Supreme Court Refuses Mississippi Anti-LGBTQ Religious Liberty Case

Mississippi HB1523

Marking another setback for LGBTQ civil rights following oral arguments in the Masterpiece Cakeshop case, the U.S. Supreme Court just declined to hear arguments in the cases challenging Mississippi’s controversial HB 1523 – also known as the anti-LGBTQ ‘license to discriminate’ law.

Back Story

As we reported last year, “[Mississippi HB 1523] enables legal discrimination against same-sex couples, transgender men and women, and any unmarried couple who engages in sexual relations outside the boundaries of marriage.” After two legal challenges failed to stop the law from taking effect last year, a legal battle made its way up through the courts to the Fifth Circuit Court of Appeals.”

That court refused to issue an injunction against the law citing a lack of existing harm. “Under this current record, the plaintiffs have not shown an injury-in-fact caused by HB 1523 that would empower the district court or this court to rule on its constitutionality,” wrote Judge Jerry E. Smith in the Fifth Circuit’s majority opinion. Smith added, “We do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact … but the federal courts must withhold judgment unless and until that plaintiff comes forward.”

Following that decision last summer, plaintiffs in the case decided to petition the Supreme Court – and did so in October 2017.

The organizations petitioning the court – Lambda Legal and the Mississippi Center for Justice – said at the time that HB 1523 was “a transparent attempt to undermine the equal dignity of LGBT citizens established in this court’s decisions.” They added that the law was “an equally transparent attempt to endorse particular religious beliefs as state policy.”

Today, the high court refused to hear the case (meaning the Fifth Circuit decision will stand and the law will remain in full effect).

Today’s Supreme Court Decision

In their refusal, the Supreme Court agreed with the Fifth Circuit that plaintiffs in the case against HB 1523 did not have sufficient standing to bring the case before the high court.

In the refusal the court argued – without commenting on the merits of the case (which is important) – that no one could show actual injury from the law. This isn’t uncommon, but it is a punt that will delay substantive examination of the law’s effects on LGBTQ people in Mississippi.

Reacting to the case, the ACLU of Mississippi released a statement expressing disappointment.

“We are deeply disappointed in the Supreme Court’s refusal to hear challenges to HB 1523, the anti-LGBT law that allows religion to be used as a way to discriminate based on specific beliefs about gay marriage, transgender individuals, and sex before marriage,” said Jennifer Riley Collins, Executive Director for the ACLU of Mississippi. “This law very simply is a license to discriminate. While the right to one’s religious belief is fundamental, a license to discriminate is not. Same-sex couples deserve to be treated with the same dignity and respect as anyone else.”

Collins added:

“However, the fight is not over. The ACLU of Mississippi expects that our narrower challenge will now move forward. Our case was filed on behalf of a same-sex couple planning to marry in Mississippi in the near future. We will continue to proceed on behalf of our members – Nykolas Alford and Stephen Thomas – to protect them and other same-sex couples from this harmful and discriminatory law. This law should not allow state employees to withhold marriage licenses from same-sex couples.

“While we are disappointed in the Court’s decision, the ACLU of Mississippi will not stand quietly by while discrimination is sanctioned. We believe in the rule of law, and we are concerned that harm is already done when any citizen is treated as second class. We want to hear from anyone who experiences discrimination in marriage, health care, or any other context.

“House Bill 1523 cannot trump the Constitution or other federal anti-discrimination statutes. We stand ready to ensure that those rights are enforced and that all Mississippians are protected from discrimination.

“Again, we urge the community to contact us if they or someone they know experiences any discrimination.”

While the news is disappointing, it’s not without a silver lining: the court offered no opinion on the merits of the case since they ruled exclusively on standing. That means the high court – much like the Fifth Circuit – may be willing to hear a case after someone injured by the law files a case against the state.

Mississippi Today analyzed this possibility last year after the Fifth Circuit three judge panel ruling also excluded the merits of the case:

For the original plaintiffs, however, the judges’ decision to avoid any discussion of the merits of the “religious freedom” law is telling. Rob McDuff, the lead attorney on one of the two cases to challenge the law, said Thursday’s decision does not make House Bill 1523 constitutional.

“Even though this is an adverse decision I am pleased that we were able to stop HB 1523 from going into effect for the past year, and hopefully our efforts to see further review will prevent it from going into effect in the future. But whatever happens, it is clear that this law is unfair and intolerant and unconstitutional and the Fifth Circuit’s decision based on the doctrine of standing does not change that,” McDuff said.

To that end, Lambda Legal is already seeking plaintiffs for a new case. “If you are in Mississippi and you have faced or fear anti- discrimination, PLEASE get in touch. We and @justice4ms are here to help,” they wrote on Twitter today. The tweet contained a website where anyone affected by the law can notify the two organizations in order to move forward with a case containing actual injury.



Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.


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