Amicus Curiae Brief — Campaign for Southern Equality, et al., Petitioners v. Phil Bryant, Governor of Mississippi, et al.

Nos. 17-547, 17-642

IN THE

Supreme Court of the United States

_______________

RIMS BARBER, et al.,

v.

Petitioners,

PHIL BRYANT, GOVERNOR OF MISSISSIPPI, et al.,

Respondents.

_______________

CAMPAIGN FOR SOUTHERN EQUALITY, et al.,

Petitioners,

v.

PHIL BRYANT, GOVERNOR OF MISSISSIPPI, et al.,

Respondents.

_______________

On Petitions For Writs Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

_______________

BRIEF OF CHURCH-STATE SCHOLARS

AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

_______________

Roy T. Englert, Jr.

Counsel of Record

Daniel N. Lerman

ROBBINS, RUSSELL, ENGLERT,

ORSECK, UNTEREINER &

SAUBER LLP

1801 K Street, NW, Suite 411-L

Washington, D.C. 20006

(202) 775-4500

renglert@robbinsrussell.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 5

I.

STANDING IN ESTABLISHMENT

CLAUSE CASES DEPENDS ON

ALLEGING INJURIES AGAINST

WHICH THE CLAUSE PROTECTS,

AND PETITIONERS HAVE DONE

SO HERE ...................................................... 5

II.

HB

1523

VIOLATES

THE

ESTABLISHMENT CLAUSE AND

INJURES PERSONS WHO DO NOT

ADHERE TO THE RELIGIOUS

BELIEFS ENUMERATED IN THE

STATUTE ................................................... 16

CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) ................................................ 7

Awad v. Ziriax,

670 F.3d 1111 (10th Cir. 2012) ............................ 15

Bd. of Educ. of Kiryas Joel Village Sch.

Dist. v. Grumet,

512 U.S. 687 (1994) .............................................. 21

Catholic League for Religious & Civil Rights

v. City of San Francisco,

624 F.3d 1043 (9th Cir. 2010) ...................... 2, 9, 16

Corp. of the Presiding Bishop v. Amos,

483 U.S. 327 (1987) .............................................. 17

Cty. of Allegheny v. ACLU Greater

Pittsburgh Chapter,

492 U.S. 573 (1989) .................................... 9, 10, 13

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................... 5, 22, 23

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ................................................ 7

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................ 9

Engel v. Vitale,

370 U.S. 421 (1962) ................................................ 6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Estate of Thornton v. Caldor, Inc.,

472 U.S. 703 (1985) .............................. 5, 22, 23, 24

Everson v. Bd. of Educ.,

330 U.S. 1 (1947) .................................................... 8

Flast v. Cohen,

392 U.S. 83 (1968) .................................................. 6

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

132 S. Ct. 694 (2012) ............................................ 21

Larson v. Valente,

456 U.S. 228 (1982) .......................................... 6, 21

Lee v. Weisman,

505 U.S. 577 (1992) ................................ 6, 8, 10, 13

Lynch v. Donnelly,

465 U.S. 668 (1984) .......................................... 3, 12

McCreary Cty. v. ACLU of Ky.,

545 U.S. 844 (2005) .......................................... 8, 17

Mitchell v. Helms,

530 U.S. 793 (2000) ................................................ 9

Moss v. Spartanburg County Sch. Dist.

Seven,

683 F.3d 599 (4th Cir. 2012) ................................ 15

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Presbyterian Church in U.S. v. Mary

Elizabeth Blue Hull Mem’l Presbyterian

Church,

393 U.S. 440 (1969) .............................................. 21

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ........................ 3, 10, 11, 12, 19

Suhre v. Haywood Cty.,

131 F.3d 1083 (4th Cir. 1997) ................................ 6

Tex. Monthly, Inc. v. Bullock,

489 U.S. 1 (1989) .................................................. 19

Torcaso v. Watkins,

367 U.S. 488 (1961) .............................................. 21

Town of Greece v. Galloway,

134 S. Ct. 1811 (2014) ................................ 3, 12, 20

Wallace v. Jaffree,

472 U.S. 38 (1985) ................................................ 18

Statute

Miss. Code Ann. § 11-62-1 et seq. (2016) .................. 14

Other Authorities

Carl H. Esbeck, The Establishment Clause

as a Structural Restraint: Validations

and Ramifications,

18 J.L. & Pol. 445 (2002) ................................... 6, 7

v

TABLE OF AUTHORITIES—Continued

Page(s)

Ira C. Lupu & Robert W. Tuttle, Ball on a

Needle: Hein v. Freedom from Religion

Foundation, Inc. and the Future of

Establishment Clause Adjudication,

2008 B.Y.U. L. Rev. 115 (2008) ................. 5, 6, 8, 9

James Madison, Memorial and

Remonstrance Against Religious

Assessments (1785) .............................................. 21

BRIEF OF CHURCH-STATE SCHOLARS

AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

_________________

INTEREST OF THE AMICI CURIAE1

Amici are professors of law with expertise in

church-state issues, religious freedom, and the

Religion Clauses. Their legal expertise bears directly

on the issues before this Court. Amici submit this

brief to show that HB 1523 injures Petitioners, that

Petitioners have standing to challenge HB 1523, and

that this important case is suitable for review by this

Court.

