Gov. Bryant appeals HB 1523 Ruling

One week after a federal judge struck down House Bill 1523, Gov. Phil Bryant broke with the other defendants in the case, filing his own appeal of the decision on Thursday.

Earlier the same day, Attorney General Jim Hood had said publicly that he was still unsure whether he would appeal the decision. Hood is a defendant along with the governor and two other state officers, Judy Moulder, the registrar of vital records, and Richard Berry, the executive director of the department of human services.

In his motion for appeal, the governor argues that the plaintiffs had not shown how they would be harmed by a bill he says was simply intended to protect Mississippians “from being forced or pressured to act in a manner contrary to their deeply held religious or moral beliefs.”

“The Court complains that HB 1523’s protections ‘creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity,’ but that observation reflects nothing more than the Court’s disagreement with Mississippi’s decision to prioritize freedom of conscience over anti-discrimination norms,” Gov. Bryant says in his appeal.

The governor has also asked for a stay of the preliminary injunction, which would let the law go into effect until the Fifth Circuit Court of Appeals rules. But according to an attorney for the plaintiffs, the court isn’t likely to grant a stay on a law that has never gone into effect.

“The court almost always looks to what the status quo here is. And the status quo here, as it has been forever now, is no HB 1523,” said Roberta Kaplan, lead attorney for the plaintiffs in Campaign for Southern Equality v. Bryant III, one of the two lawsuits ruled on by U.S. District Judge Carlton Reeves last week.

“So we’re confident that it’s not going to be stayed.”

House Bill 1523, which Gov. Bryant signed into law in April, singles out three “sincerely held” religious beliefs as worthy of protection: that marriage is between one man and one woman; that people should not have sex outside such marriages; and that a person’s gender is set at birth. The law would protect from litigation anyone who refuses marriage-related services because of these beliefs. But opponents say doing so unfairly targets gay, lesbian and transgender individuals for discrimination.

Since then, four lawsuits have been filed against House Bill 1523. The first, from the American Civil Liberties Union in May, asked for a preliminary injunction which would have kept the law from going into effect on July 1. But Judge Carlton Reeves, who oversaw all the cases against House Bill 1523, denied this, saying the plaintiffs did not prove they were in immediate harm.

Then early last week, Judge Reeves indicated in another decision that he would invalidate the part of the bill that allowed clerks to recuse themselves from issuing marriage licenses to same-sex couples. The attorney general has said he will appeal this decision, although as of Thursday, the appeal had not been filed.

But that ruling didn’t touch any aspects of the law beyond the part pertaining to clerks. Private business owners, such as caterers, and other state officials, such as public school counselors, were still allowed to refuse marriage-related services to gay and lesbian Mississippians.

The decision that Gov. Bryant is appealing, however, invalidated every facet of House Bill 1523. The two lawsuits it addresses, Barber v. Bryant and Campaign for Southern Equality v. Bryant III, took aim at the whole law by arguing it violated the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. These prohibit government from favoring one religion over another and one group of citizens over another, respectively.

Hood has publicly expressed doubts about the merits of the law and questioned whether it was motivated by religious freedom or by politics. In a statement released last week after Judge Reeves’ ruling, he said that he felt the “churchgoing public was duped into believing that HB 1523 protected religious freedoms.”

“That’s what’s exploded in our state, political bills passed for political purposes… And it’s affected our ability to properly defend other cases,” Hood said Thursday. “So that’s really been an explosion, and I think House Bill 1523 was one of those bills.”

Kaplan said she had expected the governor to appeal.

“Our clients are disappointed though not surprised that the governor has taken this step,” Kaplan said. “They want to be able to live their lives in peace and dignity without the incredible insult and stigma of HB 1523. They’re going to continue the fight, they just think it’s a shame it has to be continued.”

Because the attorney general has not yet decided about the appeal, Drew Snyder, an attorney in the governor’s office, filed the appeal on Gov. Bryant’s behalf.

On Monday, the Governor’s office confirmed that Jonathan Mitchell and John Sauer of the James Otis Law Group in St. Louis are representing the governor pro bono. Later that day, they filed a motion with the Fifth Circuit to expedite the appeal and their request for a stay.