US Supreme Court Declines to Hear Challenge to Mississippi’s Freedom of Conscience Act

WASHINGTON — The U.S. Supreme Court has declined to hear an appeal of a Fifth Circuit ruling that upheld Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act,” a bill meant to shelter residents from punishment when acting in accordance with their religious convictions in regard to the institution of marriage.

The court denied the cases of Barber v. Bryant and Campaign for Southern Equality v. Bryant on Monday without explanation, a move welcomed by those on the legal team defending the Mississippi legislation.

“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. 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,” Alliance Defending Freedom (ADF) Senior Counsel Kevin Theriot said in a statement.

As previously reported, the Freedom of Conscience Act was signed into law in April 2016 by Gov. Phil Bryant, who identifies as a Christian. The bill prohibits the government from punishing those who decline to officiate same-sex ceremonies or provide services or accommodations for the celebrations, as well as those whose policies require use of locker and restrooms consistent with their biological gender.

It does not permit persons to refuse service in general, but only to decline forms of personal participation in events that conflict with their faith.

The American Civil Liberties Union (ACLU) filed a legal challenge, which was later joined by others. In June 2016, U.S. District Judge Carlton Reeves struck down part of H.B. 1523, while leaving the rest of the law intact.

Focusing on the officiation portion of the legislation, he issued an order stating that all 82 county clerks must issue same-sex “marriage” licenses to homosexuals despite their religious beliefs, opining that an opt-out would run contrary to the U.S. Supreme Court ruling of Obergefell v. Hodges.

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“Having reviewed the relevant section of HB 1523, the parties’ arguments, and the scope of the Supreme Court’s ruling in Obergefell, the Court finds that (Section) 3(8)(a) may in fact amend Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell,” Reeves wrote.

“Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit—by advocating for a constitutional amendment to overturn the decision, for example,” he said. “But the marriage license issue will not be adjudicated anew after every legislative session.”

The state appealed, and in June 2017, the Fifth Circuit Court of Appeals vacated Reeves’ injunction, stating that the plaintiffs who filed the legal challenge did not have standing to sue because they could not demonstrate any actual harm created by the law.

“[T]he plaintiffs have not shown an injury-in-fact caused by H.B. 1523 that would empower the district court or this court to rule on its constitutionality,” the three-judge panel wrote.

“We do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact that satisfies the ‘irreducible constitutional minimum of standing,’ but the federal courts must withhold judgment unless and until that plaintiff comes forward,” it said.

The ruling was then appealed to the nation’s highest court, but on Monday, it was allowed to stand.

“Those who haven’t been and won’t be harmed by this law shouldn’t be allowed to restrict freedom for others by ensuring dissenters are left open to the government discrimination that has already occurred in states without protective laws like this one,” ADF’s Theriot said in a statement.

Groups such as Lambda Legal said that they would still file a constitutional challenge against the law in the courts.

“We will keep fighting in Mississippi until we overturn this harmful law, and in any state where anti-gay legislators pass laws to roll back LGBT civil rights,” remarked attorney Beth Littrell. “Unfortunately, the Supreme Court’s decision today leaves LGBT people in Mississippi in the crosshairs of hate and humiliation, delaying justice and equality.”

As previously reported, another case involving the rights of those who decline to be involved in same-sex celebrations due to their faith, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is currently being considered by the U.S. Supreme Court. Oral argument was heard in that case on Dec. 5, and a decision is expected in June 2018.


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