in the united states court of appeals for the fifth circuit

407 Pages·2016·1.73 MB·English

Case: 16-60478 Document: 00513608084 Page: 1 Date Filed: 07/25/2016
No. 16-60478
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY and SUSAN HROSTOWSKI,
Plaintiffs-Appellees,
v.
PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; and JOHN
DAVIS, in his official capacity as Executive Director of the Mississippi Department of Human
Services,
Defendants-Appellants,
On Appeal from the United States District Court for the
Southern District of Mississippi (Northern Division)
No. 3:16-cv-00442-CWR-LRA (Hon. Carlton Reeves)
Appellees’ Opposition to Appellants’ Motion to Stay
Preliminary Injunction Pending Appeal And Motion for
Expedited Consideration
Roberta A. Kaplan Alysson Mills
Joshua D. Kaye FISHMAN HAYGOOD, LLP
PAUL, WEISS, RIFKIND, 201 St. Charles Avenue, Suite 4600
WHARTON & GARRISON LLP New Orleans, Louisiana 70170
1285 Avenue of the Americas Telephone: [phone]
New York, New York 10019 Facsimile: [phone]
Telephone: [phone] [email protected]
Facsimile: [phone]
[email protected]
[email protected]

Dale Carpenter
SMU DEDMAN SCHOOL OF LAW
3315 Daniel Avenue
Dallas, Texas 75205
Telephone: [phone]
Facsimile: [phone]
[email protected]

Attorneys for Plaintiffs-Appellees
Case: 16-60478 Document: 00513608084 Page: 2 Date Filed: 07/25/2016
No. 16-60478
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY and SUSAN HROSTOWSKI,
Plaintiffs-Appellees,
v.
PHIL BRYANT, in his official capacity as Governor of the State of Mississippi;
and JOHN DAVIS, in his official capacity as Executive Director of the Mississippi
Department of Human Services,
Defendants-Appellants,
CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of the case. These representations are made in order that the judges of
this Court may evaluate possible disqualification or recusal.
1. Campaign for Southern Equality, Plaintiff-Appellee. Campaign for
Southern Equality is a North Carolina non-profit corporation with no parent
corporation. No publicly held company owns ten percent or more of the Campaign
for Southern Equality’s stock.
2. Susan Hrostowski, Plaintiff-Appellee.
3. Paul, Weiss, Rifkind, Wharton & Garrison LLP, Counsel for all
Plaintiffs-Appellees (Roberta A. Kaplan and Joshua D. Kaye representing).
4. Dale Carpenter, Counsel for all Plaintiffs-Appellees.
Case: 16-60478 Document: 00513608084 Page: 3 Date Filed: 07/25/2016
5. Fishman Haygood, LLP, Counsel for all Plaintiffs-Appellees (Alysson
Mills representing).
6. Phil Bryant, in his official capacity as the Governor of the State of
Mississippi, Defendant-Appellant.
7. John Davis, in his official capacity as Executive Director of the
Mississippi Department of Human Services, Defendant-Appellant.
8. John Otis Law Group, LLC, Counsel for Defendant-Appellants Phil
Bryant and John Davis (Jonathan F. Mitchell and D. John Sauer representing).
9. Alliance Defending Freedom, Counsel for Defendant-Appellants Phil
Bryant and John Davis (James A. Campbell representing).
10. Drew L. Snyder, Counsel for Defendant-Appellant Phil Bryant.
Respectfully submitted,
/s/ Roberta A. Kaplan
Roberta A. Kaplan

