On Thursday, a three-judge panel for the 5th U.S. Circuit Court of Appeals lifted the injunction on Mississippi’s vicious “religious freedom” law, the worst anti-LGBTQ measure in the country. A federal judge had blocked the law before it took effect, ruling it violated the Establishment and Equal Protection Clauses. The 5th Circuit, however, held that the plaintiffs in the case did not have standing to challenge the law in court, rendering the injunction improper.
- Businesses can refuse service to LGBTQ people.
- Employers can fire (or refuse to hire) workers because of their sexual orientation and gender identity.
- Adoption agencies, private and taxpayer-funded, can turn away same-sex couples and trans people.
- Landlords can evict renters for being LGBTQ.
- Medical professionals can refuse to treat LGBTQ patients.
- Clerks and judges can refuse to marry same-sex couples.
- Schools can exclude trans students from bathrooms that align with their gender identity and discriminate against all LGBTQ students.
And, for good measure, these requirements must be interpreted as broadly as possible in favor of the discriminators.
As a whole, the bill runs afoul of the neutrality principle at the core of the First Amendment’s Establishment Clause. That principle bars the government from favoring certain religious beliefs over others. HB 1523 does exactly that by elevating three beliefs—opposition to same-sex marriage, same-sex intimacy, and gender nonconformity—above all others in the eyes of the law. In Mississippi, individuals who hold those three beliefs now have a special right to discriminate against LGBTQ people. The Establishment Clause forbids the government from playing favorites in this way. It also prohibits the government from accommodating religion in a manner that significantly burdens third parties, something HB 1523 obviously does by disadvantaging LGBTQ individuals.
The Fifth Circuit did not deny any of this. Instead, it ruled that the plaintiffs who brought the suit, a group of ministers and LGBTQ Mississippians, did not have standing—a particularized injury that justifies challenging a law in court. In his majority opinion, Judge Jerry Smith ruled that the plaintiffs were not sufficiently stigmatized by the law to obtain standing because they had no “personal confrontation” with it: Unlike, say, a religious monument in a government building, HB 1523 exists only in statute form. Smith also held that the plaintiffs could not sue on equal protection grounds because they had not proved that the law would harm them directly.
Because the 5th Circuit has notoriously stingy standing rules with regard to equal protection, Smith’s decision to dismiss the plaintiffs’ equal protection claims was inevitable. His refusal to grant standing based on Establishment Clause claims, however, makes absolutely no sense. 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.”
Smith’s logic would lead to bizarre results. According to his theory, an LGBTQ Mississippian might have standing to challenge HB 1523 if it were printed on a billboard paid for by the government, sent to residents via official mail, or read aloud at a state-sponsored function. But because the law exists only in statute form, Smith insisted, it is not sufficiently stigmatizing to confer standing. This bizarre reasoning is difficult to take seriously. It means that, if Mississippi passed a law establishing Southern Baptism as the official state religion, nobody would have standing to challenge it.
Roberta Kaplan, who filed suit against HB 1523, announced on Thursday that she will appeal the panel’s decision to the full 5th Circuit. The injunction will remain in place while the entire court considers her appeal. The ACLU also stated that it would move forward with a separate suit challenging the same statute. Anti-LGBTQ politicians in other states are watching this litigation closely. If Mississippi ultimately prevails, expect to see HB 1523 copycats crop up across the country.