of religion. She can challenge the placement of a Ten Commandments monument near the capitol, or a creche in a town hall. She can challenge the inclusion of a religious symbol on a municipal logo, or of a sectarian prayer at a public school’s graduation. But, according to Smith, she cannot challenge a law that endorses a handful of religious beliefs by legalizing discrimination against a specific class of people. Why? Because she did not “personally confront” the “statutory text.
Stern goes on to note that this would lead to incongruous results. If, for example, the statute were printed on a hypothetical plaintiff’s public utility bill or read aloud at a public high school football game, the court would grant that plaintiff standing to sue since the plaintiff would have “personally confronted” the text.
But because the same words exist only in statute form, that same plaintiff doesn’t have standing to sue? That’s illogical.
The court did note that its ruling did not “foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact” that would satisfy the standing requirement, and that “federal courts must withhold judgment unless and until that plaintiff comes forward.”
“This decision is not only deeply upsetting for the rights of LGBT individuals living in Mississippi, but also for the protection of religious liberty in our country,” Roberta Kaplan, lead counsel for the plaintiffs, said in a statement.
“Our clients have already suffered enough. The state communicated a message loudly and clearly with the passage of HB 1523: only certain anti-LGBT beliefs will get the protection and endorsement of the state. Under the logic of this opinion, it would be constitutional for the state of Mississippi to pass a law establishing Southern Baptist as the official state religion,” Kaplan continued.
“We plan to seek an en banc review of the decision by the 5th Circuit,” she added.
If the Fifth Circuit agrees to rehear the case en banc, the injunction will remain in place until the full court issues a ruling.