IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-60477 September 29, 2017 Lyle W. Cayce Clerk 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, versus GOVERNOR PHIL BRYANT, State of Mississippi; JOHN DAVIS, Executive Director of the Mississippi Department of Human Services, Defendants–Appellants. * * * * * * * * * No. 16-60478 CAMPAIGN FOR SOUTHERN EQUALITY; THE REVEREND DOCTOR SUSAN HROSTOWSKI, Plaintiffs–Appellees, versus 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. Appeals from the United States District Court for the Southern District of Mississippi No. 16-60477 cons. w/ 16-60478 ON PETITION FOR REHEARING EN BANC (Opinion 860 F.3d 345, Jun. 22, 2017) Before SMITH, ELROD, and HAYNES, Circuit Judges. PER CURIAM: Treating the petitions for rehearing en banc as petitions for panel rehearing, the petitions for panel rehearing are DENIED. The court having been polled at the request of a member of the court, and a majority of the judges who are in regular active service not having voted in favor (FED. R. APP. P. 35 and 5TH CIR. R. 35), the petitions for rehearing en banc are DENIED. In the poll, 2 judges vote in favor of rehearing en banc, and 12 vote against. Voting in favor are Judges Dennis and Graves. Voting against are Chief Judge Stewart and Judges Jolly, Jones, Smith, Clement, Prado, Owen, Elrod, Southwick, Haynes, Higginson, and Costa. ENTERED FOR THE COURT: /s/ Jerry E. Smith United States Circuit Judge 2 No. 16-60477 cons. w/ 16-60478 JAMES L. DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting from the denial of rehearing en banc: I respectfully dissent from the court’s refusal to consider en banc the important standing issue in this case. In my view, the panel opinion committed serious error in concluding that the plaintiffs lack standing to bring suit under the Establishment Clause. The plaintiffs argue that HB 1523, a Mississippi statute, violates the Establishment Clause—they allege that it endorses and favors certain religious beliefs because it grants special privileges and immunities to persons who sincerely hold at least one of the following “religious beliefs or moral convictions”: (a) [m]arriage 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 of birth. MISS. LAWS 2016, HB 1523 § 2. 1 The plaintiffs are Mississippi residents and organizations who do not hold these beliefs or who hold religious beliefs contrary to these beliefs. 2 The plaintiffs allege that HB 1523 is an unconstitutional state endorsement of ...
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