Monday, February 27, 2017
JACKSON The lawsuit to change the Mississippi state flag because it is "racially discriminatory" is still alive. The 5th U.S. Circuit Court of Appeals will hear Grenada-based attorney Carlos Moore's appeal on March 7.
Moore, who is black, brought a lawsuit against Gov. Phil Bryant last year, alleging that the Mississippi state flag violates the 13th and 14th Amendments. Moore's main argument was that it violates his constitutional rights to equal protection because the flag contains a Confederate emblem "with a racial discriminatory purpose."
U.S. District Judge Carlton Reeves dismissed the federal lawsuit last fall because, the judge believed, Moore was not able to prove his standing in the case or that he had, in fact, suffered an injury due to the state flag.
Moore, whom Philadelphia, Pa.-based attorney Michael Scott with Reed Smith LLP now represents, appealed to the 5th Circuit, asking it to hear oral arguments about Moore's standing "to bring an Equal Protection challenge to racially discriminatory and disparaging government speech."
Scott said the only thing he and Moore are asking for is that the 5th Circuit reverse the lower court's ruling on standing in the case and send it back to the district court where they can begin discovery, enter historical and factual evidence, and go to trial.
"Our point is very limited: This is the government, and the state is bound by the equal-protection clause, and it says it must provide equal protection to all of its citizens," Scott told the Jackson Free Press.
Lawyers from Attorney General Jim Hood's office filed a reply brief for the governor back in December, asking the 5th Circuit to agree with the lower court and not hear oral arguments. The state's attorneys argue that Moore does not have standing to bring a lawsuit in the case.
"Regardless of a particular individual's belief as to the meaning of the Confederate battle emblem contained in the state flag, all Mississippi citizens are exposed to the state flag regardless of race," the State's December brief argues. "Moore has not alleged a single instance in which he claims he has received different treatment from similarly situated individuals and that the unequal treatment stemmed from discriminatory intent stemming from the display of the state flag on public property."
Scott says Moore does have standing in the case because previous court decisions have found religious preference to violate the Establishment Clause, therefore, racial discrimination should be a basis for standing as well.
"The governor's contention that an African American asserting an Equal Protection claim must surmount a higher standing barrier than an atheist making an Establishment Clause claim turns the history and purpose of the two clauses upside down," Moore's second brief, filed Dec. 19 says.
"It is doubtful that the founding fathers had any concern at all for the sensibilities of atheists in adopting the Establishment Clause."
Moore told the Jackson Free Press Friday that he is excited for the oral arguments and looking forward to them. The 5th Circuit will hear oral arguments in the Moore v. Bryant case on Tuesday, March 7.
For more history about Mississippi's state flag and the fight to change it, see jacksonfreepress.com/slavery.
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