Justices Won't Review Challenges to Mississippi's Anti-Gay Law

A celebration of gay marriage outside the U.S. Supreme Court in 2015. Credit: Diego M. Radzinschi / ALM

The U.S. Supreme Court on Monday declined to review two challenges to a Mississippi law considered to be one of the most extreme anti-gay rights laws in the country.

The justices, without comment, turned away challengers to the law in Barber v. Bryant and Campaign for Southern Equality v. Bryant.

The Mississippi law—the Protecting Freedom of Conscience from Government Discrimination Act—is currently in effect and protects three specific religious beliefs: marriage only between a man and a woman; sexual relations confined only to marriage; and sex as an innate, immutable characteristic assigned at birth. The law allows religious objectors to deny services to gay, lesbian and transgender individuals.

Donald Verrilli.

The Barber challenge was brought by former Obama administration U.S. Solicitor General Donald Verrilli Jr., head of the Washington office of Munger, Tolles & Olson. The Campaign for Southern Equality was represented by Roberta Kaplan of Kaplan & Co.

“The court's inaction today means that LGBTQ Mississippians will continue to face harassment and discrimination,” said Masen Davis, head of Freedom for All Americans, a bipartisan campaign to secure nondiscrimination protections for LGBTQ persons. “HB 1523 fails to honor the tradition of religious freedom in America—instead, it allows people to use religion as a license to discriminate.”

The petitions argued the state law violated the First Amendment's establishment clause by endorsing religious opposition to same-sex couples and the 14th Amendment's equal protection clause by “bestowing legal privileges only on those individuals who subscribe to HB 1523's state-endorsed religious and moral beliefs.”

The law was enacted in April 2016. A federal district judge in June 2017 issued a preliminary injunction blocking the law. Shortly afterwards, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed and held that the Barber plaintiffs lacked standing because they could not claim a specific harm caused by the law, which had yet to take effect.

The Alliance Defending Freedom assisted Mississippi in its defense of the law.

“The 5th Circuit was right to find that those opposing this law haven't been harmed and, therefore, can't try to take it down,” Kevin Theriot, senior counsel at Alliance Defending Freedom, said in a statement. “Because of that, we are pleased that the Supreme Court declined to take up these baseless challenges, which misrepresented the law's sole purpose of ensuring that Mississippians don't live in fear of losing their careers or their businesses simply for affirming marriage as a husband-wife union.”

The justices in December heard another major case that involves religion and anti-discrimination laws protecting the gay community—Masterpiece Cakeshop v. Colorado Civil Rights Commission. Separately, the court last month turned down review in Evans v. Georgia, the Eleventh Circuit case that confronted the scope of workplace discrimination protections for LGBT employees.