        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                               August 12, 2016
                                 No. 16-60477
                                                                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

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
                                 No. 16-60477
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).


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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.




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