Amici include (institutional affiliations provided

for identification purposes only):



Caroline Mala Corbin, Professor

University of Miami School of Law;



Ira C. Lupu, F. Elwood and Eleanor Davis

Professor Emeritus of Law, The George

Washington University School of Law;



Micah J. Schwartzman, Joseph W. Dorn Research

Professor of Law, University of Virginia School of

Law;

of

Law,

1 Petitioners and Respondents received notice at least 10 days

before the due date of the intention of amici to file this brief and

have consented to the filing of this brief. No counsel for a party

wrote this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than the amici

curiae or their counsel made a monetary contribution intended

to fund its preparation or submission.

2



Richard C. Schragger, Perre Bowen Professor of

Law and Joseph C. Carter, Jr. Research Professor

of Law, University of Virginia School of Law;



Elizabeth Sepper, Professor of Law, Washington

University School of Law;



Nelson Tebbe, Professor of Law, Cornell Law

School; and



Robert W. Tuttle, David R. and Sherry Kirschner

Berz Research Professor of Law and Religion, The

George Washington University School of Law.

SUMMARY OF ARGUMENT

I.

Standing in Establishment Clause cases

depends on alleging injuries against which the

Clause protects. The Establishment Clause both

guarantees individual rights and serves as a

structural restraint on government. This Court has

therefore granted standing in Establishment Clause

cases to plaintiffs who have alleged public or

psychological harms that likely would not be

cognizable in some other types of cases. For decades,

the lower courts have followed that lead.

In this case, the Fifth Circuit held that

Petitioners lacked standing to challenge HB 1523—

Mississippi’s law protecting adherents of specific

religious beliefs regarding marriage, sexuality,

sexual orientation, and gender—because they did not

“personally confront” the statute. Barber Pet. App.

9a-10a.

Under that reasoning, however, a

“resolution declaring Catholicism to be the official

religion of the [Nation] would be effectively

unchallengeable.” Catholic League for Religious &

3

Civil Rights v. City of San Francisco, 624 F.3d 1043,

1048 (9th Cir. 2010). That cannot be the law.

Fortunately, it is not. The nature of the injury

against which the Establishment Clause protects

informs the standing analysis. Accordingly, as this

Court has explained, “the mere passage” of a law

that “has the purpose and perception of government

establishment of religion” inflicts a constitutional

injury. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 314 (2000). Recognizing standing for those who

suffer stigmatic injury from the passage of a law that

effects a constitutionally forbidden “establishment” is

necessary to give full effect to the Clause’s structural

restraints on government.

Petitioners allege injuries that this Court has

recognized.

Petitioners contend that HB 1523

endorses religious beliefs that conflict with their own

and that HB 1523’s special protection of those beliefs

impermissibly sends a message that they are

“outsiders, not full members of the political

community.” Santa Fe, 530 U.S. at 309-10 (quoting

Lynch v. Donnelly, 465 U.S. 668, 688 (1984)

(O’Connor, J., concurring)). They also allege that, by

extending its protections only to those who share its

favored religious beliefs, HB 1523 “denigrate[s]” all

other religious beliefs relating to marriage, sexuality,

sexual orientation, and gender as unworthy of equal

treatment. Town of Greece v. Galloway, 134 S. Ct.

1811, 1823 (2014). Those and other harms suffered

by Petitioners are cognizable, irrespective of whether

Petitioners “personally confront” HB 1523.

In any event, Petitioners do “personally confront”

HB 1523. They confront it when they read it on their

computers or on paper. And they confront it because

4

HB 1523 reflects the State’s official policy and

governs all its citizens’ behavior. In that sense it

inflicts a greater injury on Petitioners than allowing

a religious display on state property. Indeed, the

Fourth, Ninth, and Tenth Circuits have all held that,

for standing purposes, plaintiffs do come into

“contact” with a law that impermissibly promotes or

disparages religion. The decision below creates a

split with those circuits and adopts a doctrine with

such widespread and pernicious implications that it

warrants review by this Court.

II. The importance of this case is magnified

because the standing holding insulates from review a

plainly unconstitutional statute. HB 1523 violates

the Establishment Clause, and injures Petitioners, in

four related ways. First, it impermissibly promotes a

particular set of religious beliefs—namely, the

specific beliefs about marriage, sexuality, sexual

orientation, and gender enumerated in (and

protected by) the statute. And it does so even though

Respondents themselves do not believe that HB 1523

is necessary to lift any existing free-exercise burden.

Second, HB 1523 endorses the enumerated religious

beliefs, and disparages non-adherents. It therefore

creates distinct classes of insiders and outsiders

based solely on their religious belief, and thereby

fractures the polity along religious lines. Third, HB

1523 discriminates on the basis of religious belief

and picks favorites by placing the State’s imprimatur

on a set of orthodoxies shared by some religious

groups, but not others. HB 1523 is essentially a

creedal statement masked as an accommodation.

