Federal Judge: Mississippi’s Right-To-Discriminate Law Was Designed “To Put LGBT Citizens Back In Their Place”

Jim Burroway

July 1st, 2016

Mississippi’s so-called “religious freedom” law, HB 1523, was due to go into effect at midnight last night. It would have allowed individuals, religious organizations and businesses to deny services to LGBT people based on “sincerely held religious beliefs or moral convictions.” The law also would have allowed county clerks to selectively refuse to issue marriage licenses on those same grounds. Late Thursday night, just before the law was due to go into effect, Federal District judge Carlton Reeves found that because it violated the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause, the plaintiffs had a very high likelihood of prevailing in their lawsuit. He then issued an injunction preventing the law from going into effect.

It should be remembered that this isn’t a final ruling on the lawsuit itself, which is actually the combination of three separate lawsuits challenging HB 1523. That lawsuit is still going to go forward, and the state of Mississippi can still mount a defense of HB 1523 and, in theory at least, prevail. But Judge Reeves’s 60-page opinion certainly reads more like a final ruling than an injunction, and it demonstrates the deep hole the state’s lawyers are in. I think this paragraph sums it all up very nicely:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction. Politicians reacted to the Hawaiian proceedings with DOMA and mini-DOMAs. Lawrence and Goodridge birthed the state constitutional amendments. And now Obergefell has led to HB 1523.

As Judge Reeves put it, that overreaction in HB 1523 was twofold. First, section 2 singled out only three specific religious beliefs being eligible for special legal protections:

(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 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

And then it said that the state would not prosecute any “discrimination” cases is that discrimination was done on the basis of any of those three specific beliefs. Judge Reeves found that:

“Discrimination” is defined broadly. It covers consequences in the realm of taxation, employment, benefits, court proceedings, licenses, financial grants, and so on. In other words, the State of Mississippi will not tax you, penalize you, fire you, deny you a contract, withhold a diploma or license, modify a custody agreement, or retaliate against you, among many other enumerated things, for your § 2 beliefs.

After providing a detailed analysis of the plaintiff’s standing to sue and that state officials were appropriately named as defendants, and that it was proper to sue before the law went into effect, he then dismantled, one by one, each of the state’s arguments supporting HB 1523. Some of the language he uses is pretty strong. For example, the state actually claims that the law didn’t single out a group of people for special treatment because it didn’t actually mention LGBT people:

The State then claims that HB 1523 “is about the people of conscience who need the  protection of H.B. 1523, and does not ‘target’ Plaintiffs.” 31 Docket No. 30, at 3, in Barber. The argument is unsupported by the record. It is also inconceivable that a discriminatory law can stand merely because creative legislative drafting limited the number of times it mentioned the targeted group. The Court cannot imagine upholding a statute that favored men simply because the statute did not mention women.

…The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status. … As in RomerWindsor, and Obergefell, this “status-based enactment” deprived LGBT citizens of equal treatment and equal dignity under the law.

Before turning to the bill’s violation of the religious establishment clause in the First Amendment, Judge Reeves embarked on a rather lengthy dissertation on how the First Amendment came into being because, what with Mississippi being Mississippi, people there tend to think “that the Establishment Clause is a technicality that lets atheists and members of minority religions thwart their majority (Christian) rule. The public may be surprised to know the true origins of the Establishment Clause,” which was, originally, “to protect Christians from other Christians,” with other faiths included in subsequent court decisions. Because some religious denominations blessed same-sex marriages, HB 1523 favored some denominations over others. More than that, it favored some specific religious doctrines over others:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others. “[T]he goal of basic ‘fairness’ is hardly furthered  by the Act’s discriminatory preference” for one set of beliefs. Edwards, 482 U.S. at 588. It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”)

Reeves was sixty pages into his opinion and he was just getting warmed up. Unfortunately, he was running out of time — the law was due to go into effect in just a few hours. And since this isn’t a final opinion for the case, he just left the remainder of his arguments for another time:

F. Other Considerations

The plaintiffs have made other First Amendment arguments and noted a preemption theory concerning 42 U.S.C. § 1983. In light of the substantive claims addressed above, and appreciating “the haste that is often necessary” in preliminary injunction proceedings, the Court declines to take up those other theories of relief at this time. Monumental Task Comm., Inc v. Foxx, — F. Supp. 3d —, 2016 WL 311822, at *3 (E.D. La. Jan. 26, 2016)

Reeves’s injunction orders “that the defendants; their officers, agents, servants, employees, and attorneys; and any other persons who are in active concert or participation with the defendants or their officers, agents, servants, employees, or attorneys; are hereby preliminarily enjoined from enacting or enforcing HB 1523.”

Ben in Oakland

July 1st, 2016

Good for Judge Reeves. a black man and, if I recall, a Seventh Day Adventist. Perhaps he knows exactly the difference between church and state, and how the coercive power of the latter is employed by the former when the two fornicate.

So not being content with being slapped down repeatedly, they are going to appeal the ruling, wasting even more state money and assuring the Mississippi will continue to be the Nigeria of the south. With a little bit of luck, we will get a definitive supreme court ruling on the subject of when, if ever, discrimination on the basis of religious belief is going to be acceptable.

We have laws at EVERY level of government which forbid such discrimination. It is very telling that the only people right wing Christians will clearly state that they should be able to discriminate against are gay people. And of course, they would howl like tiny little babies if such discrimination were ever directed at them.

Why, you’d almost think, if you were cynical, that this much ballyhoo’ed religious freedom has nothing to do with sincere religious belief at all.

David in Palm Springs

July 1st, 2016

This part is perfect:
“It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person.”

Of course these anti-gay bigots aren’t interested in enforcing any biblical passages that would negatively impact straight people. The public would never approve of that. Which proves the utter hypocrisy of these hate mongers — hiding behind the bible to justify harming other people’s lives.

Priya Lynn

July 1st, 2016

Great commentary Ben and David.

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