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Ropes & Gray Attorneys Submit Amicus to U.S. Supreme Court Seeking to Strike Down Mississippi Anti-LGBT Statute

Tags: Pro Bono

Ropes & Gray filed an amicus curiae brief in the Supreme Court of the United States on behalf of GLBTQ Legal Advocates and Defenders and the National Center for Lesbian Rights in Barber v. Bryant, No. 17-547, in support of a petition seeking review of claims that a Mississippi statute (“HB 1523”) unconstitutionally discriminates against LGBT persons.

HB 1523 sets forth three protected moral and religious beliefs—that marriage is or should be recognized as the union of one man and one woman, that sexual relations are properly reserved to such a marriage, and that gender is objectively and immutably assigned at birth—and forbids the Mississippi government and subdivisions thereof from taking “discriminatory action” against holders of those beliefs, defined as including, for example, any application of a penalty or injunction by the Mississippi courts to keep holders of those beliefs from singling others out for disparate treatment.

The petitioners filed a pre-enforcement challenge in the Southern District of Mississippi soon after the bill was passed, arguing that HB 1523 is class legislation that effectively facilitates unconstitutional anti-LGBT discrimination and should be struck down. The district court agreed, ruling that although HB 1523 purports to protect religious beliefs, the statute was intended to put LGBT Mississippians “back in their place” after the Court’s same-sex marriage decision in Obergefell v. Hodges, and enjoined the enactment and enforcement of HB 1523. The Fifth Circuit Court of Appeals reversed on appeal, finding that the petitioners lacked standing to sue because they failed to assert “anything more than a general stigmatic injury.” The Fifth Circuit also rejected petitioners’ motion for rehearing en banc, allowing HB 1523 to go into effect.

Ropes & Gray’s brief describes how HB 1523 undermines the rights to liberty and dignity that the Constitution guarantees to all, and which the Supreme Court has made clear in Obergefell and its predecessors must extend equally to LGBT persons. The brief also argues that Supreme Court review is necessary because the Fifth Circuit’s standing decision departs from the standing doctrine employed by other circuits and its own previous precedent, which recognize that the dignitary harms caused by discriminatory class-based legislation provide the standing necessary to sue under the Equal Protection Clause.

The Ropes & Gray team includes business & securities litigation partner Richard Batchelder, Jr. (Boston), business & securities litigation associates John McClain (New York) and Kristi Jobson (Boston), litigation associates Catherine Djang and Mary Zou (New York), and litigation paralegal coordinator Sophia Antzoulatos (Washington, D.C.).