On Friday, the judges of the 5th U.S. Circuit Court of Appeals refused to reconsider a panel decision holding that challengers to HB 1523 do not have standing to challenge the measure in court. Two judges issued a fierce dissent asserting that the 5thCircuit had “abdicated its mandate to decide the substantive claims raised by the plaintiffs.” These plaintiffs will now ask the Supreme Court to rule that they have standing to contest HB 1523’s constitutionality. Former U.S. Solicitor General Don Verrilli and Paul Smith, a renowned Supreme Court litigator, will join the appeal.
Mississippi passed HB 1523 as a direct response to Obergefell v. Hodges in an effort to stymie LGBTQ equality in the state. The law singles out three religious beliefs for heightened protection: The belief that marriage is between a man and a woman; that sexual relations outside of a heterosexual marriage are improper; and that a person’s gender must always be the sex they were assigned at birth. Individuals who hold these three beliefs get special rights laid out in the statute. Doctors, employers, businesses, landlords, schools, and adoption agencies (including state-funded ones) are expressly licensed to discriminate against LGBTQ people if their religion compels it. No other religious convictions receive extra protection under the law.
By elevating three beliefs over all others, HB 1523 would seem to violate the neutrality principle at the heart of the First Amendment’s Establishment Clause. The measure favors a few religious beliefs over others, effectively endorsing a specific sect of Christianity. As the Supreme Court has explained, the government runs afoul of the Establishment Clause when it endorses religion in this manner by sending “a message … [to] nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
If the Supreme Court denies review, HB 1523 will finally take effect, and LGBTQ Mississippians will face more concrete harm—denial of a marriage license, refusal of service or medical treatment, and so on. Read more via Slate