Federal Judge Quashes Mississippi Law Protecting Those That Discriminate Based on Sexual Orientation

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Have you heard of a little thing called separation of church and state? Not the first of its kind to pass, Mississippi recently passed HB1523, essentially allowing individuals to discriminate against the LGBT community based on personal religious beliefs.  HB1523 was set to take effect this week, but Federal District Judge Carlton W. Reeves ruled the law violates the First and Fourteenth Amendments.

The Establishment Clause provides us with religious freedom, as well as protections from governmental interference regulating such beliefs. It’s definitely a slippery slope between the two protections.  On the one hand, you want religious freedom and this law appeared to provide protections to Mississippians from being punished for acting on their religious beliefs.  On the other hand, it does seem discriminatory, favoring one religious belief aimed against the LGBT community.  Was it really just a catalyst for legalizing discrimination?  A way to get around the Supreme Court’s decision in Obergefell?

If you take a look at the language of the bill, as a whole it says an individual can exercise their religious beliefs without negative repercussions from the government. Doesn’t sound so bad, right?  But when you consider the ramifications of further text within the bill, it’s definitely controversial.

The law protected individuals and businesses alike from backlash for:

• refusing to perform gay marriages or issue marriage licenses,
• refusing to make a wedding cake or any other wedding planning services,
• private organizations could make employment decisions (hiring/firing) based on sexual orientation and gender identity (this one’s a doozy!),
• refusing to rent, sell, or make other terms and conditions about housing based on sexual orientation and gender identity,
• refusing (adoption agencies) to place a child based on sexual orientation or gender identity,
• refusing (medical professionals) services related to sex reassignment or gender identity transition,
• refusing (medical professionals) to participate in fertility services for gay couples,
• establishing sex-specific standards concerning employees/students in how they groom and dress themselves and can restrict access to bathrooms.

I take it back–they’re all doozies. If legislature is truly to abide by the plain language of the Establishment Clause, they shouldn’t be making laws “respecting an establishment of religion.”  Isn’t this law essentially respecting, or better yet favoring, Christian ideologies?

HB 1523 Singles Out Specific Religious Beliefs

“The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

1. Marriage is or should be recognized as the union of one man and one woman;
2. Sexual relations are properly reserved to such a marriage; and
3. Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

If this doesn’t scream recognition of a religious ideology, I don’t know what does. Even more so, the law essentially says the State favors protecting the religious beliefs of those opposed to the LGBT community over everyone else.

Case Law Backs Up Decision

Judge Reeves has plenty of case law to back up his decision.  The Supreme Court decided in the 90’s, followed by a whole slew of cases furthering sexual orientation rights, that discrimination based upon sexual orientation violates the Equal Protection Clause.  Judge Reeves argued HB1523 does not provide the same equal protections anti-discrimination laws protect, but rather draws a stark line between the LGBT community and everyone else broadly denying them their equal protection rights.

Not only is it an equal protection violation, Judge Reeves argues it violates the Establishment Clause.  HB1523 establishes a preferred religion. Not only does it establish a preference for Christianity, but, he argues, it treats Christians that have beliefs contrary to those specifically enumerated within the law (that marriage is between a man and woman) as second-class citizens–it gives special privileges to those that hold the enumerated beliefs over those that don’t.

According to Judge Reeves, why should Muslim or Jewish clerks, who do not believe in interfaith marriages, not be allowed to recuse themselves from issuing a marriage license? It wholly discriminates against, not just the LGBT community, but anyone who doesn’t hold the same enumerated beliefs spelled out in the law.

In all fairness, the concept of protecting individuals from governmental repercussions for acting on religious beliefs is a great idea. However, let them duke it out in court like everyone else instead. Private schools could already maintain their own admission standards and policies regarding its students.

Individuals and private businesses already had the right to refuse service.  Pastors already had the right to exercise discretion when deciding whether to perform marriage ceremonies.  Clerks already had the right to invoke constitutional and statutory defenses when objecting to same-sex marriages.  None of them needed a law that specifically calls out and separates members of the LGBT community in order to exercise their religious beliefs. Carol Burnett, a United Methodist minister and a plaintiff in the case, said it best,

“When there is no separation of church and state, there is no freedom of religion.”