NO. 17-

In the
Supreme Court of the United States
RIMS BARBER, ET AL.,
Petitioners,
V.

GOVERNOR PHIL BRYANT, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
PAUL M. SMITH
600 New Jersey Ave. NW
Washington, DC 20001

DONALD B. VERRILLI, JR.
Counsel of Record
GINGER D. ANDERS
ADELE M. EL-KHOURI
MUNGER, TOLLES & OLSON LLP
1155 F Street NW 7th Floor
Washington, D.C. 20004
(202) 220-1100
Donald.Verrilli@MTO.com

Counsel for Petitioners

 ROBERT B. MCDUFF
767 North Congress Street
Jackson, MS 39202

SUSAN L. SOMMER
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, NY 10005

BETH L. ORLANSKY
MISSISSIPPI CENTER FOR
JUSTICE
P.O. Box 1023
Jackson, MS 39215-1023

ELIZABETH LITTRELL
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
730 Peachtree Street, Suite 640
Atlanta, GA 30308

 i
QUESTIONS PRESENTED
In Obergefell v. Hodges, 135 S. Ct. 2584 (2015),
this Court held that the Constitution entitles samesex couples to join in civil marriage on the same
terms as different-sex couples. In response, Mississippi enacted the Protecting Freedom of Conscience
from Government Discrimination Act, Miss. Code
Ann. § 11-62-1 et seq. (2016) (“HB 1523”). HB 1523
grants broad immunity to any person who commits
enumerated acts of discrimination on the basis of
religious beliefs or moral convictions opposing marriage of same-sex couples; transgender individuals;
and sexual relations outside of a male-female marriage. The court of appeals held that petitioners, who
do not share the endorsed beliefs, lack standing under the Establishment Clause because the religious
endorsement takes the form of a statute rather than
a religious display that they can physically encounter, and held that they lack standing under the Equal
Protection Clause because they have suffered no
unequal treatment. The questions presented are:
1. Whether petitioners have standing to challenge HB 1523 on the ground that it violates the
Establishment Clause by endorsing religious opposition to marriages of same-sex spouses, transgender
individuals, and sexual relations outside of marriage.
2. Whether petitioners have standing to challenge HB 1523 on the ground that it violates the
Equal Protection Clause by partially preempting
existing anti-discrimination protections for lesbian,
gay, bisexual, and transgender (“LGBT”) individuals,
and by bestowing legal privileges only on those individuals who subscribe to HB 1523’s state-endorsed
religious and moral beliefs.

 ii
PARTIES TO THE PROCEEDING
Petitioners (plaintiffs-appellees below) are Rims
Barber; Carol Burnett; Joan Bailey; Anthony Laine
Boyette; Don Fortenberry; Susan Glisson; Derrick
Johnson; Dorothy C. Triplett; Renick Taylor;
Brandilyne Magnum-Dear; Susan Magnum; and
Joshua Generation Metropolitan Community Church.
Respondents (defendants-appellants below) are
Phil Bryant, in his official capacity as Governor of the
State of Mississippi, and John Davis, in his official
capacity as Executive Director of the Mississippi
Department of Human Services.

 iii
TABLE OF CONTENTS
Page
OPINIONS BELOW .................................................... 1
JURISDICTION........................................................... 1
CONSTITUTIONAL
AND
STATUTORY
PROVISIONS INVOLVED ............................... 1
INTRODUCTION ........................................................ 2
STATEMENT............................................................... 3
REASONS FOR GRANTING THE PETITION ........ 12
I.

II.

This Court Should Review The Court Of
Appeals’ Conclusion That Petitioners
Lack
Standing
To
Bring
Their
Establishment Clause Challenge. .................. 13
A.

The Court Of Appeals’ Decision
Conflicts With The Decisions Of
Three Other Circuits. ........................... 14

B.

The Court Of Appeals Incorrectly
Concluded That Petitioners Lack
Standing
To
Bring
Their
Establishment Clause Challenge. ....... 18

This Court Should Also Review The
Court Of Appeals’ Conclusion That
Petitioners Lack Standing To Bring
Their
Equal
Protection
Clause
Challenge......................................................... 23
A.

The Court Of Appeals’ Decision
Conflicts With Decisions Of Other
Circuits. ................................................ 24

 iv
TABLE OF CONTENTS
(continued)
B.

III.

Page

The Court Of Appeals Incorrectly
Concluded That Petitioners Lack
Standing To Bring Their EqualProtection Claim................................... 25

This Court’s Review Is Warranted To
Resolve Important And Recurring
Questions Concerning Standing Under
The Establishment Clause And The
Equal Protection Clause. ................................ 29

CONCLUSION .......................................................... 33
APPENDIX
Opinion of the United States Court of Appeals
for the Fifth Circuit (June 22, 2017) .............. 1a
Order of the United States Court of Appeals for
the Fifth Circuit Denying Rehearing En
Banc (September 29, 2017) ........................... 20a
Opinion Dissenting from Denial of Rehearing
En Banc (September 29, 2017) ..................... 23a
Opinion and Order of the United States
District Court for the Southern District
of Mississippi (June 30, 2016) ...................... 35a
Miss. Code Ann. § 11-62-1 et seq. (HB 1523) ........ 115a

 v
TABLE OF AUTHORITIES
FEDERAL CASES
Adland v. Russ,
307 F.3d 471 (6th Cir. 2002) ................................ 20
Am. Atheists, Inc. v. Davenport,
637 F.3d 1095 (10th Cir. 2010) ............................ 19
ACLU of N.M. v. Santillanes,
546 F.3d 1313 (10th Cir. 2008) ............................ 25
Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) .....................passim
Catholic League for Religious and Civil
Rights v. City of San Francisco,
624 F.3d 1043 (9th Cir. 2010) (en
banc) ...............................................................passim
Cnty. of Allegheny v. ACLU,
492 U.S. 573 (1989) ........................................ 11, 19
Epperson v. Arkansas,
393 U.S. 97 (1968) ................................................ 18
Hassan v. City of New York,
804 F.3d 277 (3d Cir. 2015) .................................. 24
Heckler v. Mathews,
465 U.S. 728 (1984) .................................. 26, 27, 28
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir.) (en banc), cert.
granted, 137 S. Ct. 2080 (2017)............................ 17

 vi
Lawrence v. Texas,
539 U.S. 558 (2003) .......................................... 2, 12
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................ 7
Lynch v. Donnelly,
465 U.S. 668.................................................... 15, 20
Masterpiece Cakeshop, Ltd. v. Colo. Civil
Rights Comm’n, 137 S. Ct. 2290
(June 26, 2017) ......................................... 30, 31, 32
McCreary Cnty. v. ACLU of Ky.,
545 U.S. 844 (2005) .............................................. 18
Moss v. Spartanburg Cnty. Sch. Dist.
Seven,
683 F.3d 599 (4th Cir. 2012) ................................ 17
Mueller v. Allen,
463 U.S. 388 (1983) .............................................. 12
Ne. Fla. Chapter of Associated Gen.
Contractors of Am. v. City of
Jacksonville,
508 U.S. 656 (1993) ........................................ 26, 28
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ...................................passim
Peyote Way Church of God, Inc. v.
Thornburgh,
922 F.2d 1210 (5th Cir. 1991) .............................. 28
Planned Parenthood of S.C. Inc. v. Rose,
361 F.3d 786 (4th Cir. 2004) .......................... 24, 25