Finally, HB 1523 shifts unreasonable hardships

to third parties. Religious accommodations that do

5

so violate the constitutional principles laid down in

Estate of Thornton v. Caldor, Inc., 472 U.S. 703

(1985), and Cutter v. Wilkinson, 544 U.S. 709 (2005).

Because HB 1523 affords protections to a virtually

unlimited array of acts that are consistent with the

enumerated religious beliefs, it burdens third parties

in multiple ways.

HB 1523 also protects the

religious beliefs listed in the statute without

requiring courts even to consider the burdens placed

on third parties. HB 1523 violates the Establishment Clause and inflicts concrete, cognizable injuries

on Petitioners.

By allowing HB 1523 to go into effect, the Fifth

Circuit’s opinion will unleash religious strife and

suppression in Mississippi—and invite other

religious groups, in Mississippi and elsewhere, to

lobby for their own religious beliefs to be enshrined

in law. This Court’s review is necessary to vindicate

principles of religious liberty.

ARGUMENT

I. STANDING IN ESTABLISHMENT CLAUSE

CASES

DEPENDS

ON

ALLEGING

INJURIES AGAINST WHICH THE CLAUSE

PROTECTS, AND PETITIONERS HAVE

DONE SO HERE

1. The Establishment Clause occupies a unique

role within the Bill of Rights because it

simultaneously guarantees individual rights and

serves as a structural restraint on governments.2

2 See Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein v.

Freedom from Religion Foundation, Inc. and the Future of

Establishment Clause Adjudication, 2008 B.Y.U. L. Rev. 115,

6

The individual rights protected by the Clause

include, for example, the right to be free from

religious coercion by the government.

Lee v.

Weisman, 505 U.S. 577, 587 (1992). The structural

restraints imposed by the Clause include its

prohibition on the establishment of a state religion or

of government preference for one religious sect over

another. Larson v. Valente, 456 U.S. 228, 246 (1982).

Such policies divide the community along religious

lines.3

This Court has recognized that the “various rules

of standing” have “been fashioned with specific

reference to the status asserted by the party whose

standing is challenged and to the type of question he

wishes to have adjudicated.” Flast v. Cohen, 392

U.S. 83, 101 (1968). “[T]he standing inquiry in

Establishment Clause cases,” in particular, “has

been tailored to reflect the kind of injuries

Establishment Clause plaintiffs are likely to suffer.”

Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir.

1997); see Lupu & Tuttle, supra, 2008 B.Y.U. L. Rev.

at 120 (describing the relationship between the

substance of the Establishment Clause and the

justiciability of claims arising under the Clause).

Because the Establishment Clause protects

against structural harms in addition to individual

133-34 (2008); Carl H. Esbeck, The Establishment Clause as a

Structural Restraint: Validations and Ramifications, 18 J.L. &

Pol. 445, 453-57 (2002).

3 Structural restraints also include a prohibition on government

authorship of prayers.

(1962).

Engel v. Vitale, 370 U.S. 421, 425

7

harms, this Court has granted standing in

Establishment Clause cases to plaintiffs who have

alleged “public” injuries that likely would not be

cognizable in some other types of cases.

For

example, taxpayers and mere observers have

standing in certain Establishment Clause cases,

despite sharing their injury with the public at large.

Flast v. Cohen articulated an exception to the

general rule against taxpayer standing.

That

exception is narrow, see Ariz. Christian Sch. Tuition

Org. v. Winn, 563 U.S. 125, 138 (2011), but it

remains unique to the Establishment Clause, see

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347

(2006). The recognition of a distinctive type of

standing in Establishment Clause cases reflects the

unique types of restraints the Clause places on

governments.

More

specifically,

the

taxpayer-standing

exception illustrates “that [the] no-establishment

[restraint] was regarded by the Court as behaving

like a structural clause, capable of having its limits

exceeded,” even without the type of harm often

required for standing in other types of cases. Esbeck,

supra, 18 J.L. & Pol. at 457-58. Thus, “the injury

alleged in Establishment Clause challenges to

federal spending [is] the very extract[ion] and

spen[ding] of tax money in aid of religion”—one of

the prime evils that the drafters of the Establishment Clause sought to prevent. DaimlerChrysler,

547 U.S. at 348 (internal quotation marks omitted).

“And an injunction against the spending would of

course redress that injury, regardless of whether

lawmakers would dispose of the savings in a way

that would benefit the taxpayer-plaintiffs personally.” Id. at 348-49.

8

This Court has also recognized the injuries of

plaintiffs who challenge state-sanctioned religious

displays and exercises that endorse a particular

religion or stigmatize non-adherents.

See, e.g.,

McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).

“Because in many circumstances such people could

rather easily avert their eyes or ears, the injury

caused by these displays is primarily psychological—

the distress caused by knowledge that the government promotes a religious sentiment.” Lupu &

Tuttle, supra, 2008 B.Y.U. L. Rev. at 119. Such

harms to observers are not always justiciable in

other contexts. But, because a core purpose of the

Establishment Clause is to prevent government

promotion of sectarian beliefs, this Court’s

precedents reflect the necessity of conferring

standing on observers to challenge such actions.

