Posts Tagged As: “Religious Freedom” Laws

Family “Research” Council Withdraws Support for Modified FADA

Jim Burroway

July 13th, 2016

Ahead of yesterday’s shameful hearing, where House Republicans commemorated the one-month anniversary* of the Pulse gay night club massacre in Orlando by exploring options for legalizing anti-gay discrimination with the so-called “First Amendment Defense Act (FADA), the bill’s sponsors apparently made a very odd addition to the bill’s language:


(A) IN GENERAL. — Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that —

(1) marriage is or should be recognized as the union of —

(A) two persons of the opposite sex; or
(B) two individuals of the same sex; or

(2) extramarital relations are improper.

You see the clever change, don’t you? If someone wants to discriminate because they don’t believe in opposite sex marriages, they’d also be free to discriminate without any fear of government “discrimination” against them. Because, you know, there are tons of people that strongly disagree with the Supreme Court ruling upholding marriage equality for opposite-sex couples, right?

Of course, this is a sham and a pretty bizarre one at that. But on the off chance that someone somewhere might actually decide that they don’t to bake a man-woman wedding cake, the Family “Research” Council has withdrawn its support for this legislative masterpiece:

Unfortunately, the proposed language of FADA was changed late last week by bill sponsors in response to criticism to make it protect the view that marriage is the union of “two individuals of the same sex” as well as the view that it is “two individuals of the opposite sex.” The hearing made clear that this “two views” approach has done nothing to mitigate opposition to or win support for FADA.

The Court’s ruling and the Obama administration is already promoting such views, but natural marriage supporters are not protected from government punishment at all. Rep. Bonnie Waston Coleman’s (D-N.J.) commented that this “two views” version of FADA, which was meant to appease the Left, is a “facade”. It is unfortunate that the bill sponsors decided to affirm the Court’s redefinition when it is clear the Left does not want a live and let live policy which the original version of FADA supported.

That policy and reference to FADA’s nondiscrimination protections for supporters of natural marriage was added in two places to the conservative GOP platform! Members of Congress should not be asked to implicitly affirm the Supreme Court’s illegitimate decision in Obergefell v. Hodges in order to protect religious liberty or conscience rights, a message that was clearly articulated in the GOP platform this week. Because of the weakened language of the bill FRC has reluctantly withdrawn its support for FADA.

They are right of course in one sense: this change makes the bill even worse than the original bill by allowing more people to discriminate. But that explains only part of their objection. The other part they couldn’t have made any clearer: to them, “live and let live” was never going to be a two way street. It’s right there in black and white.

*I’ve tried avoiding the contradictory phrase “one-month anniversary.” I really have. Believe me. It makes no logical sense. But everyone else is using it, so I’m throwing in the towel. File this under: choosing your battles.

Mississippi Governor Asks Judge To Allow State To Begin Enforcing Right-To-Discriminate Law

Jim Burroway

July 12th, 2016

Mississippi Gov. Phil Bryant (R)

Mississippi Gov. Phil Bryant (R)

Last night, Mississippi Gov. Phil Bryant filed a notice (PDF: 56KB/3 pages) saying that he will appeal a federal judge’s injunction preventing a state right-to-discriminate law from going into effect. He also filed a motion (PDF: 56KB/3 pages) with Federal District Judge Carlton Reeves asking the judge to stay his injunction so the law could be enforced.

Mississippi’s so-called “religious freedom” law, HB 1523, would allow individuals, religious organizations and businesses to deny services to LGBT people based on “sincerely held religious beliefs or moral convictions.” The law also would allow county clerks to selectively refuse to issue marriage licenses to same-sex couples on those same grounds. Judge Reeves issued a very lengthy injunction (which actually read more like a final court ruling) in which the court found that Mississippi’s law “was the State’s attempt to put LGBT citizens back in their place” after the U.S. Supreme Court overturned bans against same-sex marriage nationwide last year in Obergefell v. Hodges.

In the memorandum accompanying both filings (PDF: 109KB/9 pages), Gov. Bryant argues that “the state is likely to succeed on appeal” due to arguments that were already made in earlier filings with Judge Reeves’s court: that “none of the plaintiffs have standing” and that HB 1523 is constitutional. Judge Reeves had already dealt extensively with those arguments in his injunction.