 vii
Romer v. Evans,
517 U.S. 620 (1996) .............................. 9, 10, 27, 28
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) .......................................passim
Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) .......................................... 23
Valley Forge Christian Coll. v. Ams.
United for Separation of Church and
State, Inc.,
454 U.S. 464 (1982) .................................. 19, 22, 23
Van Orden v. Perry,
545 U.S. 677 (2005) .............................................. 19
Warth v. Seldin,
422 U.S. 490 (1975) .............................................. 27
FEDERAL STATUTES
28 U.S.C. § 1254(1) ...................................................... 1
STATE STATUTES
Miss. Code Ann. § 11-62-1 et. seq. (2016)
(“HB 1523”) ....................................................passim
Pub. Ch. 926, S.B. 926, 109th Gen.
Assemb., Reg. Sess. (Tenn. 2016) ........................ 32
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I. ............................................. 1, 20
U.S. Const. amend. XIV, § 1 ........................................ 1

 viii
STATE LEGISLATIVE MATERIALS
H.B. 2232, 91st Gen. Assemb., Reg. Sess.
(Ark. 2017) ............................................................ 29
S.B. 2158, 89th Leg., Reg. Sess. (Minn.
2015)...................................................................... 29
S.B. 197, 56th Leg., Reg. Sess. (Okla.
2017)...................................................................... 29
H.B. 1599, 55th Leg., Reg. Sess. (Okla.
2015)...................................................................... 29
H.B. 2215, 55th Leg., Reg. Sess. (Okla.
2015)...................................................................... 29
H.B. 296, 131st Gen. Assemb., Reg. Sess.
(Ohio 2015) ..................................................... 29, 32
H.B. 135, 64th Leg., Reg. Sess. (Wyo.
2017)...................................................................... 29

 1
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari to the United States Court of Appeals for the
Fifth Circuit.
OPINIONS BELOW
The opinion of the court of appeals, App., infra,
1a, is reported at 860 F.3d 345. The order of the
court of appeals denying rehearing en banc, App. 20a,
and the opinion dissenting from denial, App. 23a, are
not yet reported. The opinion of the district court,
App. 35a, is reported at 193 F. Supp. 3d 677.
JURISDICTION
The judgment of the court of appeals was entered
on June 22, 2017. Petitions for rehearing were denied on September 29, 2017. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the Constitution provides, in relevant part: “Congress shall make no law
respecting an establishment of religion.” U.S. Const.
amend. I. The Fourteenth Amendment provides, in
relevant part, that no state shall “deprive any person
of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
Miss. Code Ann. § 11-62-1 et. seq. (2016) (“HB
1523”), is reproduced in the appendix to this petition.
App., infra, 115a.

 2
INTRODUCTION
Shortly after this Court recognized a fundamental
right to marriage for same-sex couples in Obergefell v.
Hodges, 135 S. Ct. 2584 (2015), Mississippi enacted a
statute that establishes religious opposition to those
marriages as the official policy of the State. Enacted
for the purpose of recognizing “God’s design for
marriage,” App. 46a, HB 1523 provides that
businesses, individuals, religious organizations, and
government officials may refuse services to lesbian,
gay, bisexual, and transgender individuals on the
basis of certain enumerated beliefs, including
opposition to the marriage of same-sex couples and
the rights of transgender individuals. HB 1523 is a
transparent attempt to undermine the equal dignity
of LGBT citizens established in this Court’s decisions,
beginning with Lawrence v. Texas, 539 U.S. 558
(2003), and continuing through Obergefell. It is an
equally transparent attempt to endorse particular
religious beliefs as official state policy.
Petitioners—who include LGBT individuals and
others who disagree with the beliefs endorsed by HB
1523—challenged the statute as a violation of the
Establishment Clause and the Equal Protection
Clause of the United States Constitution. The court
of appeals held that petitioners lack standing to bring
either claim. With respect to the Establishment
Clause, the court concluded the petitioners lack
standing because the State endorsed its preferred
religious beliefs in a statute, rather than in a tangible
item that petitioners could physically encounter, such
as a “religious display” or a “religious symbol on [a]
public utility bill.” App. 9a. The court’s decision is
wrong on the merits; it conflicts with the decision of
other courts of appeals; and it has staggering

 3
implications. Under the court’s reasoning, a State
could enact a statute establishing Christianity—or
any other religion—as the official religion of the
State, and no plaintiff would have standing to
challenge that statute. The court’s decision is sure to
embolden other state legislatures that wish to
express their disagreement with Obergefell in
religious terms. Numerous measures similar to HB
1523 have already been introduced in state
legislatures around the country. This Court’s review
is warranted to correct the court of appeals’
insupportable holdings and to protect the promise of
Obergefell.
STATEMENT
1. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015),
this Court held that the constitutional guarantees of
equal protection and due process entitle same-sex
couples to join in civil marriage on the same terms as
different-sex couples. Id. at 2604–05. Explaining
that “[t]he right to marry is fundamental as a matter
of tradition,” the Court held that while “[t]he limitation of marriage to opposite-sex couples may long
have seemed natural and just, . . . its inconsistency
with the central meaning of the fundamental right to
marry is now manifest.” Id. at 2602. “With that
knowledge,” the Court concluded, “must come the
recognition that laws excluding same-sex couples
from the marriage right impose stigma and injury of
the kind prohibited by our basic charter.” Id.
The Court acknowledged that “[m]any who deem
same-sex marriage to be wrong reach that conclusion
based on decent and honorable religious or philosophical premises.” Id. But it recognized that “when that
sincere, personal opposition becomes enacted law and
public policy, the necessary consequence is to put the

 4
imprimatur of the State itself on an exclusion that
soon demeans or stigmatizes those whose own liberty
is then denied.” Id. Notwithstanding the existence of
personal and religious opposition, then, the State
must accord same-sex couples “the same legal treatment as opposite-sex couples” with respect to civil
marriage. Id.
2. a. Mississippi officials vehemently disagreed
with the Obergefell decision. Governor Phil Bryant
declared that it “usurped” states’ rights and imposed
a federal regime that was “certainly out of step with
the majority of Mississippians.” App. 44a–45a. The
state legislature had a similar reaction. On the day
of the decision, “Lieutenant Governor Tate Reeves,
who presides over the State Senate, called the decision an ‘overreach of the federal government.’” App.
45a. Speaker of the House Philip Gunn stated that
the decision was “in direct conflict with God’s design
for marriage,” and some legislators suggested that
the State should stop issuing marriage licenses entirely. App. 45a–46a.
Within ten months, the Mississippi legislature enacted legislation in response to Obergefell, in the form
of the Protecting Freedom of Conscience from Government Discrimination Act, App. 115a–126a (Miss.
Code Ann. § 11-62-1 et. seq.) (“HB 1523”). Introduced
by Representative Gunn, HB 1523 was described as
“a solution to the crossroads we find ourselves in
today as a result of Obergefell v. Hodges,” and as
“very specific to same-sex marriage.” App. 79a n.28.
Representative Gunn commented that “[a]fter the
Supreme Court decision in Obergefell (v. Hodges), it
became apparent that there would be a head-on collision between religious convictions about gay mar-

 5
riage and the right to gay marriage created by the
decision.” App. 48a n.12.
b. HB 1523 establishes a system of legal benefits
for the class of Mississippi citizens who condemn
marriage between same-sex spouses, sex outside of
marriage, and transgender individuals on religious or
moral grounds. Section 2, App. 115a (§ 11-62-3), sets
forth three specific “sincerely held religious beliefs or
moral convictions” that the statute protects: (1)
“Marriage is or should be recognized as the union of
one man and one woman”; (2) “Sexual relations are
properly reserved to such a marriage”; and (3) “Male
(man) or female (woman) refer to an individual’s
immutable biological sex as objectively determined by
anatomy and genetics at time of birth.” Id. (“Section
2 beliefs”).
HB 1523 provides legal protection to government
officials, individuals, religious organizations, and
businesses who take certain actions on the basis of
the beliefs that Section 2 singles out for privileged
legal status. The protected conduct includes declining to provide psychological counseling or fertility
services, App. 117a (§ 11-62-5(4)); refusing to provide
services, accommodations, facilities, goods, or privileges related to marriage, including services such as
wedding venue and car service rentals, App. 116a–
118a (§§ 11-62-5(1)(a), (5)); establishing sex-specific
standards or policies concerning employee or student
access to restrooms, App. 118a (§ 11-62-5(6)); and, for
state employees, refusing to license lawful marriages,
App. 118a–119a (§ 11-62-5(8)), and engaging in expressive conduct in the workplace based upon Section
2 beliefs, App. 118a (§ 11-62-5(7)). See generally App.
115a–120a.

 6
HB 1523 provides broad immunity to those who
engage in any of the enumerated acts. The statute
prohibits the “state government”—defined to include
both the State and its political subdivisions, as well
as any private person or third party suing under
state law, App. 124a (§ 11-62-17(2))—from taking
“any discriminatory action” against any entity that
engages in the protected conduct. App. 115a (§ 11-625(1)). “Discriminatory actions” include both private
and public actions. App. 120a–121a (§ 11-62-7).
Private parties who have been denied services or
otherwise injured by the protected conduct may not
sue under any state law or ordinance. App. 124a
(§ 11-62-17(2)(d)). If a private party does sue, HB
1523 provides a defense “in any judicial or administrative proceeding.” App. 121a (§ 11-62-9(1)). The
statute also forbids the state government from responding to the protected conduct by imposing any
tax or licensing consequences, or denying any state
funding (such as grants, contracts, and scholarships).
App. 120a (§ 11-62-7(1)). The state government also
may not discipline state employees who engage in the
privileged conduct, or alter their terms and conditions of employment. App. 121a (§ 11-62-7(1)(g)).
3. a. In June 2016, petitioners—individual citizens and residents of Mississippi and the Joshua
Generation Metropolitan Community Church in
Hattiesburg—filed this suit against Mississippi officials (“the State”), challenging HB 1523 as a violation
of the Establishment and Equal Protection Clauses. 1
One week later, the Campaign for Southern Equality
and Reverend Dr. Susan Hrostowski filed a separate challenge
to HB 1523 on Establishment Clause grounds. The two cases
were consolidated for purposes of the proceedings in the district
(footnote continued)
1

 7
App. 35a. As the district court explained, petitioners
fall into three categories: (1) ministers who disagree
with and object to the beliefs protected by HB 1523;
(2) members of groups targeted by HB 1523 (a man
engaged to marry his male partner, a married lesbian
couple, transgender individuals, and a person in a
non-marital relationship that includes sexual relations); and (3) other citizens who disagree with and
object to the beliefs protected by HB 1523. App. 37a.
Petitioners sought a preliminary injunction to
prevent enforcement of the statute. App. 57a. The
State contended that petitioners lacked Article III
standing to raise their Establishment Clause and
equal-protection challenges. Id.
b. After a hearing, the district court concluded
that petitioners had standing to raise their claims,
and that they were entitled to a preliminary injunction. App. 57a–114a.
With respect to standing, the court explained that
a plaintiff must show (1) that she has “suffered an
injury in fact . . . which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical”; (2) “a causal connection between the
injury and the conduct complained of”; and (3) that it
is “likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992) (internal quotation marks and citations omitted). Because petitioners sought injunctive relief, the
court observed, it would be sufficient to establish that

court and the court of appeals, but the parties filed separate
briefs. See generally App. 1a–160a.

 8
at least one petitioner had standing with respect to
each claim. App. 58a.
The district court concluded that petitioners had
standing to bring their Establishment Clause challenge because they had sufficiently alleged that HB
1523 is “an endorsement and elevation by their state
government of specific religious beliefs over theirs
and all others.” App. 65a. The court explained that
the Supreme Court “has found standing in a wide
variety of Establishment Clause cases” where the
only injury alleged was stigmatic injury caused by the
government’s endorsement of religious beliefs not
shared by the plaintiffs—in other words, harm to “the
religious or irreligious sentiments of the plaintiffs.”
App. 64a. The district court further concluded that
petitioners’ alleged injuries were directly traceable to
HB 1523 and would be redressed by enjoining the
statute. App. 67a–69a. 2
The district court also held that the LGBT petitioners, who are targeted by HB 1523, had standing
to raise their equal-protection challenge. The court
reasoned that “stigmatic injury stemming from discriminatory treatment is sufficient to satisfy standing’s injury requirement.” App. 59a. HB 1523 inflicted that injury by establishing a “broad-based
system by which LGBT persons and unmarried persons can be subjected to differential treatment based
solely on their status.” App. 62a. The court also observed that HB 1523 injured petitioners by “‘withdraw[ing] from homosexuals, [transgender, and unmarried-but-sexually-active persons,] but no others,
The court also concluded that the petitioner church had
associational standing. App. 69a–70a.
2

 9
specific legal protection from the injuries caused by
discrimination, and it forbids the reinstatement of
these laws and policies.’” App. 61a–62a (quoting
Romer v. Evans, 517 U.S. 620, 627 (1996)).
Having concluded that petitioners had standing,
the district court held that petitioners were entitled
to a preliminary injunction. App. 74a–114a. The
court held that petitioners were likely to succeed on
their Establishment Clause claim because HB 1523
impermissibly establishes state-preferred religious
beliefs, App. 97a, and gives Mississippians with those
preferred beliefs “an absolute right to refuse service
to LGBT citizens without regard for the impact on
their employer, coworkers, or those being denied
service,” App. 108a. The court also held that petitioners were likely to succeed on their Equal Protection Clause claim, concluding that, “[a]s in Romer and
[United States v.] Windsor, [133 S. Ct. 2675 (2013),]
the effect of HB 1523 would demean LGBT citizens,
remove their existing legal protections, and more
broadly deprive them their right to equal treatment
under the law.” App. 82a–83a. The court concluded
that petitioners faced irreparable damage from the
statute; indeed, “an almost endless parade of horribles . . . could accompany the implementation of HB
1523.” App. 87a n.32.
4. The court of appeals reversed, holding that petitioners lacked standing to raise their claims under
both the Establishment and Equal Protection Clauses. App. 1a–20a.
With respect to petitioners’ Establishment Clause
challenge, the court recognized that “stigmatic injury” arising from the government’s endorsement of
particular religious beliefs “can be a cognizable Establishment Clause injury.” App. 7a. It concluded,

 10
however, that petitioners’ alleged injury was insufficiently concrete. App. 8a. In the court’s view, a stigmatic injury arising from state action endorsing or
disapproving religious beliefs is sufficiently concrete
only if it arises from a “personal confrontation” with
the action in question. App. 9a. Thus, the court
explained, while it was well established that an individual who encounters a physical religious display or
a religious message written on currency has a direct
and concrete injury sufficient to establish standing,
that injury depended on the plaintiffs’ face-to-face
encounter with the message. App. 9a–10a. Petitioners, by contrast, made “no clear showing of a personal
confrontation with Section 2: The beliefs listed in
that section exist only in the statute itself.” App. 9a.
With respect to petitioners’ equal-protection claim,
the court of appeals held that “[w]hen plaintiffs
ground their equal protection injuries in stigmatic
harm, they only have standing if they also allege
discriminatory treatment.” App. 15a. In the court’s
view, HB 1523 imposed only a “clear message” of
disapproval, rather than any discriminatory treatment. App. 16a. The court rejected petitioners’ argument that HB 1523 partially preempted existing
local anti-discrimination ordinances protecting LGBT
individuals, and therefore denied them legal protections they had previously enjoyed. App. 17a–18a
(citing Romer, 517 U.S. at 623–24). The court reasoned that “HB 1523 preempts the local antidiscrimination policies only in the circumstances
enumerated” in the statute, and therefore petitioners
“would have to allege plans to engage in [the specified] conduct in Mississippi for which they would be
subject to the denial of service and would be stripped
of a preexisting remedy for that denial.” App. 18a.
Having concluded that petitioners lack standing, the

 11
court of appeals did not address the district court’s
ruling that HB 1523 likely violates the Establishment
and Equal Protection Clauses and will inflict irreparable harm on LGBT Mississippians.
4. The court of appeals denied petitioners’ petition
for rehearing en banc. App. 21a. Judge Dennis,
joined by Judge Graves, dissented. App. 23a–34a.
The dissenting judges believed that “the panel opinion committed serious error in concluding that the
plaintiffs lacked standing to bring suit under the
Establishment Clause,” App. 23a, and “unjustifiably
create[d] a split from [the court’s] sister circuits.”
App. 34a.
The dissenting judges argued that the panel’s reliance on religious-display and religious-exercise
cases was misplaced. While in “cases involving challenges to religious exercises or displays, courts have
generally required some sort of physical exposure to
the challenged object or conduct,” in “cases involving
challenges to laws or official policies in the plaintiffs’
own communities,” App. 25a, “the stigmatic harm
that flows from the enactment of the law or the adoption of the policy tending to make the plaintiffs feel
marginalized or excluded in their own community is
sufficient” to establish an injury-in-fact, App. 32a.
That is because “[t]he First Amendment ‘preclude[s]
government from conveying or attempting to convey a
message that religion or a particular religious belief
is favored or preferred’”—which is precisely what HB
1523 does. App. 33a (quoting Cnty. of Allegheny v.
ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593
(1989)). The dissent concluded that the court of appeals’ holding “will thus deny citizens a forum in
which to challenge ‘the evils against which the Estab-

 12
lishment Clause was designed to protect.’” App. 34a
(quoting Mueller v. Allen, 463 U.S. 388, 399 (1983)).
5. On October 9, 2017, the Fifth Circuit issued the
mandate in the case, allowing HB 1523 to take effect.
REASONS FOR GRANTING THE PETITION
In Obergefell v. Hodges, 135 S. Ct. 2584 (2015),
this Court held that marriage is a fundamental right
that must be available to same-sex couples on the
same terms as to different-sex couples. In response,
Mississippi enacted HB 1523, which grants broad
immunity to religiously motivated denials of goods
and services to same-sex couples and transgender
individuals. HB 1523 “put[s] the imprimatur of the
State itself” on religious opposition to same-sex marriage, thereby creating a regime that “demeans [and]
stigmatizes” same-sex couples and denies them equal
treatment under the law. Id. at 2602. That is precisely the harm that Obergefell sought to rectify.
Indeed, the district court concluded that “[t]he title, text, and history of HB 1523 indicate that the bill
was the State’s attempt to put LGBT citizens back in
their place after Obergefell.” App. 81a. HB 1523 is
thus simply the latest example of a state measure
enacted to counteract this Court’s decisions protecting the rights of LGBT individuals. Just as “Lawrence [v. Texas, 539 U.S. 558 (2003)] . . . birthed the
state constitutional amendments” prohibiting marriage of same-sex couples, “now Obergefell has led to
HB 1523.” App. 44a.
In order to safeguard the promise of Obergefell
and protect their rights as full citizens of Mississippi,
petitioners challenged HB 1523 as a violation of the
Establishment Clause and the Equal Protection
Clause. The court of appeals’ conclusion that peti-

 13
tioners lack standing has sweeping and unacceptable
implications. Under the court of appeals’ reasoning,
the State could enact a law declaring Christianity,
Hinduism, or any other faith to be the official state
religion, and no one would have standing to challenge
that unconstitutional endorsement of religion, absent
some sort of physical manifestation of that law. Unsurprisingly, the court of appeals’ decision denying
standing conflicts with this Court’s precedent and the
decisions of other courts of appeals.
The standing question is an important and recurring one: in the wake of Obergefell, many other state
legislatures have introduced similar proposals intended to privilege religiously motivated refusals to
serve same-sex couples and transgender individuals.
The court of appeals’ decision will likely embolden
still others. This Court should grant review to bring
clarity to the standards governing standing to challenge such statutes.
I.

This Court Should Review The Court Of
Appeals’ Conclusion That Petitioners Lack
Standing To Bring Their Establishment
Clause Challenge.

The court of appeals’ conclusion that petitioners
lack standing to challenge HB 1523 under the
Establishment Clause conflicts with decisions of
three other circuit courts. App. 24a (recognizing that
the panel’s decision “creates a conflict between [the
Fifth Circuit] and [its] sister circuits on the issue of
Establishment Clause standing”). The decision is
also unsupportable. The court acknowledged that HB
1523 “endorse[s]” particular religious beliefs against
same-sex marriage and transgender individuals.
App. 7a.
The court also acknowledged that
psychological or spiritual harm arising from

 14
government endorsement of particular religious
beliefs “can be a cognizable Establishment Clause
injury.” Id. Yet the court held that petitioners’
injury is insufficiently concrete because HB 1523 is a
statute that, unlike a monument or other tangible
religious display, cannot be personally encountered in
the physical world. That conclusion is baseless.
Under the court of appeals’ view, when the State
engages in the most powerful act of endorsement
available to it—enacting its preference for particular
religious beliefs into state law—no plaintiff will have
standing to challenge that action as a violation of the
Establishment Clause.
This Court’s review is
warranted to correct the court of appeals’ “grievous
error.” App. 34a (Dennis, J., dissenting from denial
of rehearing en banc).
A.