Indeed, “[i]t is beyond dispute that” the Clause

prevents the government from acting “in a way

which establishes a [state] religion or religious faith,

or tends to do so.” Lee, 505 U.S. at 587 (internal

quotation marks omitted; bracketed addition in

original).

That, after all, is the fundamental

structural harm addressed by the Establishment

Clause. See Everson v. Bd. of Educ., 330 U.S. 1, 15

(1947) (“The ‘establishment of religion’ clause of the

First Amendment means at least this: Neither a

state nor the Federal Government can set up a

church,” or “prefer one religion over another.”).

Consider a law proclaiming Catholicism to be “the

one true faith and national religion,” and providing

that all conduct consistent with Catholic beliefs must

be accommodated by the government. Such a law

would surely run afoul of the Establishment Clause.

9

But would any citizen have standing to challenge the

law?

Under the decision below, the answer would be

no. The court of appeals held that Petitioners lacked

standing to challenge HB 1523 because they did not

“personally confront” the statute. Barber Pet. App.

9a-10a. The same reasoning would bar plaintiffs

from challenging the hypothetical law above. Thus,

a “resolution declaring Catholicism to be the official

religion of the [Nation] would be effectively

unchallengeable.” Catholic League for Religious &

Civil Rights v. City of San Francisco, 624 F.3d 1043,

1048 (9th Cir. 2010). That cannot be the law.

This Court has taken an approach to standing in

the Establishment Clause context that gives effect to

its structural protections. Accordingly, the Court has

recognized injuries associated with religious

alienation, offense to taxpayer conscience, sectarian

preference, the absence of a secular purpose, and

similar harms,4 precisely because the Establishment

Clause embodies those normative concerns. Unless

plaintiffs alleging such harms have standing, the

very evils feared by the Founders—such as the

establishment of a national religion or the

government’s use of the spending power in aid of

4 Lupu & Tuttle, supra, 2008 B.Y.U. L. Rev. at 135-36 (citing

County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492

U.S. 573, 625-26, 633 (1989) (O’Connor, J., concurring); Mitchell

v. Helms, 530 U.S. 793, 867 (2000) (O’Connor, J., joined by

Breyer, J., concurring); id. at 899 (Souter, J., joined by Stevens

& Ginsburg, JJ., dissenting); Edwards v. Aguillard, 482 U.S.

578 (1987)).

10

religion—will go unchecked. The standing issue

therefore merits this Court’s review.

2. The injuries Petitioners allege here fit

comfortably within the types of harms recognized by

this Court in the Establishment Clause context.

“Whether the key word is ‘endorsement,’

‘favoritism,’ or ‘promotion,’” the “Establishment

Clause, at the very least, prohibits government from

appearing to take a position on questions of religious

belief or from making adherence to a religion

relevant in any way to a person’s standing in the

political community.” County of Allegheny v. ACLU

Greater Pittsburgh Chapter, 492 U.S. 573, 593-94

(1989) (internal quotation marks omitted). Among

other things, such government endorsement sends a

message to non-adherents “that they are outsiders,

not full members of the political community, and an

accompanying message to adherents that they are

insiders, favored members of the political

community.” Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 309-10 (2000) (internal quotation marks

omitted). “This principle against favoritism and

endorsement has become the foundation of

Establishment Clause jurisprudence.” Lee, 505 U.S.

at 627.

As discussed below, Petitioners allege that the

religious beliefs HB 1523 explicitly protects conflict

with their own. Petitioners include ministers and

LGBT individuals who disagree with HB 1523’s

creedal statements that “[m]arriage is or should be

recognized as the union of one man and one woman”;

that “[s]exual relations are properly reserved to such

a marriage”; and that the terms “male” and female”

refer to “immutable biological sex” (Barber Pet.

11

App. 115a).

See Barber Pet. 7; Campaign for

Southern Equality Pet. 11. They contend that, by

conferring special “protect[ion]” for those “religious

beliefs” (Barber Pet. App. 115a)—not just specific

practices, as is commonly the case in accommodation

laws—HB 1523 impermissibly sends a message that

Petitioners are “not full members of the political

community.” Santa Fe, 530 U.S. at 309-10 (internal

quotation marks omitted). That alleged injury is a

cognizable one.

For example, in Santa Fe this Court held that a

public school’s sponsorship of a religious message

violated the Establishment Clause because it sent

the message to “nonadherents that they are

outsiders.” 530 U.S. at 309-10 (internal quotation

marks omitted). The Court rejected the defendant’s

argument that the plaintiff’s facial challenge to the

school policy was premature because no religious

message had yet been given under the policy:

This argument, however, assumes that we are

concerned only with the serious constitutional

injury that occurs when a student is forced to

participate in an act of religious worship because

she chooses to attend a school event. But the

Constitution also requires that we keep in mind

“the myriad, subtle ways in which Establishment

Clause values can be eroded,” and that we guard

against other different, yet equally important,

constitutional injuries. One is the mere passage

by the District of a policy that has the purpose and

perception of government establishment of

religion. Another is the implementation of a

governmental electoral process that subjects the

issue of prayer to a majoritarian vote.

