Rims Barber v. Phil Bryant
872 F.3d 671
| 5th Cir. | 2017Background
- Plaintiffs (Mississippi residents and organizations, including LGBT individuals/couples) challenge Mississippi HB 1523, alleging it endorses certain religious beliefs and grants immunities permitting discrimination against LGBT persons.
- HB 1523 enumerates protected "religious beliefs or moral convictions" (traditional marriage, sex within such marriage, and sex as biological at birth) and provides exemptions/privileges to adherents (e.g., foster-care, counseling, public-accommodation, licensing recusal).
- Plaintiffs claim the statute sends a government message that non-adherents are "outsiders" and adherents are "insiders," violating the Establishment Clause by stigmatic harm.
- A three-judge panel (Barber v. Bryant) concluded plaintiffs lacked standing to sue under the Establishment Clause; Judge James L. Dennis dissented from denial of rehearing en banc.
- The dissent argues precedents permit standing based on stigmatic harm in one’s own political community from laws or official policies that endorse religion, and that the panel misapplied standing doctrine, creating a circuit split.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring Establishment Clause challenge to a state statute | Plaintiffs allege stigmatic harm: HB 1523 endorses religion and marginalizes non-adherents in their community, which suffices as injury-in-fact | Defendants contend plaintiffs lack concrete, particularized injury; comparing to Valley Forge, plaintiffs assert only generalized grievance | Dissent: plaintiffs have standing; stigmatic injury within one’s own community from a state law is a cognizable injury for Establishment Clause claims (panel held otherwise) |
| Whether physical or direct exposure is required for Establishment Clause standing | Plaintiffs: physical confrontation is not required where a law/policy in one’s community conveys exclusionary message | Defendants: prior cases required personal confrontation or direct exposure to a religious exercise/display | Dissent: precedents (Santa Fe, Catholic League, IRAP, Moss) establish that enactment of law/policy causing feelings of exclusion suffices; panel erred in demanding physical exposure |
| Applicability of Supreme Court precedent (Santa Fe, Valley Forge) | Plaintiffs rely on Santa Fe’s recognition that passage of policy with perceived purpose of establishment produces injury; distinguish Valley Forge because plaintiffs are residents affected by state law | Defendants rely on Valley Forge to argue standing would permit generalized grievances nationwide | Dissent: Santa Fe governs injurious message; Valley Forge is distinguishable because plaintiffs here are governed by the law in their own state |
| Circuit consistency and precedent weight | Plaintiffs cite sister circuits (9th, 4th, others) recognizing stigmatic harm in one’s community as sufficient for standing | Defendants argue Fifth Circuit precedent requires more concrete contact | Dissent: Fifth Circuit precedent does not mandate physical confrontation and should align with sister circuits; panel’s holding creates an inter-circuit split |
Key Cases Cited
- Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (Establishment Clause injury includes governmental policies that convey endorsement and marginalize non-adherents)
- Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (standing limits; generalized grievance doctrine)
- Cnty. of Allegheny v. ACLU, 492 U.S. 573 (government may not convey message that a particular religious belief is favored)
- Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (standing based on direct harm from alleged establishment of religion)
- McCreary Cty. v. ACLU, 545 U.S. 844 (state action that sends message of exclusion to nonadherents violates Establishment Clause principles)
- Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. en banc) (stigmatic harm and exclusionary message from government policy can confer standing)
- Catholic League for Religious & Civil Rights v. City & Cty. of S.F., 624 F.3d 1043 (9th Cir. en banc) (psychological/stigmatic harm in one’s community can be concrete injury for standing)
- Moss v. Spartanburg County Sch. Dist. Seven, 683 F.3d 599 (4th Cir.) (feelings of marginalization from official Christian favoritism are cognizable injury)
- Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir.) (standing inquiry in Establishment Clause cases tailored to likely injuries; direct exposure to policy sufficed)
- Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494 (5th Cir.) (recognizing non-economic/intangible injury in Establishment Clause context)
- Barber v. Bryant, 860 F.3d 345 (5th Cir.) (panel opinion holding plaintiffs lack standing; subject of the dissent)