Gov. Bryant’s memorandum also asserts, “The State will suffer irreparable injury absent a stay because the Court’s injunction,” although he does not explain what that injury entails. He also asserts that “a stay pending appeal is in the public interest because the statutory policy of the Legislature ‘is in itself a declaration of the public interest’… If the Court agrees with the State that it is likely to prevail in its appeal, then a stay pending appeal is by definition in the public interest.”

Bryant also asserts that HB 1523 isn’t harmful to the plaintiffs:

The plaintiffs have not even alleged, let alone produced evidence, that they will suffer discrimination at the hands of public or private actors if HB 1523 is allowed to take effect. And the “offense” that they have taken from Mississippi’s decision to protect the conscientious scruples of those who oppose same-sex marriage is not a legally cognizable harm.

Ordinarily, the Mississippi Attorney General’s office would be expected to appeal the injunction, but Attorney General Jim Hood (D) announced that his office hasn’t decided whether to do so. His  statement however strongly suggested that he would not be inclined to appeal, saying that “the churchgoing public was duped into believing that HB1523 protected religious freedoms.”

The GOP Will Mark The One-Month Anniversary of the Pulse Night Club Massacre with a Hearing to Legalize More Anti-LGBT Discrimination

Jim Burroway

July 12th, 2016

I kid you not:

Tuesday’s congressional hearing on a federal “religious freedom” bill that would enable anti-LGBT discrimination is “disturbing,” a White House spokesperson said Monday.

Jeff Tiller, a White House spokesperson, made the remarks in response to an email request from the Washington Blade to comment on the House Committee on Oversight & Government Reform’s controversial hearing on the First Amendment Defense Act.

“We strongly oppose attempts to roll back non-discrimination protections for LGBT Americans,” Tiller said. “It’s disturbing that congressional Republicans plan to hold a hearing tomorrow on discriminatory, anti-LGBT legislation. President Obama remains firmly committed to promoting and defending the equal rights of all Americans, including the rights of LGBT Americans.”

A coalition of 70 groups has called on Rep. Jason Chaffetz (R-Utah) to cancel the hearing, which is set to take place on the one-month anniversary of the mass shooting at a gay nightclub in Orlando, Fla., claiming the lives of 49 people and wounding 53 others.

The so-called “First Amendment Defense Act” will allow businesses and individuals to circumvent federal protections against anti-LGBT discrimination and allow businesses to withhold marriage benefits from same-sex couples for religious reasons. The bill was introduced by Rep. Raul Labrador (R-ID) House and Sen. Mike Lee (R-UT) in the Senate.

Witnesses set to testify for the bill include Kelvin Cochran, a former Atlanta fire chief who was fired for distributing a book he wrote, titled Who Told You That You Were Naked?,  to his subordinates (including, presumably, LGBT subordinates in the department) which purportedly presented “the Biblical view” of homosexuality, adultery and other sexual topics. Other witnesses include a representative from the anti-gay Alliance Defending Freedom and a political science professor from the Witherspoon Institute.

Those set to testify against the bill include former Rep. Barney Frank (D-MA); Jim Obergefell, the lead plaintiff in the lawsuit which overturned state bans on same-sex marriage nationwide, and a law professor from the Columbia University’s Center for Gender and Sexuality Law.

Mississippi AG: “The Churchgoing Public Was Duped” Into Supporting Anti-LGBT “Religious Freedom” Bill

Jim Burroway

July 2nd, 2016

Mississippi Attorney General Jim Hood

Mississippi Attorney General Jim Hood

Mississippi’s lawmakers got their collective heads handed to them on a plate late Thursday when Federal District judge Carlton Reeves issued his blistering injunction that prevented Mississippi’s so-called “Religious Freedom” right-to-discriminate law from taking effect. Injunctions are typically brief, and the three lawsuits that have been brought against the state of Mississippi are still due to have their day in court. But Reeves’s 60-page order read far more like a final ruling than an injunction, leaving little doubt about where these cases are headed.

