By Ed Dickerson –
On Monday, January 8, 2018, the United States Supreme Court declined to review both Barber v. Bryant and Campaign for Southern Equality v. Bryant, two suits filed against Mississippi Governor Phil Bryant contesting the state’s law (HB 1523) which allows public officials and businesses to deny services to LGBT people for religious reasons.
Campaign for Southern Equality v. Bryant was brought by Dr. Susan Hrostowski, an Episcopal priest who is a married lesbian and the vicar of an Episcopal church in Collins, Mississippi, and the Campaign for Southern Equality which argued that it has a religious and moral conviction that same-sex couples should be treated with equality. They challenged Mississippi’s law which allows officials and secular businesses to refuse to recognize same-sex marriages or recognize such marriages conducted in other states on the basis that it favored one religious view over another in violation of the Establishment Clause. Judge Carlton W. Reeves of The Federal District Court for Southern Mississippi, ruled in favor of the plaintiffs, but suggested the Fifth Circuit Court of Appeals should review his ruling, and stayed its enforcement 14 days to give the defendants an opportunity to request a longer stay from a higher court.
Barber v. Bryant was filed in order to prevent Mississippi’s HB 1523, the “Protecting Freedom of Conscience from Government Discrimination Act,” from taking effect. Passed by the Mississippi legislature in 2016, HB 1523 explicitly states that it is designed to protect three specific beliefs: (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.
The Federal District Court for Southern Mississippi issued a preliminary injunction against its enforcement on June 30, 2016, the day before it was scheduled to take effect on July 1,
Both cases ended up before the Fifth Circuit Court of Appeals, and both were dismissed for lack of standing. In short, the Court of Appeals concluded that neither plaintiff had suffered an actual injury, but merely “a general stigmatic injury,” which the court deemed insufficient to give the plaintiff standing.
By declining to address the merits of the cases, the Supreme Court leaves the Fifth Circuit Court of Appeals rulings in place, meaning that HB 1523 remains in force. Phil Bryant, who as governor is the named defendant in the cases, said, “As I have said from the beginning, this law was democratically enacted and is perfectly constitutional. The people of Mississippi have the right to ensure that all of our citizens are free to peacefully live and work without fear of being punished for their sincerely held religious beliefs.”
“The Supreme Court’s decision declining to review this narrow question about standing is not an endorsement of HB 1523,” noted Rob McDuff, the lead attorney for the plaintiffs.
That the Supreme Court declined to hear this case is not the end of the story as it is likely that eventually a same-sex couple will be denied either state or business services for religious reasons protected by HB 1523 that will supply them with standing to address the Establishment Clause concerns. And then the courts will have to rule on the merits. As Beth Littrell, lawyer for Lambda Legal, an LGBTQ advocacy group said, “We’re ready to sue again when plaintiffs tell us about the harm,” the lawyer adds. “We would have to go back and start over again when we are able to articulate and show the particular ways this law is hurting people.”
For those concerned with religious liberty, these cases are fraught with difficult issues, as both sides are seeking to defend conflicting rights. Mississippi’s HB 1523 highlights some of those difficulties. On the one hand, it seeks to protect freedom of conscience in three specific areas, something which appears laudable on the surface. But as Judge Reeves pointed out in his ruling against the law, “It is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others…. It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).”
There is a legal maxim that says, “Hard cases make bad laws,” and this issue, highly politicized as it is, seems likely to be the source of more hard cases. District Court Judge Reeves alluded to this in his 60-page ruling in the Barber case: “In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction….. Obergefell has led to HB 1523.”
The Supreme Court may have declined to hear this case because many of the issues could be addressed in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That ruling, expected this summer, will likely clarify or at least address some of the issues in the Mississippi cases. Stay tuned.
 HB 1523, sec. 2.
Ed Dickerson is the author of scores of articles and three books, and a speaker to audiences on three continents. He holds a masters degree in religious education from Andrews University, and has extensive experience as a consultant to the legislative and executive branches of government in his home state. His most recent book is For Such a Time (Pacific Press, 2017).