12

Id. at 313-14 (quoting Lynch v. Donnelly, 465 U.S.

668, 694 (2002) (O’Connor, J., concurring)) (emphasis

added) (citation omitted). Just as this Court in

numerous cases has linked the nature of the

Establishment Clause injury to the often-minimal

showing of individualized harm required for

standing, this Court in Santa Fe entertained a preenforcement facial challenge because of the nature of

the Establishment Clause harm.

Santa Fe also makes it clear that the exact sort of

harm Petitioners allege here constitutes Establishment Clause injury. When a law endorses religion

over non-religion (or one religious belief over

another), Santa Fe holds, that endorsement or

establishment of religion is itself an injury. Here,

Petitioners allege that HB 1523 constitutes such

impermissible endorsement of particular religious

beliefs.

Members of this Court have differing views

regarding the endorsement test. But this Court has

recognized other structural harms that are also

implicated in this case. For example, the Court has

made clear that government-sanctioned acts that are

permissible in some contexts may violate the

Establishment Clause if they “denigrate nonbelievers

or religious minorities.” Town of Greece v. Galloway,

134 S. Ct. 1811, 1823 (2014).

That is what

Petitioners say enactment of HB 1523 does: By

extending its protections only to those who share its

favored religious beliefs on highly controversial and

divisive subjects, HB 1523 denigrates all other

religious beliefs relating to marriage, sexuality,

sexual orientation, and gender as unworthy of equal

treatment.

13

It also undisputed that the “principle that

government may accommodate the free exercise of

religion does not supersede the fundamental

limitations imposed by the Establishment Clause.”

Lee, 505 U.S. at 587.

Thus, even “[s]ymbolic

recognition or accommodation of religious faith may

violate the Clause in an extreme case.” Allegheny,

492 U.S. at 661 (Kennedy, J., concurring in the

judgment in part and dissenting in part). For

example, the Establishment Clause plainly “forbids a

city to permit the permanent erection of a large

Latin cross on the roof of city hall.” Ibid. That is

because “such an obtrusive year-round religious

display would place the government’s weight behind

an obvious effort to proselytize on behalf of a

particular religion.” Ibid.

But here, too, Petitioners challenge an “obtrusive

year-round religious display”—HB 1523, a statute

that is on the books for all to see, year round.5 And

they allege that the statute places the government’s

weight behind an effort to “proselytize” (ibid.) on

behalf of “certain”—and plainly not all—“religious

beliefs” regarding marriage, sexuality, sexual

orientation, and gender (Barber Pet. App. 115a). HB

1523 articulates and protects those specific religious

beliefs, and not others.

5 It would be a perverse civics lesson indeed if the law were to

deem citizens more likely to see a public display than to see a

public law. As the Campaign for Southern Equality Petitioners

point out, “Citizens are generally expected to know and respect

the law of the land.” Pet. 18. Moreover, there was ample

publicity surrounding the passage of HB 1523. See id. at 5-7.

14

In short, it is well settled that governmentinflicted stigma, denigration, and exclusion are

injuries in the Establishment Clause context.

Petitioners allege such injuries here, and therefore

have standing to challenge HB 1523. The lower

court’s approach to standing, in contrast, is divorced

from the purposes of the Establishment Clause, and

deserves this Court’s review because it would allow

even the most flagrant violations of the Clause to go

unchecked.

3. The Fifth Circuit held that Petitioners lack

standing because, “[j]ust as an individual cannot

‘personally confront’ a warehoused monument, he

cannot confront statutory text.”

Barber Pet.

App. 10a. But that is a flawed analogy. HB 1523 is

not a slip of paper stored in some dusty warehouse

where no one can see it, like the Ark of the Covenant

in an Indiana Jones movie. See Raiders of the Lost

Ark (1981). Rather, it is a duly enacted statute

codified in Mississippi’s legal code, Miss. Code Ann.

§ 11-62-1 et seq. (2016), which Petitioners (and all

citizens) can view on their computer screen or hold in

their hands.

In other words, Petitioners do

“personally confront” HB 1523.

More to the point, the Fifth Circuit’s cramped

“personal confrontation” requirement ignores the

self-evident fact that a state law endorsing some

religious beliefs and disparaging others inflicts a

greater injury on that state’s citizens than merely

permitting the display of the Ten Commandments on

state property. Such a display can send multiple

messages, and does nothing to protect any specific

beliefs or conduct. A statute, in contrast, is binding

law that reflects the state’s official policy, governing

15

all its citizens. HB 1523 provides a complete defense

with respect to any actions taken “wholly or

partially” on the basis of such beliefs. Barber Pet.

App. 115a. And there is no doubt about the purpose

of HB 1523: the “Protection of certain sincerely held

religious beliefs” regarding marriage, sexuality,

sexual orientation, and gender. Ibid.

