Plaintiffs in Campaign for Southern Equality v. Bryant (CSE III) filed their brief today with the United States Court of Appeals for the Fifth Circuit in their legal challenge to Mississippi’s HB 1523, an extreme anti-LGBT law. The Campaign for Southern Equality’s brief argues that HB 1523, by protecting three specific religious beliefs above all others, is unprecedented and violates the First Amendment’s guarantee that government cannot “establish” a religion.
The full brief can be found at: www.southernequality.org/wp-content/uploads/2016/12/Dec.-16th-Brief-FILED.pdf
In addition to CSE, the other plaintiff in the case is the Rev. Dr. Susan Hrostowski, a CSE member who currently serves as the vicar of St. Elizabeth’s Episcopal Church in Collins, Mississippi and lives in Forrest County, Mississippi with her wife and their 16-year-old son. At trial, Rev. Hrostowski testified powerfully that HB 1523 “conveys a message to [her] that the State [of Mississippi] wants to hold certain people, that would be gay men, lesbians, and transgender people, to be less worthy and have less dignity than other human beings,” and that HB 1523 is “the antithesis of the message of Jesus” and the teachings of the Episcopal Church.
HB 1523, which was signed into law last spring, would have allowed public employees, service providers, and business owners in Mississippi to deny treatment, services, and goods to LGBT individuals on the basis of three specific religious beliefs: (1) that marriage can only be between a man and a woman; (2) that sexual intercourse is properly reserved to such a marriage; and (3) that sex is an immutable characteristic that is assigned at birth and cannot change. Thus, a restaurant manager in Jackson, Mississippi who chooses not to “recognize” the marriage of Rev. Hrostowski and her wife would have been empowered under HB 1523 to refuse to seat them together at a table for two on their anniversary, despite the existence of an ordinance prohibiting discrimination on the basis of sexual orientation. HB 1523 also prohibits the state from intervening to protect the best interests of gay or transgender children in the care of adults who may hold one or more of these official religious beliefs. And HB 1523 not only allows private citizens to refuse to provide counseling and psychological treatment on the basis of the three official religious beliefs in clear violation of professional ethical guidelines—it also permits state employees, including public school guidance counselors, to turn away students who need care.
CSE and Rev. Hrostowski are being represented by lawyers from Paul, Weiss, Rifkind, Wharton & Garrison LLP, Fishman Haygood LLP, as well as Southern Methodist University Law Professor Dale Carpenter. “While the Constitution guarantees everyone the right to freely practice their religion, no government can establish a religion or officially endorse certain controversial religious views over others,” explains lead counsel Roberta Kaplan. “By singling out three specific anti-LGBT religious beliefs and giving special, absolute rights only to people who hold those beliefs, Mississippi’s HB 1523 does exactly that. As Judge Reeves observed, HB 1523 favors Southern Baptists over Unitarians, Catholics over Episcopalians and Orthodox Jews over Reform Jews. The district court was right to block HB 1523 from going into effect since it is so obviously violates fundamental American and constitutional principles. We are confident that the Fifth Circuit will affirm.”
Following a two-day evidentiary hearing during which eight witnesses testified, HB 1523 was struck down by U.S. District Court Judge Carlton Reeves last summer only minutes before it was supposed to go into effect. In his ruling, Judge Reeves stated that the “court finds that [HB 1523] does not honor the tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.”
The full ruling from Judge Reeves can be read at: www.southernequality.org/wp-content/uploads/2016/07/CSE-v-Barber-Order.pdf.
“There’s no place for HB 1523 in the Hospitality State. HB 1523 endorses certain religious beliefs over others, for the hurtful purpose of discriminating against our neighbors. It does not reflect the Mississippi that I know. The district court, like most Mississippians, saw HB 1523 for the unjust and unlawful act that it is. We trust the court of appeals will see it that way, too,” says co-counsel Alysson L. Mills of Fishman Haygood LLP.
While the Campaign for Southern Equality appreciates that there is a wide diversity of views on marriage and family among people of faith, “the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.” Lee v. Weisman, 505 U.S. 577, 587 (1992). HB 1523 is not about protecting Mississippians’ ability to practice their religion or to engage in an open debate about the merits of marriage equality. HB 1523 instead acts as an unconstitutional religious gerrymander by putting its thumb down on the scales to give special protections to one side in that religious debate, and not the other.
“The Constitution is clear that, even in the guise of protecting religion, the government may not favor one set of religious beliefs above all others. The Establishment Clause declares a truce in the sectarian war of all against all, but Mississippi’s HB 1523 violates that truce—with harmful consequences not only for LGBT Mississippians but religion itself,” explains co-counsel Dale Carpenter, the Judge William Hawley Atwell Chair of Constitutional Law at SMU Dedman School of Law.
Although Mississippi Attorney General Jim Hood decided not to press an appeal, Mississippi Governor Phil Bryant appealed the district court’s decision to the Fifth Circuit. Arguments before the Fifth Circuit have not yet been scheduled, but are likely to take place in the spring or summer of 2017.
Roberta Kaplan and her Paul, Weiss LLP team have represented the Campaign for Southern Equality twice before. Earlier this year, Kaplan successfully challenged Mississippi’s ban on adoption by same-sex couples, the last of its kind in the entire United States, in Campaign for Southern Equality v. Mississippi Department of Human Services, 175 F. Supp. 3d 691 (S.D. Miss. 2016) (“CSE II”). And before that, in 2014, Kaplan represented the Campaign for Southern Equality in successfully challenging Mississippi’s ban on marriage for same-sex couples in Campaign for Southern Equality v. Bryant, 64 F. Supp. 3d 906 (S.D. Miss. 2014) (“CSE I”).
Mississippi is home to 60,000 LGBT adults and an estimated 11,400 transgender youth and adults, according to 2016 data published by the Williams Institute at the U.C.L.A. School of Law. The state is also home to 3,500 same-sex couples, 29 percent of whom are raising children—the highest rate in the nation.
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Based in Asheville, North Carolina, the Campaign for Southern Equality is a non-profit organization that empowers LGBT individuals and families across the South and advocates for full legal equality for all.
