Former Obama administration U.S. Solicitor General Donald Verrilli Jr. is returning to the U.S. Supreme Court for the first time since leaving government last year, advocating on behalf of the challengers to a Mississippi law that allows religious objectors to refuse services to gay, lesbian and transgender individuals.
Mississippi law HB 1523, considered one of the most extreme in the nation, specifically protects three religious beliefs: marriage only between a man and woman; sexual relations confined only to marriage; and sex as an innate, immutable characteristic assigned at birth.
Verrilli, head of the Washington office of Munger, Tolles & Olson, is counsel of record in Barber v. Bryant in the high court.
The petition, filed Tuesday, argues his clients have standing to challenge the Mississippi law in two ways. The Mississippi law, according to the petition, violates the establishment clause by endorsing religious opposition to same-sex spouses. And the challengers contend the state law violates the equal protection clause by “bestowing legal privileges only on those individuals who subscribe to HB 1523’s state-endorsed religious and moral beliefs.”
The case originally was brought by Mississippi civil rights attorney Rob McDuff, the Mississippi Center for Justice and Lambda Legal. After winning an injunction blocking the law in federal district court, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit on June 22 reversed. The panel said the plaintiffs lacked standing to challenge the law because they had suffered no specific harm, since the law had yet to go into effect.
“Standing is not about who wins and who loses, but who has access to justice. HB 1523 goes into effect today, but our clients have been experiencing the ill effects of the law since it passed,” Beth Orlansky, advocacy director for the Mississippi Center for Justice, said in a statement Tuesday. “The Fifth Circuit’s decision is out of step with decisions in many other circuits and we are hopeful that the Supreme Court will grant review and provide clarity on this issue.”
The Barber case originally had been consolidated with another challenge—Campaign for Southern Equality v. Bryant—brought by Roberta Kaplan of New York’s Kaplan & Company. Kaplan, formerly of Paul, Weiss, Rifkind, Wharton & Garrison, was a winning attorney in the landmark challenge to the federal Defense of Marriage Act—United States v. Windsor.
In the Barber high court petition, Verrilli is joined by Paul Smith, his former colleague at Jenner & Block who is now vice president for legal strategy at the Campaign Legal Center. Smith successfully argued Lawrence v. Texas, in which the high court struck down criminal sodomy laws. Verrilli’s Munger Tolles team includes appellate lawyer Ginger Anders and Adele El-Khouri, a litigation associate, both in the firm’s Washington office.
Given the briefing schedule in the high court, there is a strong possibility the justices will take their first look at the petition before the mid-January cutoff for adding new cases to the current term.
The justices have already agreed to decide one major case involving religion and anti-discrimination laws protecting the gay community—Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be argued in December. The justices also have pending Evans v. Georgia, a case from the Eleventh Circuit that confronts the scope of workplace discrimination protections for LGBT employees.
Verrilli, who left the U.S. solicitor general’s office in June 2016, is restricted from participating in Supreme Court cases in which the U.S. Justice Department represents the United States or a federal agency as a party. That ethical limitation expires next June.