As Petitioners explain (see Barber Pet. 14-18;

Campaign for Southern Equality Pet. 9-14), other

courts of appeals have held that, for purposes of

standing under the Establishment Clause, plaintiffs

do come into “contact” with laws that impermissibly

promote or disparage religion. In Awad v. Ziriax,

670 F.3d 1111 (10th Cir. 2012), for example, the

Tenth Circuit held that the plaintiff suffered “a form

of personal and unwelcome contact with an

amendment to the Oklahoma Constitution that

would target his religion for disfavored treatment.”

Id. at 1122 (internal quotation marks omitted)

(emphasis added). In Moss v. Spartanburg County

School District Seven, 683 F.3d 599 (4th Cir. 2012)—

a case involving a policy, not a physical symbol—the

Fourth Circuit recognized that plaintiffs have

standing when they are “spiritual[ly] affront[ed] as a

result of direct and unwelcome contact with an

alleged religious establishment within their

community.” Id. at 605 (internal quotation marks

omitted) (emphasis added).

And in Catholic League the Ninth Circuit

similarly held that the plaintiffs challenging a nonbinding resolution disapproving of the Catholic

Church’s policy against adoption by same-sex

parents had standing because “they have come in

contact with the resolution,” which conveyed a

16

message of hostility to their religious beliefs.

F.3d at 1053 (emphasis added).6

624

Those cases therefore stand for the commonsense

proposition that, in all ways that matter, a plaintiff

comes into “contact” with a law that establishes,

promotes, or disparages religious belief. Under the

Fifth Circuit’s rule, however, plaintiffs can never

“confront” a state law governing their lives unless

that law is displayed on a billboard on state

property, in addition to being codified in the law

books. This Court should resolve the clear circuit

conflict, and should do so in favor of recognizing

standing for those who challenge a law that allegedly

inflicts on them a recognized form of Establishment

Clause injury.

II. HB 1523 VIOLATES THE ESTABLISHMENT

CLAUSE AND INJURES PERSONS WHO DO

NOT ADHERE TO THE RELIGIOUS

BELIEFS ENUMERATED IN THE STATUTE

The standing issue merits review because of its

widespread implications. But it also merits review

6 Catholic League is in a relevant sense the mirror image of this

case. In Catholic League, the plaintiffs argued that the nonbinding resolution disparaged their religious belief that “[c]lear

and emphatic opposition to homosexual unions is a duty of all

Catholics.” 624 F.3d at 1053 (internal quotation marks

omitted). Here, Petitioners claim that HB 1523 impermissibly

promotes the religious belief that “[s]exual relations are

properly reserved” to a “union of one man and one woman,”

Barber Pet. App. 115a, and disparages their religious beliefs to

the contrary. It cannot be that disagreeing citizens have

standing to challenge a law that says “A” but disagreeing

citizens lack standing to challenge a law that says “not A.”

17

because in this case the decision below has allowed a

clear constitutional violation to escape review.

HB 1523 violates the Establishment Clause in four

related respects—and thereby inflicts concrete,

particularized injury on Petitioners.

1. Mississippi’s singular law can only be

understood to have the prohibited purpose of

promoting a particular set of religious beliefs. And

that violates a basic Establishment Clause principle:

“Manifesting a purpose to favor one faith over

another, or adherence to religion generally, clashes

with the understanding, reached . . . after decades of

religious war, that liberty and social stability

demand a religious tolerance that respects the

religious views of all citizens.” McCreary, 545 U.S. at

860 (internal quotation marks omitted). Because

there is “no neutrality when the government’s

ostensible object is to take sides” in religious

matters, a statute is unconstitutional when the

evidence supports “a commonsense conclusion that a

religious objective permeated the government’s

action.” Id. at 860, 863.

To be sure, the government may pass laws with

the purpose of showing respect for free-exercise

values. But “to perceive the government action as a

permissible accommodation of religion, there must in

fact be an identifiable burden on the exercise of

religion that can be said to be lifted by the

government action.” Corp. of the Presiding Bishop v.

Amos, 483 U.S. 327, 348 (1987) (O’Connor, J.,

concurring). If no burden on the exercise of religion

is said to be lifted, the only logical inference is that

the State’s purpose is to speak on matters of faith—

thus establishing itself as an arbiter of correct

18

religion and demeaning non-adherents to its chosen

tenets. See Wallace v. Jaffree, 472 U.S. 38, 59

(1985).

That peculiar circumstance—a law that singles

out specific religious beliefs for protection yet is said

by its defenders to lift no burden on the exercise of

those beliefs—is exactly what this litigation involves.

Although Respondents have characterized HB 1523

as a response to legal assaults on opponents of samesex marriage, they have at the very same time

insisted that there is no burden on free exercise that

HB 1523 in fact lifts. For example, they have stated

that, “[e]ven before HB 1523, it was legal in

Mississippi for individuals, businesses, and religious

organizations to decline to participate in same-sex

marriages,” and that “it would have remained legal

even if HB 1523 had never been enacted.”

