CSE v. Bryant III (HB 1523 lawsuit in MS)

Current status: On June 30, 2016 Judge Carlton W. Reeves struck down Mississippi’s HB 1523 on First and Fourteenth Amendment grounds. On August 12, 2016 the 5th Circuit Court of Appeals denied a stay request by Governor Phil Bryant. Bryant appealed the case to the 5th Circuit; a three-judge panel ruled that plaintiffs do not have standing in this case on June 22, 2017. Plaintiffs filed a petition for an en banc review by the full 5th Circuit on July 6, 2017, available here.

Background: 

Case Name: Campaign for Southern Equality v. Bryant III

Date Filed: May 10, 2016

What is HB 1523: Passed by the Mississippi legislature in March 2016, HB 1523 – titled the “Protecting Freedom of Conscience from Government Discrimination Act” – is the nation’s most sweeping anti-LGBT law. HB 1523 is so extreme that it enumerates three specific religious beliefs that will be protected above all others: 1. Marriage can only be between a man and a woman, 2. Sexual relations are properly confined to such a marriage, and 3. Sex is an innate characteristic that is assigned at birth and cannot change. The law allows public officials, doctors and others to invoke these specific beliefs as justification for refusing treatment and service to LGBT people.

Plaintiffs: A native of Mississippi, plaintiff Susan Hrostowski is an Episcopal priest and a professor at the University of Southern Mississippi’s School of Social Work. Rev. Hrostowski and her wife, Kathy Garner, have a 16-year-old son, who served as the best man at their wedding. Susan and Kathy were also co-plaintiffs with CSE in a 2015 lawsuit that successfully struck down the Mississippi law banning same-sex couples from adopting. The Campaign for Southern Equality is a plaintiff on behalf of its members in Mississippi.

Legal Team: The legal team is lead by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, joined by colleagues at her firm. Plaintiffs are also represented by Alysson Mills of Fishgood Haywood LLP.  This legal team filed the federal case that struck down Mississippi’s ban on marriage for same-sex couples in 2014, Campaign for Southern Equality v. Bryant, and also struck down Mississippi’s ban on same-sex adoption, Campaign for Southern Equality v. Mississippi Department of Human Services in 2016.

Kaplan in the media scrum

(Roberta Kaplan takes questions from the media after HB 1523 hearing in Jackson.)

Barber v. Bryant: This case is also challenging HB 1523, on both 1st and 14th Amendment grounds. The case is being argued by attorney Robert McDuff and Lambda Legal, representing 12 individual plaintiffs and a church. Learn more here.

Key updates: 

On June 30th, Judge Reeves struck down HB 1523 for violating the First and Fourteenth Amendments to the United States Constitution, ruling in two related cases – Campaign for Southern Equality v. Bryant III and Barber v. Bryant. The full 60-page order from Judge Reeves can be read at: www.southernequality.org/wp-content/uploads/2016/07/CSE-v-Barber-Order.pdf

Judge Reeves found that HB 1523 violates the Establishment Clause of the First Amendment, which requires separation between Church and State, in two ways. First, HB 1523 makes special protections available for those holding specific religious beliefs, but excludes others from these protections. Second, it violates the principle that a religious accommodation cannot cause harm to others – HB 1523’s “broad religious exemption comes at the expense of other citizens.”

He also ruled that HB 1523 violates the Equal Protection Clause of the Fourteenth Amendment because it was passed for the sole purpose of “put[ting] LGBT citizens back in their place after” the Supreme Court recognized their right to marry last summer.

Shortly after the ruling, Governor Phil Bryant appealed this  ruling to the U.S. Fifth Circuit Court of Appeals and also sought a stay in the ruling. He is represented by the Alliance Defending Freedom, a national Christian organization that also authored HB 1523 and promotes anti-LGBT legislation across the country. Attorney General Jim Hood announced that he would not appeal the ruling.

On August 1, Judge Reeves denied the Governor’s request for a stay, writing:

“HB 1523’s absence does not impair the free exercise of religion . . . In addition, issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to ‘tinker with the machinery of death,’ their animus exceeds anything seen in RomerWindsor, or the marriage equality cases.”

The case is currently under appeal at the U.S. Fifth Circuit Court of Appeals. On June 22, 2017 this panel ruled that plaintiffs do not have standing in the case. Plaintiffs have appealed this ruling.

Full list of documents and media:

July 2017: Amicus briefs were filed in support of our en banc petition to the Fifth Circuit.

July 6, 2017: Plaintiffs file petition for an en banc review by the full 5th Circuit.

April 3, 2017: Audio of hearing before the 5th Circuit Court of Appeals (Roberta Kaplan’s arguments begin at the 36:50 mark).

December 23, 2016: Amici File Briefs in Support of Plaintiffs.

December 16,2016: Plaintiffs File HB 1523 Brief with 5th Circuit.

August 12, 2016: 5th Circuit denies stay request from Gov. Bryant.

July 25, 2016: The plaintiffs’ opposition to stay of preliminary injunction to U.S. 5th Circuit Court of Appeals has been filed: www.southernequality.org/wp-content/uploads/2016/07/5th-Cir-Stay-Opposition.pdf.

July 21, 2016: Our legal team filed an affidavit from lead counsel Roberta Kaplan documenting the extensive role that the Alliance Defense Fund played in the development and passage of HB 1523*.

The full court transcripts from the preliminary injunction hearings in front of Judge Reeves are now available:

June 24, 2016: Read the June 24 court hearing transcript here.

June 23, 2016: Read the June 23 court hearing transcript here.

June 14, 2016: New Complaint Challenges Mississippi’s Anti-LGBT Law HB 1523, Seeking Preliminary Injunction.

June 1, 2016: Plaintiffs filed a brief responding to the state’s brief. You can read the full reply brief here.

May 10th, 2016: The Campaign for Southern Equality moved to reopen its prior lawsuit, Campaign for Southern Equality v. Bryant. The motion, supplemental pleading, and the proposed amended injunction were filed in the U.S. District Court for the Southern District of Mississippi on behalf of the Campaign for Southern Equality, representing its members across the state of Mississippi. You can read the the filings here.

*HB 1523: ADF Affidavit and Exhibits

On July 21, 2016, our legal team filed an affidavit from lead counsel Roberta Kaplan documenting the findings of a public records request to Governor Phil Bryant regarding HB 1523 and the role that the Alliance Defense Fund played in authoring, promoting and passing the law. The ADF is a leading actor in the national anti-LGBT movement and works across the country to pass legislation that targets LGBT people. Read Washington Post coverage of the new filings here.

The affidavit and documents how the ADF and collaborating organizations conceived of HB 1523 as part of a national strategy to pass anti-LGBT laws based on religious exemptions; ghost wrote Governor Bryant’s signing statement; and ran a media campaign to support the law that used incendiary rhetoric comparing gays and lesbians to neo-Nazis and the Klu Klux Klan. Supporting exhibits cited in the affidavit can be found here: