by Travis Weber
June 22, 2017
Today, in a unanimous opinion, the U.S. Court of Appeals for the Fifth Circuit rejected an activist effort to take down HB 1523, Mississippi’s conscience protection law. HB 1523 provides exemptions for those who conscientiously object to being forced to facilitate same-sex marriages and other matters related to human sexuality, and allows them to opt out of the process while providing for other government workers or entities to step in and fill the gap.
Despite the fact that it is nothing more than a reasonable accommodation paradigm, the law was violently attacked with allegations that it was standing in the way of LGBT people, and a lawsuit was launched on the theory that it “established” a religion in violation of the First Amendment and violated the Equal Protection Clause of the Fourteenth Amendment.
But in order to sue—under a doctrine known as “standing”—a plaintiff needs an injury, and all that was alleged in this case was that the plaintiffs were “stigmatized” and felt bad because of the law. Courts have been facing this type of tenuous, emotionally-based allegation of injury more and more in recent years, and they only bog down the judicial system with claims that were never meant to be brought in the first place. In addition, when such claims are allowed to proceed, and a law is struck down, the effect is that one more area of our democratic process is chiseled off and placed into the hands of activists who would happily destroy the process if that meant they could achieve their aims.
It is thus nice to see the Fifth Circuit properly scrutinize standing in this case, and hold that the plaintiffs here have no actual injury on which any lawsuit could be based. To bring suit, a plaintiff needs a “concrete” and “particularized” injury, and even in Establishment Clause religious display cases where standing rules are more liberal, a plaintiff still needs to have a “personal confrontation” with any allegedly offensive display. Yet as the court pointed out, “[j]ust as an individual cannot ‘personally confront’ a warehoused monument, he cannot confront statutory text.”
The Court also rejected the idea that “offense at the message Section 2 [of HB 1523]” could convey standing, noting that any “purported stigmatic injury” is insufficient. Likewise, there is no standing for any equal protection claim because “exposure to a discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead injury in an equal protection case.”
All too often, activists without a mandate to achieve change through the democratic means set forth by our constitutional order will try to find some court through which to push their grievances against a law or policy. However, as is the case here, such “injuries” often constitute nothing more than general disagreement with the law and are subjective, lacking any actual harm. The unfortunate effect is that these activists’ methods chip away at and weaken our entire judicial system.
It is thus heartening to see this ruling, which not only leaves in place HB 1523’s religious exemptions which are quite necessary in a post-Obergefell world, but also strengthens the constitutional order by holding in check those who try to wield power through the courts simply because they can’t achieve their goals through democratic means.