Appellants’ Br. at 19, Barber v. Bryant, 2016 WL

6350550 (5th Cir. Oct. 26, 2016) (No. 16-60478).

If we take Respondents at their word, Mississippi

has written three creedal statements into law and

conferred benefits on anyone who agrees with

them—and has done so on the premise that HB 1523

does not achieve any actual free-exercise objective

not already achieved by existing law. Especially in

light of a legislative record full of religious

statements by HB 1523’s sponsors (see Barber Pet. 45; Campaign for Southern Equality Pet. 6-7), that

assertion reveals that HB 1523 is an effort to

proclaim religious truth, and not to protect the free

exercise of religion.

2. The structure of HB 1523 confirms that it

endorses the enumerated “religious beliefs” (Barber

Pet. App. 115a) and disparages non-adherents. In

19

enacting the law, Mississippi did not address the

subjects of marriage, sexuality, sexual orientation,

and gender, and attempt to accommodate religious

beliefs and practices evenhandedly.

Rather, it

singled out only specific religious viewpoints on these

subjects as worthy of legal protection. Those with

different religious views on the very same questions

receive no protection from HB 1523, despite the rule

that a “scheme of exemptions” must not have the

“effect of sponsoring certain religious tenets.” Tex.

Monthly, Inc. v. Bullock, 489 U.S. 1, 16-17 (1989)

(plurality opinion).

Thus, under HB 1523, a state employee cannot be

fired for speech based on religious opposition to

same-sex marriage, but is afforded no protection

against termination for religious speech supporting

it. State-funded programs cannot lose money for

religious objections to aiding transgendered persons,

but can lose funds for religiously motivated

transgender outreach. And so on. HB 1523 offers

shields against “discrimination” by Mississippi, but

only to those who hold three State-selected views

about the religious disputes in question.

HB 1523 therefore creates classes—drawn

explicitly by reference to “religious beliefs” (Barber

Pet. App. 115a)—of insiders and outsiders. See

Santa Fe, 530 U.S. at 309. Mississippians who hold

those religious beliefs receive statutory protection,

while those with different viewpoints on the exact

same questions of faith do not.

That constitutional vice is exacerbated by three

striking features of HB 1523. First, HB 1523 is

categorical and automatic. It does not allow for any

consideration of other governmental or private

20

interests that might be burdened by accommodating

the enumerated beliefs. Second, HB 1523 is exempt

from Mississippi’s Religious Freedom Restoration

Act. See Barber Pet. App. 126a. Thus, whenever the

State burdens another person’s religious practice by

accommodating the enumerated religious beliefs, the

religious beliefs listed in HB 1523 prevail. Finally,

HB 1523 does not require that a burden on religion

actually exist; it covers even speech or conduct that

is merely “consistent with” the enumerated “religious

belief or moral conviction.” Barber Pet. App. 116a.

Thus, any person who claims that his or her conduct

was “consistent” with the enumerated beliefs or

convictions receives complete protection—even if

that conduct was not motivated by a personally held

religious belief.

It is difficult to imagine a clearer endorsement of

specific propositions of religious truth: The State

picks three hotly disputed subjects; writes into law

its own creedal statements; protects only a single

religious viewpoint on those subjects; covers any

conduct even “consistent with” those views; and

requires that every other interest conceivably

affected by its law, including contrary religious views

on the same subjects, always lose in the event of a

conflict. That is entirely unlike typical government

accommodation of religion. By unavoidable implication, HB 1523 denigrates all other religious beliefs

relating to marriage, sexuality, sexual orientation,

and gender as unworthy of equal treatment. See

Town of Greece, 134 S. Ct. at 1823.

3. HB 1523 further violates bedrock principles

forbidding discrimination on the basis of religious

belief. Time and again, this Court has identified

21

discrimination among sects, denominations, and

beliefs as a prime evil against which the

Establishment Clause is aimed. Bd. of Educ. of

Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.

687 (1994); Larson v. Valente, 456 U.S. 228 (1982);

Torcaso v. Watkins, 367 U.S. 488 (1961). Yet not

only does HB 1523 discriminate in favor of the listed

religious beliefs and against non-adherents, but it

also places the State’s imprimatur on a set of

orthodoxies shared by some Christians, Jews, and

Muslims (among others), thereby favoring those

orthodoxies against contrary views shared by many

other Christians, Jews, and Muslims (among others).

Such governmental favoritism along intra- and

inter-faith religious lines inflicts a quintessential

legal injury on disfavored faiths—and collides

headlong with the Establishment Clause. The State

may not throw its weight, in laws that speak

explicitly of religious belief, behind one side in a

matter of intra-denominational religious controversy,

giving adherents of favored views the upper hand.

The Constitution bars governmental intervention

into purely ecclesiastical questions. Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 132

S. Ct. 694, 704 (2012); Presbyterian Church in U.S. v.

Mary Elizabeth Blue Hull Mem’l Presbyterian

Church, 393 U.S. 440, 447 (1969).