The Court Of Appeals’ Decision Conflicts With The Decisions Of Three
Other Circuits.

1. In Catholic League for Religious and Civil
Rights v. City of San Francisco, 624 F.3d 1043, 1048–
53 (9th Cir. 2010) (en banc), the Ninth Circuit held
that “a Catholic civil rights organization and two
devout Catholics” had standing to challenge a San
Francisco resolution expressing disapproval of the
Catholic Church’s policy against adoption by samesex parents. Because the resolution did not impose
any actual disability on Catholic charities or individuals, the plaintiffs alleged only that “the resolution
conveys a government message of disapproval and
hostility toward their religious beliefs.” Id. at 1048.
The court explained that the plaintiffs had a sufficiently concrete and personal injury because they
were Catholic residents of San Francisco, and therefore were “members of the community who have had

 15
contact with the resolution and have suffered spiritual harm as a result.” Id. By disapproving specific
religious beliefs and endorsing others, the resolution
“sends a message to nonadherents that they are outsiders, not full members of the political community.”
Id. at 1049 (quoting Lynch v. Donnelly, 465 U.S. 668,
688 (1984)). To hold otherwise, the court stated,
would mean that a “resolution declaring Catholicism
to be the official religion of the municipality would be
effectively unchallengeable.” Id. at 1048.
In reaching its conclusions, the court drew an
analogy to cases involving religious displays such as
crosses on government property or on city seals. The
court observed that “[t]he harm to the plaintiffs in
those cases was spiritual or psychological harm,” and
“[t]hat is the harm plaintiffs claim here.” Id. at
1050–51. Indeed, the court stated, it would be “difficult” to “distinguish[]” the religious display cases
“convincingly.” Id. at 1051.
The Ninth Circuit’s decision directly conflicts with
the decision below. Like the San Francisco resolution
at issue there, HB 1523 takes an official position on a
matter of religious belief. The court of appeals asserted that Catholic League was distinguishable because the resolution at issue there disparaged an
“identified religion,” while HB 1523 does not. App.
13a n.9. That is incorrect. The Ninth Circuit expressly acknowledged that the resolution was indistinguishable, for standing purposes, from a resolution
adopting Catholicism as the City’s official religion—
even though such a resolution would not disparage
any identified religion. Catholic League, 624 F.3d at
1048; id. at 1052 (concrete psychological harm is
caused by “government condemnation of one’s own
religion or endorsement of another’s in one’s own

 16
community”) (emphasis added); see Awad v. Ziriax,
670 F.3d 1111, 1122–23 (10th Cir. 2012) (standing
exists even when a religious display does not “expressly target and condemn a specific religion”). Like
the plaintiffs in Catholic League, petitioners do not
adhere to the beliefs endorsed by the government,
and as residents of the community, they have had
“contact” with the statute “and have suffered spiritual harm as a result.” Catholic League, 624 F.3d at
1048.
2. Similarly, in Awad, 670 F.3d at 1123, the
Tenth Circuit held that a Muslim plaintiff had standing to challenge a proposed amendment to the Oklahoma Constitution banning courts from considering
Sharia law. The court held that the plaintiff had
sufficiently alleged a concrete injury arising from
“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). “As a Muslim
and citizen of Oklahoma,” the court reasoned, the
plaintiff was “directly affected by the law.” Id. Like
the Ninth Circuit, the Awad court recognized that the
stigmatic injury inflicted by the proposed amendment
was indistinguishable from the harm inflicted by
religious displays. Id. at 1121. Under the Tenth
Circuit’s reasoning, petitioners have alleged a sufficiently concrete injury arising from HB 1523.
The court below concluded, however, that Awad
was distinguishable because there the plaintiff also
alleged that the amendment, if adopted, would prevent Oklahoma courts from someday probating his
will. App. 12a. But the Awad court did not rely on
that allegation in finding standing. After describing
the stigmatic harm inflicted by the proposed amend-

 17
ment’s message of condemnation, the court stated
that “that is enough to confer standing.” Awad, 670
F.3d at 1122. The court went on to describe the
amendment’s potential effect on Awad’s will as an
injury “beyond” the stigmatic harm necessary to establish standing. Id.
3. In Moss v. Spartanburg County School District
Seven, 683 F.3d 599 (4th Cir. 2012), the Fourth
Circuit held that a non-Christian high-school student
and her father had standing to challenge a school
district policy allowing students to receive academic
credit for private, off-campus Christian religious
instruction. The court rejected the argument that the
parents lacked standing simply because their
children had not participated in the private religious
course or been harassed in any way for not
participating. Id. at 603, 607. Instead, recognizing
that “[m]any of the harms that Establishment Clause
plaintiffs suffer are spiritual and value-laden, rather
than tangible and economic,” id. at 605 (internal
quotation marks omitted), the court held that the
parents had standing because the school’s “alleged
Christian favoritism made them feel like ‘outsiders’
in their own community,” id. at 607; accord Int’l
Refugee Assistance Project v. Trump, 857 F.3d 554,
582–83 (4th Cir.) (en banc) (holding that “feelings of
marginalization and exclusion” gave rise to injury
sufficient to challenge order suspending entry from
seven Muslim-majority countries), cert. granted, 137
S. Ct. 2080 (2017). Like the school district policy at
issue in Moss, HB 1523 is a state-sanctioned message
that sends a message to the plaintiffs and other
nonadherents “that they are outsiders, not full
members,” of their own Mississippi communities.
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309
(2000).
Under the Fourth Circuit’s reasoning,

 18
petitioners have alleged the precise type of
nontangible, value-laden harms that are sufficient to
confer Establishment Clause standing.
B.

The Court Of Appeals Incorrectly Concluded That Petitioners Lack Standing
To Bring Their Establishment Clause
Challenge.

Under the Establishment Clause, a State “may
not aid, foster, or promote one religion or religious
theory against another.” Epperson v. Arkansas, 393
U.S. 97, 104 (1968). The State violates that core
constitutional protection not only when it establishes
a religion or a religious practice, but also when it
purposefully “endorses” one religion over another, or
religion over nonreligion. Santa Fe, 530 U.S. at 309–
10. In the context of challenges to state enactments,
this Court has made clear that one of the injuries
against which the Establishment Clause protects is
“the mere passage by the [government] of a policy
that has the purpose and perception of government
establishment of religion.” Id. at 314. State “sponsorship of a religious message is impermissible because it sends the ancillary message to members of
the audience who are nonadherents 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.” Id. at 309–10 (internal quotation marks
omitted).
The injury caused by state endorsement of a
religious message is thus the psychological or
spiritual harm that arises when a member of the
community receives the government’s message and
feels denigrated or excluded. See id.; McCreary Cnty.
v. ACLU of Ky., 545 U.S. 844, 860 (2005). A plaintiff

