Barber v. Bryant

• Decision Date: 22 June 2017
• Docket Number: No. 16-60477, No. 16-60478,16-60477
• Citation: 860 F.3d 345
• Parties: Rims BARBER ; Carol Burnett; Joan Bailey; Katherine Elizabeth Day; Anthony Laine Boyette; Don Fortenberry; Susan Glisson; Derrick Johnson ; Dorothy C. Triplett; Renick Taylor; Brandilyne Mangum–Dear; Susan Mangum; Joshua Generation Metropolitan Community Church, Plaintiffs–Appellees, v. Governor Phil BRYANT, State of Mississippi; John Davis, Executive Director of the Mississippi Department of Human Services, Defendants–Appellants. Campaign for Southern Equality; The Reverend Doctor Susan Hrostowski, Plaintiffs–Appellees, v. Phil Bryant, in His Official Capacity as Governor of the State of Mississippi; John Davis, in His Official Capacity as Executive Director of the Mississippi Department of Human Services, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

860 F.3d 345

Rims BARBER ; Carol Burnett; Joan Bailey; Katherine Elizabeth Day; Anthony Laine Boyette; Don Fortenberry; Susan Glisson; Derrick Johnson ; Dorothy C. Triplett; Renick Taylor; Brandilyne Mangum–Dear; Susan Mangum; Joshua Generation Metropolitan Community Church, Plaintiffs–Appellees,

v.Governor Phil BRYANT, State of Mississippi; John Davis, Executive Director of the Mississippi Department of Human Services, Defendants–Appellants.

Campaign for Southern Equality; The Reverend Doctor Susan Hrostowski, Plaintiffs–Appellees,

v.Phil Bryant, in His Official Capacity as Governor of the State of Mississippi; John Davis, in His Official Capacity as Executive Director of the Mississippi Department of Human Services, Defendants–Appellants.

No. 16-60477

No. 16-60478

United States Court of Appeals, Fifth Circuit.

Filed June 22, 2017

Robert Bruce McDuff, Esq., Sibyl C. Byrd, Esq., Jacob Wayne Howard, Esq., McDuff & Byrd, Jackson, MS, Elizabeth Littrell, Lambda Legal Education & Defense Fund, Atlanta, GA, Beth Levine Orlansky, Mississippi Center for Justice, Jackson, MS, Susan L. Sommer, Lambda Legal Defense & Education Fund, Incorporated, New York, NY, for Plaintiffs–Appellees.

Jonathan F. Mitchell, Dean John Sauer, James Otis Law Group, L.L.C., Saint Louis, MO, James Andrew Campbell, Kevin Hayden Theriot, Alliance Defending Freedom, Scottsdale, AZ, Drew Landon Snyder, Office of the Governor for the State of Mississippi, Jackson, MS, Daniel Bradshaw, Mississippi Department of Human Services Executive Director's Office, Jackson, MS, Tommy Darrell Goodwin, Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS, for Defendants–Appellants.

Kimberlee Wood Colby, Christian Legal Society, Springfield, VA, for Christian Legal Society, National Association of Evangelicals, Amici Curiae.

Diego Armando Soto, Esq., Southern Poverty Law Center, Immigrant Justice Project, Montgomery, AL, for LGBT Youth in Mississippi and their Parents, Teachers, and Counselors, Amicus Curiae.

Scott A. Keller, Solicitor, Office of the Solicitor General for the State of Texas, Austin, TX, for State of Texas, State of Arkansas, State of Louisiana, State of Nebraska, State of Nevada, State of Oklahoma, State of South Carolina, State of Utah, Paul R. LePage, Governor of Maine, Amici Curiae.

Deborah Jane Dewart, Attorney, Swansboro, NC, for North Carolina Values Coalition and Liberty, Life, and Law Foundation, Amici Curiae.

John Allen Eidsmoe, Senior Counsel, Foundation for Moral Law, Montgomery, AL, Foundation for Moral Law, Amicus Curiae.

James William Manuel, Esq., Michael James Bentley, Esq., Bradley Arant Boult Cummings, L.L.P., Jackson, MS, for Sanderson Farms, Incorporated, John N. Palmer, Sr., Jack Reed, Jr., William A. Percy, II, Tim C. Medley, Sharpe & Wise, P.L.L.C., Kelly Kyle, Hal Caudell, Talamieka Brice, Amber Kirkendoll, Jessica Kirkendoll, Amici Curiae.

Joshua Adam Matz, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, L.L.P., Washington, DC, for Caroline Mala Corbin, Ira C. Lupu, Micah J. Schwartzman, Richard C. Schragger, Elizabeth Sepper, Nelson Tebbe, Robert Tuttle, Amici Curiae.

James H.R. Windels, Esq., Davis, Polk & Wardwell, L.L.P., New York, NY, for Gay Men's Health Crisis, Incorporated, Aids Services Coalition, Grace House, Incorporated, My Brother's Keeper, Incorporated, Amici Curiae.

Jeffrey Samuel Trachtman, Kramer Levin Naftalis & Frankel, L.L.P., New York, NY, for Bishop of the Episcopal Diocese of Mississippi, General Synod of the United Church of Christ, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Union for Reform Judaism, Unitarian Universalist Association, United Synagogue of Conservative Judaism, Covenant Network of Presbyterians, Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns, Methodist Federation for Social Action, More Light Presbyterians, Muslims for Progressive Values, Open and Affirming Coalition of the United Church of Christ, Reconciling Ministries Network, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Incorporated, Amici Curiae.