Mississippi Attorney General Jim Hood, the state’s only Democrat to hold a state-wide elective office, now says he doesn’t know whether he will appeal the judge’s injunction. “I can’t pick my clients,” he wrote in a statement, “but I can speak for myself as a named defendant in this lawsuit. The fact is that the churchgoing public was duped into believing that HB1523 protected religious freedoms.”

While Hood said state attorneys will evaluate the judge’s decision to determine whether to appeal the case that “could cost the state hundreds of thousands of dollars.” But the rest of his statement made it pretty clear that he was not inclined to appeal:

I believe in the free exercise of religion and there will be a case in the future in which the U.S. Supreme Court will better define our religious rights.  This case, however, is not that vehicle.

You can read Hood’s full statement after the jump

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.”

How Will Today’s Republican Party Mark The One Month Anniversary of the Pulse Gay Night Club Massacre?

Jim Burroway

June 29th, 2016

By holding hearings on a bill allowing discrimination against LGBT people. That’s how:

The House Committee on Oversight & Government Reform is set to hold a hearing on the First Amendment Defense Act amid pressure from anti-LGBT advocates, including the anti-gay National Organization for Marriage, to move forward with the legislation.

…Introduced by Rep. Raul Labrador (R-Idaho) in the U.S. House and Sen. Mike Lee (R-Utah) in the U.S. Senate, the First Amendment Defense Act has the purported purpose of preventing federal government action against individuals and businesses that oppose same-sex marriage for religious reasons. Critics say it essentially carves out a legal exemption for anti-LGBT discrimination.

…A senior Hill staffer, speaking on condition of anonymity, said the committee sent out invitations to witnesses on the conservative side designating July 12 as the date of the hearing. The staffer declined to share a copy of the invite with the Washington Blade.

So, there you have it. On the one month anniversary of the massacre killing 49 people and wounding 53 more at a gay night club, the Republican-controlled House of Representatives will mark the solemn occasion by doing NOM’s bidding. Rep. Jason Chaffetz (R-UT) is the committee chair whose brilliant idea it was to schedule this fine piece of anti-gay animus on that date. Invited witnesses include the usual suspects from the Alliance Defending Freedom and the Witherspoon Institute. By the way, here’s NOM’s fundraising pitch sent out earlier today:

Friends — I just met with my team and learned we are seriously behind our fundraising goals for the first half of the year, which ends at midnight on Thursday.

In fact, unless we get contributions from 3,050 supporters in the next 48 hours I’m going to have to cut our budget right as we head into one of the most important periods ever for the fight for marriage and religious liberty.

You can make a difference! Donate Today!

I have to be honest, we’ve never been in a bigger hole and I am freaking out. In the past, we had reserves saved up to help cushion a shortfall, but our reserves are gone.

Not only are we looking at major fights in the next few months, including pushing for passage of the First Amendment Defense Act, but we’re headed into the slowest time of year for fundraising as families take time off for vacations and travel.

Don’t worry NOM. The Republican Party is coming to your rescue.

Federal Court Re-opens Marriage Equality Case Over Mississippi’s “Religious Freedom” Law

Jim Burroway

June 28th, 2016

In 2014, U.S. District Judge Carlton Reeves declared Mississippi’s state ban on marriage quality unconstitutional, and issued an injunction requiring the state’s county clerks to issue marriage licenses to same-sex couples. The U.S. Supreme Court’s 2015 Obergefell decision striking marriage bans nationwide effectively closed the case in Mississippi, although that injunction remains in place. Yesterday, Judge Reeves agreed to re-open the case in response to Mississippi’s passage of a “religious freedom” law which, among other things, allows local clerks to refuse to issue licenses to same-sex couples. In his order issued yesterday, Judge Reeves writes:

Obergefell “is the law of the land and, consequently, the law of this circuit.” Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit — by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

Judge Reeves’s order reopens the case “for the parties to confer about how to provide clerks with actual notice of the Permanent Injunction.”

Mississippi’s HB 1523 allows clarks to deny licenses to same-sex couples, and it allows businesses and individuals to refuse services to LGBT people. It also allows health care professionals to opt out of providing transition-related care to transgender individuals. The law is set to go into effect July 1. Two other lawsuits have  been filed to block the other portions of the law.


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