 19
may therefore establish standing to challenge the
government’s endorsement of particular religious
beliefs by alleging stigmatic injury resulting from the
endorsement. App. 27a (Dennis, J., dissenting from
denial of rehearing en banc) (Santa Fe’s “explication
of the relevant constitutional injuries against which
the Establishment Clause guards” is highly relevant
to standing).
That stigmatic injury must, of course, be
sufficiently concrete: the plaintiff must allege that
she is “directly affected” by the challenged
endorsement. Valley Forge Christian Coll. v. Ams.
United for Separation of Church and State, Inc., 454
U.S. 464, 486 n.22 (1982).
In the context of
challenges to religious displays on state property,
courts have found the requisite “direct effect” when
the plaintiff alleges that she is a member of the
community and a nonadherent of the religious beliefs
promoted by the government, that she has had
unwelcome contact with the display, and that hearing
the government’s message caused her stigmatic
injury. See, e.g., Awad, 670 F.3d at 1122; Am.
Atheists, Inc. v. Davenport, 637 F.3d 1095, 1113 (10th
Cir. 2010) (standing to challenge roadside crosses);
Van Orden v. Perry, 545 U.S. 677, 682 (2005)
(adjudicating challenge to Ten Commandments
monument on state property without discussing
standing, where plaintiff alleged that “he has
encountered the Ten Commandments monument
during his frequent visits to the Capitol grounds”);
Cnty. of Allegheny, 492 U.S. at 588 (adjudicating
challenge by local residents to holiday display on
county property).
Petitioners have alleged that HB 1523 has caused
them precisely the same direct and personal injury.

 20
If anything, HB 1523 inflicts a much more concrete
injury than any religious display. Enshrining particular religious beliefs in a state statute is the most
emphatic endorsement the State can make—it represents the State’s official and considered policy, and it
is intended to govern all state citizens. Indeed, the
First Amendment itself recognizes as much, stating
that “Congress shall make no law . . . respecting an
establishment of religion.” U.S. Const. amend. I
(emphasis added). By endorsing its preferred religious beliefs in a statute, the State left no ambiguity
about its position: it believes that religious opposition
to marriage between same-sex spouses, and the other
Section 2 beliefs, should be privileged under state
law, while opposing views should not. 3 See Catholic
League, 624 F.3d at 1050 n.20 (“A symbol such as a
crèche on the city hall lawn is ambiguous. . . . The
resolution at issue, like a symbol, conveys a message,
but unlike a symbol, the message is unambiguous.”).
The statute thus unmistakably conveys to those who
hold the disfavored views that they are “outsiders,
not full members of the political community.” Santa
Fe, 530 U.S. at 309–10.
Petitioners are directly affected by HB 1523. They
“are citizens of Mississippi and are subject to its
3

The fact that HB 1523 privileges “moral” as well as religious beliefs does not alter or dilute the State’s clear endorsement of the enumerated religious beliefs. The mere addition of
the word “moral” does not create a broader context that “neutraliz[es] the religious content” or “negates any message of
endorsement.” Lynch v. Donnelly, 465 U.S. 668, 692 (1984)
(O’Connor, J., concurring); see Adland v. Russ, 307 F.3d 471, 489
(6th Cir. 2002) (concluding that disclaimer of secular purpose
did not dilute Ten Commandments’ message of religious endorsement).

 21
laws.” App. 28a (Dennis, J., dissenting from denial of
rehearing en banc). Petitioners are aware of the
statute and its protection of discrimination based on
particular religious beliefs. Indeed, HB 1523 protects
the belief that some of the petitioners’ marriages to
same-sex spouses are wrong and that transgender
individuals’ gender identity should not be acknowledged—thus placing the State’s imprimatur on religious beliefs that not only conflict with petitioners’
beliefs, but that repudiate central aspects of petitioners’ lives, families, and identities. Each day, as petitioners live and work in the State, they must do so
with the knowledge that their government has chosen
to endorse religious beliefs condemning their lives
and relationships and very existence, and that their
government has permitted government officials, individuals, businesses, and organizations to freely discriminate against them. This is a direct and concrete
injury. See Awad, 670 F.3d at 1122.
The court of appeals asserted, however, that petitioners’ injury is insufficiently direct because HB
1523, unlike a religious display, cannot be physically
encountered. App. 9a–11a. That literal-minded reasoning cannot withstand scrutiny. The purpose of
requiring a plaintiff challenging a religious display to
allege a “personal encounter” with the display is
simply to ensure that the plaintiff has a personal
stake—that she herself has been subjected to the
government’s message of endorsement.
Catholic
League, 624 F.3d at 1048 (“Had a Protestant in Pasadena brought this suit, he would not have had standing. Catholics in San Francisco, on the other hand,
have sufficient interest.”). There is no talismanic
significance to the face-to-face confrontation with a
monument or other tangible display. The court of
appeals’ reasoning suggests that a citizen would have

 22
standing to challenge HB 1523 if the State publicly
displayed the law’s text on a billboard outside the
state capitol building, but that the citizen lacks
standing when confronted with the knowledge that
the offending statute is the enacted law of the State.
In both instances, the harm on which standing is
based is the feeling of exclusion and subordination
that results from the State’s conveyance of its message. Santa Fe, 530 U.S. at 309–10. Here, there can
be no question that petitioners have been personally
subjected to the State’s message of exclusion: they are
aware of the statute and, as citizens of Mississippi,
are governed by it. As Judges Dennis and Graves
concluded, that is sufficient. App. 25a (Dennis, J.,
dissenting from denial of rehearing en banc). To
conclude otherwise would be to hold that no plaintiff
would ever have standing to challenge a state statute
endorsing particular religious beliefs—even one declaring that Christianity is the State’s official religion—absent a physical manifestation that the plaintiff could encounter. Catholic League, 624 F.3d at
1048. That cannot be the law.
The court of appeals was also incorrect in concluding that petitioners’ claims are merely a generalized
grievance. See Valley Forge, 454 U.S. at 483–85. The
rule that a plaintiff may not establish standing by
alleging that she shares “the generalized interest of
all citizens in constitutional governance” is simply
another way of expressing the principle that a plaintiff must have a personal stake in the challenged
action. Id. at 483. In Valley Forge, for instance, the
plaintiffs, residents of the Washington, D.C. area,
challenged a land conveyance from the government to
a religious college in Pennsylvania. They had no
personal nexus to the challenged government action—they had learned of the action in the press—

 23
and thus their stake in the litigation amounted only
to a generalized interest in the legality of the government’s conduct. Id. at 485. Here, by contrast,
petitioners are personally affected for the reasons
stated above. See App. 24a–34a (Dennis, J., dissenting from denial of rehearing en banc). To be sure,
their injury may be widely shared among nonadherents in Mississippi—but that is simply a function of
the State’s use of a statute to endorse its favored
beliefs. That does not make petitioners’ injury a
generalized grievance. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1548 n.7 (2016), as revised (May 24,
2016) (“The fact that an injury may be suffered by a
large number of people does not of itself make that
injury a nonjusticiable generalized grievance. The
victims’ injuries from a mass tort, for example, are
widely shared, to be sure, but each individual suffers
a particularized harm.”).
II.

This Court Should Also Review The Court
Of Appeals’ Conclusion That Petitioners
Lack Standing To Bring Their Equal Protection Clause Challenge.

