Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit. (2009.) Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

The U.S. Court of Appeals for the Fifth Circuit has reversed a federal trial court’s decision halting the implementation of one the harshest anti-gay laws in the country, ruling that LGBT plaintiffs do not have standing to challenge a Mississippi measure that allows for discrimination based on a person’s religious beliefs.

In his decision, Judge Jerry Smith wrote that the plaintiffs could not prove they’d been injured by the law. The plaintiffs challenged the constitutionality of the new Mississippi statute, known as HB 1523, which dictates that state government shall not take any “discriminatory action” against those who deny employment, housing, or the placement of foster or adoptive children to LGBT people because of “religious beliefs of moral convictions.”

“None of these plaintiffs has clearly shown an injury-in-fact, so none has standing,” Smith wrote. “Under this current record, the plaintiffs have not shown and injury-in-fact caused by HB 1523 that would empower the district court or this court to rule on its constitutionality,” Smith added.



The background to the Fifth Circuit’s June 22 decision in Barber v. Bryant is as follows, according to the opinion.

The plaintiffs are Mississippi residents and includes religious leaders who do not agree with the law. They asserted LGBT residents are injured by the message HB 1523 sends: that Mississippi state government disapproves of them.

The plaintiffs claimed the law endorses specific religious beliefs in violation of the Establishment Clause and that it violates the Equal Protection Clause of the Fourteenth Amendment because it provides different protections for residents based on those beliefs.