Andrew O'Connor, Ropes & Gray, L.L.P. Boston, MA, for GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, American Civil Liberties Union, Amici Curiae.

Charles C. Lifland, Esq., Justine M. Daniels, O'Melveny & Myers, L.L.P., Los Angeles, CA, for American International Group, Incorporated, Belhaven Residential, L.L.C., Bloomberg, L.P., Byrne and Associates, P.L.L.C., Chism and Company, Incorporated, Choice Hotels International, Incorporated, CVS Health Corporation, David Neil McCarty Law Firm, P.L.L.C., First Natchez Radio Group, Incorporated, Front Porch Fodder Publishing, L.L.C., Glassdoor, Incorporated, International Business Machines Corporation, Levi Strauss & Company, Mantle, L.L.C., Molpus Woodlands Group, Ocean Springs Seafood Market, Incorporated, Paracosm Entertainment, L.L.C., Pfizer, Incorporated, Pritchett Engineering & Planning, L.L.C., Replacements, Limited, T Enterprises, Incorporated, Mitchell Gold Company, Doing Business as Mitchell Gold + Bob Williams, 'Sip Magazine, L.L.C., Two Rivers Realty, L.L.C., Amici Curiae.

Nicole Erica Schiavo, Hogan Lovells US, L.L.P., New York, NY, for Anti–Defamation League, Americans United for Separation of Church and State, Bend the Arc, Central Conference of American Rabbis, Hadassah, Interfaith Alliance, National Council of Jewish Women, People for the United Way Foundation, T'ruah: the Rabbinic Call for Human Rights, Women of Reform Judaism, Women's League for Conservative Judiasm Interfaith Alliance, Hindu American Foundation, Amici Curiae

George Andrew Lundberg, Latham & Watkins, L.L.P., Los Angeles, CA, for E. Tendayi Achiume, Katherine R. Allen, Nadav Antebi–Gruska, Emily A. Arnold, M.V. Lee Badgett, Amici Curiae.

Before SMITH, ELROD, and HAYNES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Governor of Mississippi and the Executive Director of the Mississippi Department of Human Services appeal a preliminary injunction. Because the plaintiffs do not have standing, we reverse the injunction and render a judgment of dismissal.

I.

A.

The plaintiffs challenge the constitutionality of a Mississippi statute, HB 1523, under the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment. HB 1523 provides that "[t]he state government shall not take any discriminatory action"¹ against persons who act in accordance with certain beliefs in an enumerated set of circumstances. Section 2 of HB 1523 identifies three "religious beliefs or moral convictions":

(a) Marriage is or should be recognized as the union of one man and one woman; (b) [s]exual relations are properly reserved to such a marriage; and (c) [m]ale (man) or female (woman) refer[s] to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

2016 Miss. Law HB 1523 § 2. Those who act in accordance with those beliefs are protected from discriminatory action by the state in the form of adverse tax, benefit, and employment decisions, the imposition of fines, and the denial of occupational licenses. HB 1523 § 4. The statute creates a private right of action for individuals to address any violations of HB 1523 by state officials and permits its use as a defense in private suits over conduct covered by the statute. HB 1523 § 5.

Section 3 defines the set of circumstances in which adverse state action is restricted. Religious organizations are protected when they make decisions regarding employment, housing, the placement of children in foster or adoptive homes, or the solemnization of a marriage based on a belief listed in Section 2. HB 1523 § 3(1)–(2). Parents are protected if they decide to raise their foster or adoptive children in accordance with a belief listed in Section 2. HB 1523 § 3(3). Doctors and mental health counselors cannot be compelled to provide services in contravention of a sincerely held Section 2 belief, provided it does not interfere with "visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law." HB 1523 § 3(4). Businesses that offer wedding-related services are protected if they decline to provide them on the basis of a Section 2 belief. HB 1523 § 3(5).

Section 3 also protects any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms. HB 1523 § 3(6). The state cannot take adverse employment action against a state employee for Section 2-related speech as long as his "speech or expressive conduct is consistent with the time, place, manner and frequency of any other expression of a religious, political, or moral belief or conviction allowed...." HB 1523 § 3(7). Finally, county clerks and state judges cannot be compelled to license or celebrate marriages that are inconsistent with a sincerely held Section 2 belief, provided that the official gives prior notice and "any legally valid marriage is not impeded or delayed as a result of any recusal." HB 1523 § 3(8).

B.

The plaintiffs are residents of Mississippi and two organizations who do not share the Section 2 beliefs. The district court discussed the individual plaintiffs in three categories: (1) religious leaders who do not agree with the Section 2 beliefs, (2) gay and transgender persons who may be negatively affected by HB 1523, and (3) other persons associated with the Section 3 circumstances who do not share the Section 2 beliefs. The organizational plaintiffs are Joshua Generation Metropolitan Community Church, a religious organization that objects to the Section 2 beliefs, and the Campaign for Southern Equality ("CSE"), whose brief describes it as "a non-profit organization that works across the South to promote the full humanity and equality of lesbian, gay, bisexual, and transgender people in...