Attorney of Record for Plaintiffs- Appellees
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Defendant-Appellants Governor Phil Bryant and John Davis (“Appellants”)
ask this Court to disrupt the status quo and order that House Bill (“HB”) 1523 go
into effect while this Court hears the merits of this appeal of the district court’s
order below.
STATEMENT OF THE CASE
The First Amendment of the United States Constitution and Mississippi’s
Religious Freedom Restoration Act passed in 2014, Miss. Code Ann. § 11-61-1
(“RFRA”), already fully protect all Mississippians’ rights to believe what they
choose and to practice their religions accordingly. Not content with treating all
religious believers the same, the State of Mississippi enacted HB 1523, a law that
bestows a broad array of special protections only upon people who adhere to one
of the following three “religious beliefs”: (1) “Marriage is or should be recognized
as the union of one man and one woman,” (2) “Sexual relations are properly
reserved to such a marriage,” and (3) “Male (man) or female (woman) refer to an
individual’s immutable biological sex as objectively determined by anatomy and
genetics at time of birth” (collectively, the “§ 2 Religious Beliefs”). HB 1523 § 2.
Among other things, HB 1523 purports to permit Mississippi officials and
employees to deny marriage licenses to gay and lesbian couples and to advocate in
favor of the § 2 Religious Beliefs while performing their official duties. Id.
§§ 3(7), 3(8)(a). It bars government and even private plaintiffs from taking any
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action against individuals and businesses who invoke a § 2 Religious Belief to
deny “psychological” and “counseling” services to lesbian, gay, bisexual, and
transgender (“LGBT”) people, as well as a litany of goods and services, including
but not limited to “jewelry sales,” “floral arrangements,” or “car-service rentals.”
See id. §§ 3(4), 3(5), 9(2), 9(3).
While the public accommodations that can be denied to LGBT people under
HB 1523 are supposedly limited to those that relate to the “solemnization,
formation, celebration, or recognition of any marriage,” §3(5), the statute is
worded so broadly that it could apply not just to wedding ceremonies, but also to
almost any business that serves gay or lesbian couples. A restaurant, for
instance—a paradigmatic place of public accommodation—could refuse to seat a
married lesbian couple at a table for two if its owner perceived the couple’s dinner
date to be a “celebration” or “recognition” of their marriage.
HB 1523’s scope is further magnified by the fact that it gives holders of the
§ 2 Religious Beliefs—and no one else—absolute and unqualified rights without
regard for (1) whether their free exercise of religion would have been burdened,
and (2) the harms these absolute accommodations will impose on others. As
Appellees’ expert testified at the hearing in the district court, HB 1523 is the only
statute of its kind that both officially enshrines three specific religious beliefs into
state law and gives religious believers an automatic exemption from otherwise
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generally applicable laws or practices. Hr’g Tr. Vol. 1 64:22–65:7, 80:24–87:7
(June 23, 2016) (attached as App. A).
After reviewing the parties’ briefs and conducting a two-day hearing, the
district court enjoined the enforcement of HB 1523, finding that it violates the
Establishment Clause by creating religious preferences that impermissibly burden
third parties and discriminate among religious sects. Barber v. Bryant, No. 3:16-
cv-417-CWR-LRA, slip op. at 2 (S.D. Miss. June 30, 2016) (hereinafter, “slip
op.”).
Unable to defend HB 1523 as written, Appellants now mischaracterize it as
“carefully crafted and exceedingly limited in scope.” Stay Br. at 4. But HB 1523
is not a modest statute that merely reinforces the existing First Amendment right of
all Americans not to be coerced into participating in religious practices inconsistent
with their faith. Not only does HB 1523 go so far as to single out three specific
religious beliefs for official State endorsement, but it permits (even encourages)
discrimination in a wide variety of circumstances ranging from public
accommodations to mental health care.
If HB 1523 were to go into effect for any length of time, the practical and
dignitary consequences for LGBT people in Mississippi would be devastating. To
give an example, at the hearing in the district court, Joce Pritchett, a lesbian and
lifelong Mississippian, shared harrowing experiences—for example, that gay men
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in Northern Mississippi have, since HB 1523 was enacted, become afraid to go out
to dinner together. Hr’g Tr. Vol. 1 204:18–205:4 (June 23, 2016). She further
testified that, after HB 1523 was enacted, the six-year old daughter of her friends
was shamed by her public school teacher in the classroom simply for having
married lesbian parents. Id. at 205:11–207:18.
Indeed, HB 1523 is completely unlike the other statutes that Appellants
focus on in their moving papers relating to the draft or abortion, see Stay Br. at 1–
3, 5, 9–15, because unlike those statutes, it was enacted without any neutral or
secular purpose. Targeted exemptions for pacifists from the draft or for medical
professionals unwilling to perform abortions do not facially discriminate on the
basis of specific religions or religious beliefs and are narrowly tailored to serve
important government interests. HB 1523, on the other hand, singles out and
endorses the three § 2 Religious Beliefs for the sole purpose of promoting the
exercise of those specific religious beliefs above all others, at the expense of the
dignity of LGBT Mississippians.
STANDARD OF REVIEW
“The parties and the public, while entitled to both careful review and a
meaningful decision, are also generally entitled to the prompt execution of”
judgments. Nken v. Holder, 556 U.S. 418, 427 (2009). Because a “stay is an
intrusion into the ordinary processes of administration and judicial review,” a party
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“is not entitled to a stay as a matter of right.” Campaign for S. Equal. v. Bryant,
773 F.3d 55, 57 (5th Cir. 2014) (quoting Nken, 556 U.S. at 427). Rather, the party
“requesting a stay,” must “bear[] the burden of showing that the circumstances
justify an exercise of [this Court’s] discretion.” Nken, 556 U.S. at 433. In
exercising that discretion, this Court considers the following four factors: “(1)
whether the stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.” Texas v. United States,
787 F.3d 733, 746–47 (5th Cir. 2015) (internal quotation marks omitted).1
I. Appellants Have Failed to Make a Strong Showing on the Merits
Appellants have not made any showing, let alone a “strong showing,” that
each of the grounds on which the district court found HB 1523 violated the United
States Constitution are likely to be overturned on appeal. With respect to the

