IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60477

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

v.

GOVERNOR PHIL BRYANT, State of Mississippi; JOHN DAVIS, Executive 

Director of the Mississippi Department of Human Services, 

 Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

Before DENNIS, HAYNES, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

In 2016, the Mississippi Legislature passed the “Protecting Freedom of 

Conscience from Government Discrimination Act”, better known as House Bill 

1523 (“HB 1523”). HB 1523 declares that its aim is “to provide certain 

protections regarding a sincerely held religious belief or moral conviction for 

persons, religious organizations and private associations.” The Act enumerates 

the beliefs as follows: “(a) Marriage is or should be recognized as the union of 

one man and one woman; (b) Sexual relations are properly reserved to such a 

United States Court of Appeals

Fifth Circuit

FILED

August 12, 2016

Lyle W. Cayce

Clerk
No. 16-60477

2

marriage; and (c) Male (man) or female (woman) refer to an individual’s 

immutable biological sex as objectively determined by anatomy and genetics at 

time of birth.” Miss. Laws 2016, HB 1523 § 2 (eff. July 1, 2016).

Members of the clergy, organizations, and other citizens of the State of 

Mississippi are challenging HB 1523. They contend that it violates both the 

Establishment Clause of the First Amendment and the Equal Protection 

Clause of the Fourteenth Amendment to the United States Constitution. The 

district court determined that it should preliminarily enjoin the enactment and 

enforcement of HB 1523. The State has moved for a stay pending appeal. 

I. 

“A stay is an intrusion into the ordinary processes of administration and 

judicial review, and accordingly is not a matter of right, even if irreparable 

injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 

427 (2009) (quotation marks and citation omitted). In deciding whether to stay 

a preliminary injunction pending appeal, we consider four factors: 

(1) whether the stay applicant has made a strong showing that he 

is likely to succeed on the merits; (2) whether the applicant will be 

irreparably injured absent a stay; (3) whether issuance of the stay 

will substantially injure the other parties interested in the 

proceeding; and (4) where the public interest lies.

Id. at 426. “The first two factors of the traditional standard are the most 

critical.” Id. at 434. Also, “the maintenance of the status quo is an important 

consideration in granting a stay.” Dayton Board of Education v. Brinkman, 439 

U.S. 1358, 1359 (1978). See also Houchins v. KQED, Inc., 429 U.S. 1341, 1346 

(1977). And "we do not decide the merits of the State's appeal from the lower 

court's injunction; instead, we consider only whether the district court's 

injunction should be stayed pending complete review." Ruiz v. Estelle, 650 F.2d 

555, 565 (5th Cir. 1981). 
No. 16-60477

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II.

This court has considered the State’s motion on the basis of the briefs, 

the detailed opinion of the district court, and the applicable law. Mindful that 

we are considering only whether to grant a stay of a preliminary injunction 

pending appeal, and further considering that our decision maintains the status 

quo in Mississippi as it existed before the Legislature’s passage and attempted 

enactment of HB 1523, the State’s motion for stay pending appeal is DENIED, 

as is its motion to expedite this appeal. The State’s motion to consolidate this 

case with 16-60478, Campaign for Southern Equality, et al v. Phil Bryant, et al

(5th Cir. 2016) is GRANTED.