Appeals court gives Mississippi the green light to favor anti-LGBTQ discrimination

Bigotry won on a technicality.

A protest against HB 1523 that took place on April 4, 2016. CREDIT: AP Photo/Rogelio V. Solis

Mississippi’s HB 1523, a law passed last year that creates special protections exclusively for conservative religious beliefs about sexuality and gender, is unconstitutional on its face. Unfortunately, the U.S. Court of Appeals for the Fifth Circuit decided this week that the case challenging the pro-discrimination law was not the appropriate vehicle for overturning it.

As passed, HB 1523 specifically carves out three specific religious beliefs to receive extra protection under law: opposing same-sex marriage, opposing sexual relations outside of a man-woman marriage, and opposing the legitimacy of transgender identities. Mississippi already lacks any protections for the LGBTQ community, but HB 1523 further encourages discrimination by promising that those beliefs will be protected if people act upon them.

In a unanimous opinion issued Thursday, a three-judge panel determined that the plaintiffs challenging the law did not have proper standing to bring their complaint against the law. “Standing is not available to just any resident of a jurisdiction to challenge a government message without a corresponding action about a particular belief outside the context of a religious display or exercise,” the Court explained. The plaintiffs — several Mississippi residents, a church, and an advocacy organization — do not hold the beliefs outlined for special protection, but according to the Court, that doesn’t mean they are injured by the law.

The ruling overturns a lower court’s ruling from last summer that put the law on hold with an injunction. U.S. District Judge Carlton Reeves had concluded that by endorsing and elevating one set of religious beliefs, the law conveyed the state’s “disapproval and diminution” of all other religious beliefs. “If three specific beliefs are ‘protected by this act,’ it follows that every other religious belief a citizen holds is not protected by the act,” he wrote. “Christian Mississippians with religious beliefs contrary to [HB 1523] become second-class Christians.”

The appeals court didn’t weigh in on the merits and left the door open for future challenges. “We do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact,” the decision explained, “but the federal courts must withhold judgment unless and until that plaintiff comes forward.” Because the law privileges one set of beliefs but doesn’t explicitly punish the others — and because there are no state or local laws protecting against anti-LGBTQ discrimination — figuring out how a plaintiff could actually demonstrate injury by the law could be quite a challenge.

In the meantime, because the injunction has now been lifted, HB 1523 is officially enforceable in Mississippi, granting anti-LGBTQ and anti-sex beliefs exclusive protection under law.