RIMS BARBER; CAROL BURNETT; JOAN BAILEY;KATHERINE ELIZABETH DAY; ANTHONY LAINE BOYETTE;DON FORTENBERRY; SUSAN GLISSON; DERRICK JOHNSON;DOROTHY C. TRIPLETT; RENICK TAYLOR;BRANDILYNE MANGUM-DEAR; SUSAN MANGUM;JOSHUA GENERATION METROPOLITAN COMMUNITY CHURCH, Plaintiffs-Appellees,
GOVERNOR PHIL BRYANT, State of Mississippi; JOHN DAVIS, Executive Director of the Mississippi Department of Human Services, Defendants-Appellants. CAMPAIGN FOR SOUTHERN EQUALITY;THE REVEREND DOCTOR SUSAN HROSTOWSKI, Plaintiffs-Appellees,
PHIL BRYANT, in His Official Capacity as Governor of the State of Mississippi; JOHN DAVIS, in His Official Capacity as Executive Director of the Mississippi Department of Human Services, Defendants-Appellants.
from the United States District Court for the Southern
District of Mississippi
SMITH, ELROD, and HAYNES, Circuit Judges.
E. SMITH, Circuit Judge.
Governor of Mississippi and the Executive Director of the
Mississippi Department of Human Services appeal a preliminary
injunction. Because the plaintiffs do not have standing, we
reverse the injunction and render a judgment of dismissal.
plaintiffs challenge the constitutionality of a Mississippi
statute, HB 1523, under the Establishment Clause and the
Equal Protection Clause of the Fourteenth Amendment. HB 1523
provides that "[t]he state government shall not take any
discriminatory action" against persons who act in
accordance with certain beliefs in an enumerated set of
circumstances. Section 2 of HB 1523 identifies three
"religious beliefs or moral convictions":
(a) Marriage is or should be recognized as the union of one
man and one woman; (b) [s]exual relations are properly
reserved to such a marriage; and (c) [m]ale (man) or female
(woman) refer[s] to an individual's immutable biological
sex as objectively determined by anatomy and genetics at time
2016 Miss. Law HB 1523 § 2. Those who act in accordance
with those beliefs are protected from discriminatory action
by the state in the form of adverse tax, benefit, and
employment decisions, the imposition of fines, and the denial
of occupational licenses. HB 1523 § 4. The statute
creates a private right of action for individuals to address
any violations of HB 1523 by state officials and permits its
use as a defense in private suits over conduct covered by the
statute. HB 1523 § 5.
3 defines the set of circumstances in which adverse state
action is restricted. Religious organizations are protected
when they make decisions regarding employment, housing, the
placement of children in foster or adoptive homes, or the
solemnization of a marriage based on a belief listed in
Section 2. HB 1523 § 3(1)-(2). Parents are protected if
they decide to raise their foster or adoptive children in
accordance with a belief listed in Section 2. HB 1523 §
3(3). Doctors and mental health counselors cannot be
compelled to provide services in contravention of a sincerely
held Section 2 belief, provided it does not interfere with
"visitation, recognition of a designated representative
for health care decision-making, or emergency medical
treatment necessary to cure an illness or injury as required
by law." HB 1523 § 3(4). Businesses that offer
wedding-related services are protected if they decline to
provide them on the basis of a Section 2 belief. HB 1523
3 also protects any entity that establishes sex-specific
standards for facilities such as locker rooms or restrooms.
HB 1523 § 3(6). The state cannot take adverse employment
action against a state employee for Section 2-related speech
as long as his "speech or expressive conduct is
consistent with the time, place, manner and frequency of any
other expression of a religious, political, or moral belief
or conviction allowed . . . ." HB 1523 § 3(7).
Finally, county clerks and state judges cannot be compelled
to license or celebrate marriages that are inconsistent with
a sincerely held Section 2 belief, provided that the official
gives prior notice and "any legally valid marriage is
not impeded or delayed as a result of any recusal." HB
1523 § 3(8).
plaintiffs are residents of Mississippi and two organizations
who do not share the Section 2 beliefs. The district court
discussed the individual plaintiffs in three categories: (1)
religious leaders who do not agree with the Section 2
beliefs, (2) gay and transgender persons who may be
negatively affected by HB 1523, and (3) other persons
associated with the Section 3 circumstances who do not share
the Section 2 beliefs. The organizational plaintiffs are
Joshua Generation Metropolitan Community Church, a religious
organization that objects to the Section 2 beliefs, and the
Campaign for Southern Equality ("CSE"), whose brief
describes it as "a non-profit organization that works
across the South to promote the full humanity and equality of
lesbian, gay, bisexual, and transgender people in American
life" (internal quotation marks omitted).
plaintiffs filed two suits, later consolidated, against state
officials who would have a role in the implementation of HB
1523. Plaintiffs assert they are injured by the "clear
message" sent by HB 1523 that the "state government
disapproves of and is hostile to same-sex couples, to
unmarried people who engage in sexual relations, and to
transgender people." They maintain that that message
violates the Establishment Clause because it endorses
specific religious beliefs and that it violates the Equal
Protection Clause of the Fourteenth Amendment because it
provides different protections for Missis-sippians based on
district court issued a preliminary injunction against the
implementation of HB 1523. The state defendants appeal.
III limits federal courts to deciding only actual
"Cases" or "Controversies." U.S. Const.
art. III, § 2. "As an incident to the elaboration
of" the case-or-controversy requirement, "[we have]
always required that a litigant have 'standing' to
challenge the action sought to be adjudicated in the
lawsuit." Valley Forge Christian Coll. v. Ams.
United for Separation of Church & State, Inc., 454
U.S. 464, 471 (1982). The Judicial Branch may not
"accept for adjudication claims of constitutional
violation . . . where the claimant has not suffered
cognizable injury." Id. at 474.
irreducible constitutional minimum of standing contains three
elements." Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). "First, the plaintiff must have
suffered an injury in fact-an invasion of a legally protected
interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical[.]"
Id. (internal quotation marks and citations
omitted). "Second, there must be a causal connection
between the injury and the conduct complained of-the injury
has to be fairly . . . trace[able] to the challenged action
of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court." Id. (internal quotation marks and
citations omitted). "Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision." Id. at 561
(internal quotation marks and citation omitted).
always have the burden to establish standing. Id.
"Since they are not mere pleading requirements but
rather an indispensable part of the plaintiff's case,
each element must be supported . . . with the manner and
degree of evidence required at the successive stages of
litigation." Id. Because a preliminary
injunction "may only be awarded upon a clear showing
that the plaintiff is entitled to such relief, " the
plaintiffs must make a "clear showing" that they
have standing to maintain the preliminary
injunction. None of these plaintiffs has clearly shown
an injury-in-fact, so none has standing. It follows that
"[w]e do not―indeed, we may not―reach the
merits of the parties' [constitutional] arguments."
Hotze v. Burwell, 784 F.3d 984, 991 (5th Cir. 2015).