The court of appeals’ conclusion that petitioners
lack standing to bring their equal-protection claim
also warrants review. The court wrongly held that
HB 1523 sends only a “discriminatory message.”
App. 15a. To the contrary, the statute establishes an
unequal legal regime bestowing benefits only on adherents to Section 2 beliefs and permitting those
adherents to discriminate against LGBT individuals
with impunity. That disparate treatment demeans
and stigmatizes petitioners and relegates them to
second-class status. HB 1523 also preempts antidiscrimination ordinances that previously protected
LGBT individuals, and limits the scope of any similar

 24
ordinances enacted in the future. As other courts of
appeals have recognized, the discriminatory legal
regime established by HB 1523 inflicts a concrete
injury in fact.
A.

The Court Of Appeals’ Decision Conflicts With Decisions Of Other Circuits.

The court of appeals’ decision creates a conflict in
the circuits as to whether an allegation of stigmatic
harm arising from unequal treatment confers standing to bring an equal-protection claim. In Hassan v.
City of New York, 804 F.3d 277, 284 (3d Cir. 2015),
the Third Circuit concluded that plaintiffs of the
Islamic faith had standing to challenge a government-surveillance program allegedly directed at Muslim individuals and institutions. Although the plaintiffs did not allege that they had personally been
surveilled or necessarily would be surveilled, the
court held that the existence of a program directed
only at Muslims inflicted “the indignity of being singled out . . . for special burdens.” Id. at 289. Unequal treatment, the court reasoned, “is a type of personal injury [that] ha[s] long [been] recognized as
judicially cognizable, and virtually every circuit court
has reaffirmed—as has the Supreme Court—that a
discriminatory classification is itself a penalty, and
thus qualifies as an actual injury for standing purposes, where a citizen’s right to equal treatment is at
stake.” Id. at 289–90 (internal quotation marks and
citations omitted). That reasoning would apply here
too: by immunizing discrimination against LGBT
individuals, HB 1523 “single[s] out” those individuals
for “special burdens” not shared by other Mississippi
citizens. Id. at 289.
Similarly, the Fourth Circuit held in Planned
Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 790

 25
(4th Cir. 2004), in the context of an analogous First
Amendment challenge, that plaintiffs had established
injury arising from the fact that the State offered
“pro-life” but not “pro-choice” license plates. Because
there were no pro-choice license plates for the
plaintiffs to obtain in any event, the sole alleged
injury was the disparate treatment. Relying on equal
protection cases and applying the analysis “typically
seen in equal protection cases,” id., the court
explained that the plaintiffs alleged injury arising
from “the discriminatory treatment they suffer from
the State’s use of the license plate forum to promote
one political viewpoint (pro-life) in the debate about
abortion.” Id. at 790. That discriminatory treatment
“is a harm that is sufficiently particular to qualify as
an actual injury for standing purposes.” Id.; see also
ACLU of N.M. v. Santillanes, 546 F.3d 1313, 1319
(10th Cir. 2008) (finding injury in fact arising from
“the denial of equal treatment” where plaintiffs would
be required to show photo identification if they voted
in person but not if they voted absentee).
B.

The Court Of Appeals Incorrectly Concluded That Petitioners Lack Standing
To Bring Their Equal-Protection
Claim.

The court of appeals concluded that petitioners
lack standing to challenge HB 1523 on equalprotection grounds because the statute merely “expos[es]” them “to a discriminatory message, without a
corresponding denial of equal treatment.” App. 15a.
That is incorrect: HB 1523 is a gross denial of equal
treatment, and petitioners have sufficiently alleged
injury in fact.
1. This Court has repeatedly held that the denial
of equal treatment to particular individuals solely

 26
because of “their membership in a disfavored group”
gives rise to a concrete injury in fact. Heckler v.
Mathews, 465 U.S. 728, 739–40 (1984). “[D]iscrimination itself, by perpetuating archaic and stereotypic
notions or by stigmatizing members of the disfavored
group as innately inferior and therefore as less worthy participants in the political community,” causes
serious “non-economic injuries to those persons who
are personally denied equal treatment.” Id. (internal
quotation marks and citations omitted). The Court
has also held that a cognizable denial of equal treatment occurs when the government provides a less
favorable legal regime to a disfavored class—
regardless of whether members of the class are actually denied benefits as a result. See Ne. Fla. Chapter
of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). “The ‘injury in
fact’ in an equal-protection case of this variety is the
denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain
the benefit.” Id.
HB 1523 subjects petitioners to discriminatory
treatment in at least two ways. First, it bestows legal
privileges only on those who subscribe to the Section
2 beliefs, immunizing their denials of service to samesex couples and transgender individuals. By conferring sweeping immunity from private suits and state
action on those who act on the Section 2 beliefs, the
statute leaves a disfavored group of people with no
recourse—legal or otherwise—when they are (for
example) denied health care or psychological counseling, or denied services in connection with their wedding.
That is the definition of unequal treatment under
the law. HB 1523 establishes an unequal legal re-

 27
gime, both creating a favored class of people and
allowing them to deny with impunity a range of services to another, disfavored, class of people. There is
no question that if the statute permitted businesses
to deny service on the basis of race, that discriminatory regime—its relegation of racial minorities to
“innately inferior” status—would give rise to injury in
fact. Heckler, 465 U.S. at 739–40.
Second, HB 1523 partially preempts existing local
anti-discrimination policies and would limit the scope
of any local protections petitioners could hope to secure in the future. The statute is thus analogous to
the Colorado constitutional amendment invalidated
in Romer v. Evans, 517 U.S. 620 (1996). That
amendment “operate[d] to repeal and forbid all laws
or policies providing specific protection for gays or
lesbians from discrimination by every level of Colorado government,” and also “bar[red] homosexuals from
securing protection against the injuries that these
public-accommodations laws address.” Id. at 629.
The amendment imposed a “special disability” on
gays and lesbians, and therefore violated the Equal
Protection Clause. Id. at 631. To be sure, the Court
in Romer did not address the challengers’ standing
because the case arose out of the State’s appeal of a
state-court injunction. But the Court’s description of
the equal-protection violation effectively defines the
injury for standing purposes. Warth v. Seldin, 422
U.S. 490, 500 (1975) (standing “often turns on the
nature and source of the claim asserted”). The “actual or threatened injury required by Article III” arises
from a violation of the substantive protections of the
Equal Protection Clause. Id. The Equal Protection
Clause protects against the “special disability” that
results when a statute rolls back a targeted class’s
existing protections and makes other protections

 28
harder to obtain; therefore, the government’s imposition of that disability inflicts injury in fact. 4 That is
exactly what petitioners have alleged here.
2. The court of appeals wrongly held that petitioners’ alleged injuries are insufficiently “certain[]”
because petitioners have not alleged that they will be
subject to specific denials of service at the hands of
people protected by HB 1523. App. 18a. But petitioners’ injury in fact arises from the unequal treatment embedded in the statute itself, not from potential future instances of discrimination abetted by the
law. It is the statute that denies equal treatment by
establishing a legal regime that favors proponents of
the Section 2 beliefs, and by preempting existing
ordinances and impeding future ones. The statute
thus imposes a special legal disability on petitioners—individuals who do not subscribe to Section 2
beliefs and may be discriminated against under HB
1523. The existence of that injury does not turn on
whether petitioners ultimately are denied services in
reliance on HB 1523. See Ne. Fla., 508 U.S. at 666;
Peyote Way Church of God, Inc. v. Thornburgh, 922
F.2d 1210, 1214 n.2 (5th Cir. 1991) (“[I]llegitimate
unequal treatment is an injury unto itself, ‘not coextensive with any [injury due to the denial of] substantive rights to the . . . party discriminated against.’”
(quoting Heckler, 465 U.S. at 739)).