1 Appellants’ motion can and should be denied solely on the basis that Defendants have not
complied with Federal Rule of Appellate Procedure 8. See Ruiz v. Estelle, 650 F.2d 555, 567
(5th Cir. Unit A June 1981). On July 7, Governor Bryant filed a motion to stay with the
district court. Opposition to that motion was not due until July 21. Nevertheless, just four
days after filing that motion, Governor Bryant filed this motion. In so doing, Governor
Bryant failed to comply with Fed. R. App. P. 8, which requires the movant to show “that
moving first in the district court would be impracticable,” or that “the district court denied
the motion.” Fed. R. App. P. 8(a)(2)(A). Appellants obviously cannot show that moving
first in the district court would be “impracticable” since they did move for a stay in the
district court. Mot. to Stay Prelim. Inj. Pending Appeal (ECF No. 42). Nor can Appellants
show that the district court “denied the motion or failed to afford the relief requested” since
Judge Reeves has not yet had a chance to rule on their motion to stay.
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Establishment Clause,2 the district court found that HB 1523 “violates the First
Amendment because its broad religious exemption comes at the expense of other
citizens.” Slip op. at 55. It further held that HB 1523 “clearly grants
denominational preferences of the sort consistently and firmly deprecated in
[Supreme Court] precedents” and thus cannot withstand strict scrutiny. Slip op. at
52–54 (quoting Larson v. Valente, 456 U.S. 228, 246–47 (1982)). The district
court also held that HB 1523 “was not motivated by any clearly secular purpose—
indeed, the statute had no secular purpose.” Slip op. at 53 n.43 (quoting Wallace v.
Jaffree, 472 U.S. 38, 56 (1985)). See also Lemon v. Kurtzman, 403 U.S. 602, 612
(1971) (requiring all laws to “have a secular legislative purpose”).
Appellants’ only response to the district court’s finding that the religious
exemptions in HB 1523 come at the expense of other citizens is to mischaracterize
HB 1523, disregard settled jurisprudence, and misstate the record. Although
Appellants dismiss the need for this Court to consider those who do not subscribe
to the § 2 Religious Beliefs, binding precedent on this Court places such
consideration at the very heart of any Establishment Clause analysis.
1. HB 1523 Violates Thornton v. Caldor
In Estate of Thornton v. Caldor, the United States Supreme Court held that a
statute which “arms [believers] with an absolute and unqualified right” that “would

2 Because the CSE Plaintiffs only brought claims under the Establishment Clause, they only
discuss the portion of the district court’s order relating to those claims.
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require the imposition of significant burdens on” third parties impermissibly
advances religion in violation of the Establishment Clause. 472 U.S. 703, 708–10
(1985). Thornton has never been called into question by the Supreme Court and
remains good law. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 722 (2005) (“Our
decisions indicate that [a religious] accommodation must be measured so that it
does not override other significant interests.” (citing Thornton, 472 U.S. at 709)).
Applying Thornton here, the district court held that HB 1523 violates the
Establishment Clause because it “gives persons with § 2 beliefs an absolute right to
refuse service to LGBT citizens without regard for the impact on their employer,
coworkers, or those being denied service.” Slip op. at 56.3
In support of their argument, Appellants point only to the Gillette case,
which was decided over a decade before Thornton and which did not address the
question of burden. Stay Br. at 15 n.6 (citing Gillette v. United States, 410 U.S.
437 (1971)). But in fact, the differences between the incidental burden imposed on
others by the conscientious objectors in Gillette is markedly different than the
burden imposed by HB 1523. While the burden on other prospective draftees for
each person removed from the draft pool is an infinitesimally small increase in the

3 Appellants all but ignore this portion of the district court’s opinion. The entirety of their
response is buried in a footnote near the end of their brief, in which they argue that the
“district court also erred by holding that the Establishment Clause forbids religious
accommodations that have adverse impacts on third parties.” Stay Br. at 15 n.6. But this
statement is wholly inconsistent with Thornton and Cutter, which forbid religious
accommodations that impose burdens on third parties
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