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Overview

Update November 15, 2017: GLAD and NCLR filed a petition for the Court to grant cert in this case. The brief, written with Ropes & Gray, argues that argues that legislation authorizing public and private discrimination against LGBT people is prohibited class legislation and causes many harms from state endorsement, and can be challenged at any time. The Court has already made clear, through critical cases including Obergefell, that the Constitution guarantees the same liberty and dignity to everyone – including LGBT people.

On June 22, 2017, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit overturned a lower court ruling against HB 1523, “Protecting Freedom of Conscience from Government Discrimination Act,” saying that plaintiffs did not have standing to challenge the law. The Fifth Circuit did not rule on whether the law is itself constitutional.

The challengers have filed a petition for rehearing by the full Fifth Circuit. GLAD, NCLR and the ACLU filed an amicus brief July 13 in support of rehearing.

The unfair law – likely a harbinger of proposed laws to come in other states – would give a free pass to any individual, organization, or corporation choosing to discriminate in a wide variety of public and private settings based upon their asserted beliefs that marriage can only be between a man and a woman; that sex can only take place within such a marriage; and that one’s sex is determined at birth.

GLAD’s brief, written with Ropes & Gray, addresses equal protection issues, arguing that the law cannot allow discrimination based on one’s beliefs about a class of people. We also state that this law goes far beyond what conscience-protecting laws have allowed in the past, and far beyond simple opposition to marriage equality. The National Center for Lesbian Rights (NCLR) and the ACLU also worked on the brief. The case was argued in the U.S. Court of Appeals for the Fifth Circuit.

Case Background

GLAD filed an amicus brief in the case Barber v. Bryant, one of two cases challenging Mississippi’s so-called “Protecting Freedom of Conscience from Government Discrimination Act.” The unfair law would give a free pass to any individual, organization, or corporation choosing to discriminate in a wide variety of public and private settings based upon their asserted beliefs that marriage can only be between a man and a woman; that sex can only take place within such a marriage; and that one’s sex is determined at birth.

This unprecedented law may be a harbinger of more to come in other states. It represents a dangerous paradigm shift. The law empowers those who religiously or morally oppose LGBTQ people or their marriages to act or speak against LGBTQ people with the approval of the government. GLAD’s brief, written with Ropes & Gray, addresses equal protection issues. We argue that the law cannot allow discrimination based on one’s beliefs about a class of people. We also state that this law goes far beyond what conscience-protecting laws have allowed in the past, and far beyond simple opposition to marriage equality. The National Center for Lesbian Rights (NCLR) and the ACLU also worked on the brief.

The Barber case also raises establishment clause issues, which other amici briefs address. A federal district court judge prevented the law from going into effect in the summer of 2016, and the State of Mississippi appealed that ruling to the U.S. Court of Appeals for the Fifth Circuit, where the amicus brief was filed.