Any other conclusion would lead to the odd result that
a plaintiff could raise a Romer-type claim only in state court.
4

 29
III. This Court’s Review Is Warranted To Resolve Important And Recurring Questions
Concerning Standing Under The Establishment Clause And The Equal Protection
Clause.
A. The question whether a plaintiff has standing
to challenge a state statute that permits businesses
and government officials to deny services to LGBT
individuals on religious grounds is important and
bound to recur. HB 1523 is a test balloon for a fleet
of similar religious-objection laws targeting LGBT
people that have already been introduced in state
legislatures around the country. 5
The sheer
prevalence of those measures demonstrates the
pressing need to address state attempts to use
religious exemptions to undermine rights to equality
and dignity of LGBT people established under this
Court’s recent landmark cases. These religiousobjection provisions are therefore certain to be
challenged on the ground that they violate the First
and Fourteenth Amendments and erode the promise
and protection of Obergefell. State defendants are
likely to respond, as did respondents here, by
challenging the plaintiffs’ standing.
For example, bills in Arkansas, Oklahoma, Texas, and
Wyoming, all resembling Mississippi’s HB 1523, were introduced in 2017 but did not pass during the pendency of this case.
See H.B. 2232, 91st Gen. Assemb., Reg. Sess. (Ark. 2017); S.B.
197, 56th Leg., Reg. Sess. (Okla. 2017); 85th Leg., Reg. Sess.,
H.B. 2779 (Tex. 2017); H.B. 135, 64th Leg., Reg. Sess. (Wyo.
2017). Links to bill text are available at http://www.protectthy
neighbor.org/state-legislation-2017#2017FADA. Similarly, an
Ohio bill would permit any business to refuse on religious
grounds to participate in marriage ceremonies of same-sex
couples. H.B. 296, 131st Gen. Assemb., Reg. Sess. (Ohio 2015).
(footnote continued)
5

 30
The disagreement among the circuits concerning
the allegations necessary to establish injury in fact in
challenges to statues privileging particular religious
beliefs will produce different outcomes for persons
who are similarly situated for standing purposes. If
Oklahoma residents challenge an Oklahoma
religious-objection statute, for instance, they will
have standing under Tenth Circuit precedent
(namely, Awad, supra) in the circumstances alleged
here.
This Court should therefore resolve the
disagreements among the circuits in order to ensure
uniformity and to provide guidance to litigants in
these challenges.
B. This Court’s grant of certiorari in Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission,
137 S. Ct. 2290 (June 26, 2017), underscores the
importance of addressing state attempts to limit
Obergefell by creating unprecedented religious exemptions to generally applicable laws.
Masterpiece Cakeshop, which concerns a baker
who declined to create a cake for a wedding of a
same-sex couple, presents the question whether “applying Colorado’s public accommodations law to comIn addition, numerous other bills have been introduced but were
not passed before the legislatures adjourned. Those bills could
be reintroduced at subsequent sessions—particularly if the Fifth
Circuit’s decision in this case is allowed to stand. See, e.g., S.B.
2158, 89th Leg., Reg. Sess. (Minn. 2015) (permitting businesses,
individuals, and government employees to refuse service or
refuse to recognize a marriage that conflicts with their religious
beliefs); H.B. 2215, 55th Leg., Reg. Sess. (Okla. 2015) (requiring
individuals in their marriage applications to state whether they
have undergone sex reassignment surgery); H.B. 1599, 55th
Leg., Reg. Sess. (Okla. 2015) (penalizing any government employee who recognizes, grants, or enforces same-sex marriages).

 31
pel the [baker] to create expression that violates his
sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the
First Amendment.” Petition for a Writ of Certiorari
at i, Masterpiece Cakeshop (No. 16-111). Masterpiece
Cakeshop thus does not concern whether a state law
endorsing specific religious beliefs and privileging
refusals to serve same-sex couples, among others,
violates the Establishment Clause or the Equal Protection Clause. Nor does Masterpiece Cakeshop concern the specific questions presented here—namely,
whether petitioners have standing to raise those
claims. The Court’s decision in Masterpiece Cakeshop
therefore will not affect the questions presented in
this case or obviate the need for review.
To the contrary, whichever way the Court rules in
Masterpiece Cakeshop, its decision is likely to make
the questions presented here even more important,
by spurring more state enactments like Mississippi’s.
If the Court rejects the baker’s claim and concludes
that the challenged application of Colorado’s publicaccommodations law does not violate the First
Amendment, states will be more likely to pass laws
like HB 1523. In the absence of a First Amendment
exemption to public-accommodations laws, statutes
like HB 1523 may be perceived as necessary to protect individuals’ ability to deny services based on
religious disapproval of marriages of same-sex couples. That will result in increased litigation presenting the same standing questions at issue here.
Conversely, if the Court accepts the baker’s argument that the Colorado public-accommodations law
unconstitutionally compels him to engage in expressive conduct that violates his religious beliefs, that
holding will not necessarily resolve the question

 32
whether individuals may decline to provide nonexpressive services on the basis of their religious beliefs. A decision in the baker’s favor therefore would
be unlikely to curtail enactment of laws that, like HB
1523, immunize individuals who deny a broad range
of non-expressive services on religious grounds. See,
e.g., App. 117a–118a (§ 11-62-5(5)(b)) (prohibiting
state action against those who refuse to provide limousine service or rent venues to same-sex couples);
App. 117a (§ 11-62-5(4)) (prohibiting state action
against individual who “declines to participate in the
provision of treatments, counseling, or surgeries” on
the basis of section 2 beliefs); H.B. 296, 131st Gen.
Assemb., Reg. Sess. (Ohio 2015) (general refusal to
provide commercial services); Pub. Ch. 926, S.B. 926,
109th Gen. Assemb., Reg. Sess. (Tenn. 2016) (refusal
to treat).
However the Court decides Masterpiece Cakeshop,
therefore, litigation concerning statutes like HB
1523—and questions concerning plaintiffs’ standing
to bring such challenges—are likely to arise frequently in the future. This Court should grant review to
resolve these important and recurring questions.

 33
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
PAUL M. SMITH
600 New Jersey Ave. NW
Washington, DC 20001

DONALD B. VERRILLI, JR.
Counsel of Record
GINGER D. ANDERS
ADELE M. EL-KHOURI
MUNGER, TOLLES & OLSON LLP
1155 F Street NW 7th Floor
Washington, DC 20004
(202) 220-1100
Donald.Verrilli@MTO.com

ROBERT B. MCDUFF
767 North Congress Street
Jackson, MS 39202

SUSAN L. SOMMER
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, NY 10005

BETH L. ORLANSKY
MISSISSIPPI CENTER FOR
JUSTICE
P.O. Box 1023
Jackson, MS 39215-1023

ELIZABETH LITTRELL
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
730 Peachtree Street, Suite 640
Atlanta, GA 30308

October 10, 2017