Earlier this month, Mississippi’s sweeping anti-LGBT law, the Religious Liberty Accommodations Act[1], went into effect. Enacted following the landmark Obergefell v. Hodges[2] decision legalizing same-sex marriage, the law was initially supposed to have come into effect on July 1, 2016. On the day before, in Barber v. Bryant,[3]  a U.S. District Court judge issued a permanent injunction blocking the statute. Then, a Fifth Circuit panel reviewed that decision and overturned the District Court’s ruling, concluding that the plaintiffs lacked standing to challenge the law’s constitutionality.[4] Last month, the full Fifth Circuit denied petitioners’ request to rehear the case en banc,[5] clearing the way for the law to take effect.

What exactly does this law do? HB 1523 first identifies a set of three “religious beliefs or moral objections” to same-sex marriage and LGBT identity, namely that

(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.[6]

Individuals or organizations that hold any of these beliefs are immunized from action by the state in the form of “adverse tax, benefit, and employment decisions, the imposition of fines, and the denial of occupational licenses.”[7] This means that employers in Mississippi can now refuse to hire LGBT individuals, landlords can deny them housing, and adoption agencies can deny service to LGBT couples due to any of the above-mentioned “religious beliefs or moral objections.” HB 1523 even gives public employees license to discriminate, allowing schools to enforce transphobic bathroom or uniform policies and excusing judges or clerks who refuse to issue marriage licenses to same-sex couples.

While only two of twelve Fifth Circuit judges voted to rehear the case en banc, the dissent in that opinion outlines one clear route for the plaintiffs to appeal their case to the Supreme Court. It relies on the reasoning in Santa Fe Independent School District v. Doe,[8] a case where the Supreme Court held that “school sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”[9] In that case, the injury was the “mere passage by the [school d]istrict of a policy that has the purpose and perception of government establishment of religion.”[10] That logic could certainly be applied here and perhaps provide enough for the Supreme Court to overturn the Fifth Circuit’s ruling.

Another potential line of attack was dismissed out of hand by the Fifth Circuit panel, but deserves reconsideration in light of other cases not discussed or briefed in Barber. Specifically, the panel declined to apply Awad v. Ziriax,[11] a case in which the Tenth Circuit Court of Appeals enjoined the Oklahoma Election Board from certifying a state constitutional amendment that would have prevented state courts from using or considering Sharia law in their decisionmaking. The Fifth Circuit noted that the Oklahoma constitutional amendment would have prevented the state courts form adjudicating Awad’s will, which was a sufficient injury-in-fact to confer standing.[12] By contrast, they claim that none of the plaintiffs in Barber alleged such a concrete injury-in-fact.

The Supreme Court, however, has been willing to hunt for injuries where they might not be immediately apparent. In Regents of the University of California v. Bakke,[13] for example, the court overlooked the lack of any concrete evidence that Bakke had been denied admission based on his race. Instead, it found that “the University’s decision not to permit Bakke to compete for all 100 places in the class, simply because of his race” was sufficient for Article III standing.[14]

This principle naturally extends, for example, to two Barber plaintiffs: an engaged same-sex couple who had not yet married. Just as Bakke was not required to prove directly that he was denied admission based on his race, so too should this couple not be required to prove that they will be denied a marriage license because they are a same-sex couple; the mere fact that HB 1523 will effectively deny them access to a marriage license from some number of judges and clerks in the state should be injury enough. The Supreme Court’s willingness to reach the merits in Fisher v. University of Texas[15] suggests that they should be willing to find standing in this type of case.

Whether on these or other grounds, the Supreme Court should overturn the Fifth Circuit’s decision and reinstate the District Court’s injunction. HB 1523 is a clearly unconstitutional affront to the civil rights of Mississippi’s LGBT residents. Unless struck down it could serve as a blueprint for similar legislation across the country.

[1] 2016 Miss. Law HB 1523.

[2] 135 S. Ct. 2584 (2015).

[3] 193 F. Supp. 3d 677 (S.D. Miss 2016).

[4] Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017).

[5] Barber v. Bryant, 2017 U.S. App. LEXIS 19008 (5th Cir. Sep. 29, 2017).

[6] 2016 Miss. Law HB 1523 § 2.

[7] 2016 Miss. Law HB 1523 § 4.

[8] 530 U.S. 290 (2000).

[9] Id. at 309–10 (internal quotation marks omitted).

[10] Id. at 314.

[11] 670 F.3d 1111, 1120–24 (10th Cir. 2012).

[12] Awad, 670 F.3d at 1123–24.

[13] 438 U.S. 265 (1978).

[14] Id. at 281 n.14. Similar cases where the Supreme Court was willing to dig deeper for injuries include Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) and Adarand Constructors, Inc.v. Pena, 515 U.S. 200 (1995), both cases where non-minority contractors were found to have standing to challenge the constitutionality of government contracts that gave preference to minority businesses, despite failing to establish that they would have been awarded the contracts had race not been a factor. One need not believe in the merits of these and other anti-affirmative action cases to recognize that their standing arguments were successful.

[15] 136 S. Ct. 2198 (2016).