Barber et al v. Bryant et al
Filing
54
ORDER denying 46 , 50 Motions to Stay Preliminary Injunction Pending Appeal. Signed by District Judge Carlton W. Reeves on 8/1/2016. (AC)
Case 3:16-cv-00417-CWR-LRA Document 54 Filed 08/01/16 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RIMS BARBER; CAROL BURNETT;
JOAN BAILEY; KATHERINE
ELIZABETH DAY; ANTHONY LAINE
BOYETTE; DON FORTENBERRY;
SUSAN GLISSON; DERRICK JOHNSON;
DOROTHY C. TRIPLETT; RENICK
TAYLOR; BRANDIILYNE MANGUMDEAR; SUSAN MANGUM; JOSHUA
GENERATION METROPOLITAN
COMMUNITY CHURCH; CAMPAIGN
FOR SOUTHERN EQUALITY; and
SUSAN HROSTOWSKI
PLAINTIFFS
CAUSE NO. 3:16-CV-417-CWR-LRA
and
CAUSE NO. 3:16-CV-442-CWR-LRA
V.
PHIL BRYANT, Governor; JIM HOOD,
Attorney General; JOHN DAVIS, Executive
Director of the Mississippi Department of
Human Services; and JUDY MOULDER,
State Registrar of Vital Records
DEFENDANTS
ORDER
Before the Court are motions to stay filed by Governor Phil Bryant and Department of
Human Services Executive Director John Davis. The motions are fully briefed and ready for
review.1
I.
Background
These cases present a constitutional challenge to House Bill 1523, a new Mississippi law
which would have gone into effect on July 1, 2016 had this Court not issued a preliminary
injunction. The Memorandum Opinion granting the injunction found that the plaintiffs were
substantially likely to succeed on their claims that HB 1523 violates the First and Fourteenth
1
The movants filed a rebuttal only in No. 3:16-cv-442. Their argument will be carried over into No. 3:16-cv-417 as
if it was dual-filed.
Case 3:16-cv-00417-CWR-LRA Document 54 Filed 08/01/16 Page 2 of 6
Amendments to the United States Constitution. The other factors of the preliminary injunction
standard, including the public interest inherent in stopping an HB 1523-inspired economic
boycott of this State, all supported enjoining the bill and maintaining the status quo.
The movants filed notices of appeal and motions to stay pending the outcome of their
appeal. Two business days later, however, before any response was due, they filed their motions
to stay in the United States Court of Appeals for the Fifth Circuit.
It is not clear that that procedure was correct, see Ruiz v. Estelle, 650 F.2d 555, 566 (5th
Cir. 1981), but it is in no one’s interest to engage in motion practice on that issue or delay the
resolution of this case for a limited remand. The Court has accordingly expedited its review of
the motions to stay. It now denies them and passes the baton to the Court of Appeals.
II.
Law
The legal standard is well-established:
We consider four factors in deciding a motion to stay pending appeal: (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. The first two factors . . . are
the most critical.
Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (quotation marks and citation omitted). “A
stay is an intrusion into the ordinary processes of administration and judicial review, and
accordingly is not a matter of right, even if irreparable injury might otherwise result to the
appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (quotation marks and citation omitted).
“There is substantial overlap between these and the factors governing preliminary
injunctions; not because the two are one and the same, but because similar concerns arise
whenever a court order may allow or disallow anticipated action before the legality of that action
has been conclusively determined.” Id. at 434 (citation omitted).
2
Case 3:16-cv-00417-CWR-LRA Document 54 Filed 08/01/16 Page 3 of 6
“[T]he movant need not always show a ‘probability’ of success on the merits; instead, the
movant need only present a substantial case on the merits when a serious legal question is
involved and show that the balance of the equities weighs heavily in favor of granting the stay.”
Ruiz, 650 F.2d at 565 (citations omitted).
III.
Discussion
A.
Strong Showing of Success on the Merits
The movants first argue that (1) the plaintiffs lack standing; (2) HB 1523 is akin to
federal exemption laws protecting pacifists and abortion opponents; and (3) the Court should
have severed discrete portions of the bill. None of these reasons present a strong showing that
movants are likely to succeed on the merits of their appeal.
The plaintiffs have standing to bring their Equal Protection claim under the Supreme
Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). In that case, the plaintiffs were
permitted to challenge an anti-LGBT Colorado law that “would subject them to immediate and
substantial risk of discrimination on the basis of their sexual orientation.” 517 U.S. at 625
(emphasis added). Evidence adduced at a two-day hearing shows that the same is true here. In
particular, several plaintiffs live and work in the City of Jackson, which will no longer be able to
enforce its anti-discrimination ordinance. And movants seem unaware that one of the plaintiffs
works at the University of Southern Mississippi,2 which also will be unable to enforce its antidiscrimination policy if HB 1523 goes into effect.3
Precedent also confirms that the plaintiffs have standing to bring their Establishment
Clause claim. In Croft v. Governor of Texas, the Fifth Circuit held that a public school’s moment
of silence was sufficiently injurious to confer standing, notwithstanding the State’s argument that
2
This may be because, even though the record has been prepared, the appellants did not attend the two-day
evidentiary hearing, and are now represented by different counsel who also did not attend the hearing.