4. Finally, an original purpose of the

Establishment Clause was to prohibit the

government from requiring one person to support

another’s religion. See, e.g., James Madison,

Memorial and Remonstrance Against Religious

Assessments ¶ 4 (1785). That purpose is reflected in

Court precedents barring government from imposing

22

unreasonable hardship on third parties in order to

accommodate religion. HB 1523 cannot be squared

with that requirement.

In Estate of Thornton v. Caldor, Inc., 472 U.S. 703

(1985), this Court struck down a statute that granted

every employee an absolute right to be free from

work on his or her Sabbath—even when doing so

“would cause the employer substantial economic

burdens or when the employer’s compliance would

require the imposition of significant burdens on

other employees.” Id. at 709-10. This Court held

that this “unyielding weighting in favor of Sabbath

observers over all other interests contravenes a

fundamental principle of the Religion Clauses,”

which give “no one the right to insist that in pursuit

of their own interests others must conform their

conduct to his own religious necessities.” Id. at 710

(internal quotation marks omitted). Thornton thus

holds that an accommodation cannot survive

Establishment

Clause

review

if

it

shifts

unreasonable hardship to third parties.

Cutter v. Wilkinson, 544 U.S. 709 (2005),

unanimously affirmed that interpretation of

Thornton. Rejecting a facial attack on the Religious

Land Use and Institutionalized Persons Act

(RLUIPA), the Court held that “an accommodation

must be measured so that it does not override other

significant interests.” Id. at 722 (emphasis added).

Applying that rule, the Court held that RLUIPA

“does not founder on shoals our prior decisions have

identified”—but only because, “[p]roperly applying

RLUIPA, courts must take adequate account of the

burdens a requested accommodation may impose on

23

nonbeneficiaries.” 544 U.S. at 720 (citing Thornton,

472 U.S. at 703).

Thornton and Cutter therefore set forth the rule

that accommodations may not shift unreasonable

hardship to third parties. If an accommodation does

so, it must provide a means by which the government

can avoid inflicting third-party harms, such as

delegating to courts the power to limit

accommodations based on a “compelling interest”

test.

Otherwise, the accommodation is unconstitutional.

Together, two features of HB 1523 violate the

principle articulated in Thornton and Cutter. First,

whereas most accommodations define with specificity

the conduct they cover, HB 1523 works very

differently. It starts by identifying three broadly

stated beliefs about marriage, sexuality, sexual

orientation, and gender. Then, rather than address

particular conduct—e.g., performing an abortion or

serving in the army—it excludes from any otherwiseapplicable laws a vast and vaguely defined universe

of actions that may follow from those beliefs. HB

1523 thus operates across every imaginable social

context, ranging from education and healthcare to

family life and commerce. As a result, the law shifts

the burdens of accommodating the enumerated

religious beliefs to third parties (including nonadherents) in many different ways. And some of that

burden-shifting will result in deprivations of

fundamental rights.7

Third-party harms are therefore an Establishment Clause

concern, and their existence places limits on legislative

7

24

Second, like the law invalidated in Thornton,

HB 1523 is “absolute and unqualified,” 472 U.S. at

709.

It contains no provisions taking into

consideration the interests of third parties or

permitting courts to adjudicate conflicts between the

interests of religious believers and those who would

be burdened by accommodating them. The religious

beliefs enumerated in the statute receive an

“unyielding weighting.” Id. at 710.

HB 1523 is therefore invalid because it shifts

substantial harm to a discrete class of third parties

as the price of accommodating the enumerated

religious beliefs. That injury accrues to Petitioners,

both as non-adherents whose beliefs are treated as

second class by HB 1523 and as citizens who may

suffer major burdens as a result of it.

***

By enacting HB 1523, Mississippi has

purposefully favored a set of religious beliefs about

controversial questions of marriage, sexuality, sexual

orientation, and gender. The law itself, by virtue of

its unprecedented structure, endorses those beliefs,

disparages and discriminates against those with

different religious truths, and shifts substantial

burdens to third parties. Each day that it is in effect,

HB 1523 would declare to every Mississippi citizen—

and to faith leaders and LGBT persons most

accommodations—limits exceeded by this statute. While some

of those third-party harms may not arise until later, this Court

need not wait for those specific harms to occur in order to

address the other, ongoing harms of entrenching religious

beliefs into the State’s code.

25

pointedly—that adherents of the protected religious

beliefs are exalted above all others in the eyes of the

State. That is cognizable injury—and it violates the

Establishment Clause.

By thwarting any Establishment Clause review of

HB 1523, the judgment below invites every religious

group, in Mississippi and elsewhere, to lobby for its

own creedal statements to be enshrined in law. That

is dangerous business.

This Court’s review is

therefore necessary to vindicate principles of

religious liberty.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Roy T. Englert, Jr.

Counsel of Record

Daniel N. Lerman

ROBBINS, RUSSELL, ENGLERT,

ORSECK, UNTEREINER &

SAUBER LLP

1801 K Street, NW, Suite

411-L

Washington, D.C. 20006

(202) 775-4500

renglert@robbinsrussell.com

Counsel for Amici Curiae

November 2017