3
The University of Mississippi and Mississippi State University have similar policies.
3
Case 3:16-cv-00417-CWR-LRA Document 54 Filed 08/01/16 Page 4 of 6
a moment of silence was not a “specific injury.” 562 F.3d 735, 745 (5th Cir. 2009). And in Van
Orden v. Perry, 545 U.S. 677, 682 (2005), the plaintiff had standing to challenge the display of a
Ten Commandments monument on public property. See Van Orden v. Perry, No. A-01-CA-833H, 2002 WL 32737462, at *2 (W.D. Tex. Oct. 2, 2002), aff’d, 351 F.3d 173 (5th Cir. 2003),
aff’d, 545 U.S. 677 (2005) (“In light of the very liberal interpretation which the courts have
given to the concept of standing in Establishment Clause cases, the Court finds that Plaintiff Van
Orden has succeeded in crossing the threshold and demonstrating his standing to bring this
suit.”); see also Am. Civil Liberties Union of Mississippi v. Mississippi State Gen. Servs. Admin.,
652 F. Supp. 380, 382 (S.D. Miss. 1987) (finding that City of Jackson residents had standing to
challenge “offensive” illuminated cross on state office building located in Jackson). It is difficult
to see why a person has standing to challenge a moment of silence or a monument, but somehow
does not have standing to challenge a law which tangibly and materially affects his or her legal
rights. There simply is no standing defect in this case.
Second, as the Court’s Memorandum Opinion laid out, HB 1523 is not like federal laws
which permit persons to opt-out of going to war or performing abortions. See Gillette v. United
States, 401 U.S. 437 (1971). In addition, issuing a marriage license to a gay couple is not like
being forced into armed combat or to assist with an abortion. Matters of life and death are sui
generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker
with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the
marriage equality cases. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J.,
dissenting).
Even if the Gillette argument was a strong showing of success on the merits, however,
movants have not presented any argument challenging the Court’s other Establishment Clause
4
Case 3:16-cv-00417-CWR-LRA Document 54 Filed 08/01/16 Page 5 of 6
finding. A separate line of cases indicates that HB 1523 is unconstitutional because its exemption
would impose significant burdens on other citizens and entities.4 See Estate of Thornton v.
Caldor, 472 U.S. 703, 704-05 (1985). That is an independent constitutional violation meriting
denial of a stay.
Lastly, HB 1523 did not qualify for severance. Every section of the bill explicitly
incorporated § 2. Since § 2 was enjoined, the entire bill was rendered inoperable. Movants’
theory may apply in the future, though, depending on the appellate court’s ruling and reasoning.
For these reasons, the movants have not made a strong showing of success on the merits.
B.
The Remaining Factors
The movants’ arguments on factors two, three, and four run less than a page and may be
resolved in short order.
Although the movants contend that they are being irreparably injured because Mississippi
cannot enforce HB 1523, enjoining this particular piece of legislation results in no injury to the
State or its citizens. A Mississippian – or a religious entity for that matter – holding any of the
beliefs set out for special protection in § 2 may invoke existing protections for religious liberty,
including Mississippi’s Constitution, Mississippi’s Religious Freedom Restoration Act, and the
First Amendment to the United State Constitution. HB 1523’s absence does not impair the free
exercise of religion.
The movants next claim that a stay will not substantially injure the plaintiffs. The claim is
inconsistent with the hearing testimony. As the above standing discussion suggests, and the
4
Gillette’s facts cannot be stretched to paper over this finding. There, the conscientious objector statute helped save
military lives by ensuring that soldiers would not be deserted in the field by a pacifist who put down his arms in the
heat of battle. See Gillette, 401 U.S. at 453. Allowing conscientious objectors was a win-win: good for soldiers and
good for conscientious objectors. HB 1523 is different. Allowing people to opt-out of serving LGBT citizens comes
at the expense of LGBT citizens. The objector and only the objector “wins,” while her employer, her colleagues, and
the persons discriminated against have to deal with the consequences of her decision.
5
Case 3:16-cv-00417-CWR-LRA Document 54 Filed 08/01/16 Page 6 of 6
Memorandum Opinion explains, HB 1523 is injurious to the plaintiffs and many other
Mississippians.
The final element asks whether the public interest is served by a stay. It is not. In this
case the public interest is better served by maintaining the status quo – a Mississippi without HB
1523. To the extent the preliminary injunction will help alleviate the damage wrought on this
State by an HB 1523-caused economic boycott, moreover, that too supports denying a stay of the
injunction.
IV.
Conclusion
The motions are denied. The baton is now passed.
SO ORDERED, this the 1st day of August, 2016.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?