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Written by Don Byrd

On the eve of its July 1 effective date, a federal judge in Mississippi has issued an injunction halting the enforcement of Mississippi’s controversial HB 1523. The law would shield businesses, individuals, and religious organizations from government “discrimination” for actions taken in accordance with certain religious beliefs, including the belief that “[m]arriage is or should be recognized as the union of one man and one woman.” 

In his ruling, Judge Carlton Reeves framed the bill generally as an unlawful attempt to undo the impact of the Supreme Court’s Obergefell ruling, which struck down state laws barring same-sex marriage. HB 1523’s protection of the particular religious beliefs in question, in the manner in which they are protected, he found, violates the First Amendment’s prohibition on the establishment of religion as well as the Fourteenth Amendment’s guarantee of Equal Protection under the law.

Here is his summary:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons. That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.

The 60-page opinion contains some important points in explaining the decision. Below is my summary of a few, including highlights from the opinion that stand out to me:

  • In Obergefell, the judge writes, the Supreme Court made a concerted effort to “reaffirm religious freedom rights.” Countering the claim from many that the decision placed religious freedom in dire jeopardy, he pointed out that the First Amendment remains in place to protect religious freedom. (The BJC’s Holly Hollman made a similar important point in a column following the Obergefell ruling when she wrote, “the Court’s decision does not remove the separation of church and state.” Also, see the BJC’s helpful handout on the Supreme Court’s Obergefell ruling.)
  • In addition, Mississippi’s Constitution and state RFRA law, the judge noted, offer “substantial religious rights under existing state law.” None of these laws are changed, he emphasized, by HB 1523. In fact, Mississippi’s RFRA law provides broader religious freedom protection than HB 1523.

“Mississippi’s RFRA grants all people the right to seek relief from governmental interference in their religious exercise, not just those who hold certain beliefs. This critical distinction between RFRA and HB 1523 cannot be overlooked. Although states are permitted to have more than one law intended to further the same legitimate interest, HB 1523 does not advance the interest the State says it does.

Even if HB 1523 had encouraged the free exercise of all religions, it does not actually contribute anything toward that interest. Again, as discussed above, a clerk with a religious objection to same-sex marriage may invoke existing constitutional and statutory defenses without HB 1523. The State has not identified a purpose behind HB 1523 ‘that was not fully served by’ prior laws.”

This raises for him the question: what is the true purpose of the law? He concludes that HB 1523 improperly targets members of the LGBT community. 

  • “Several parts of HB 1523,” he writes, “are unclear.”  Conflicts created between state regulations and HB 1523’s guarantee that, for example, adoptive and foster parents can raise a child in accordance with certain religious beliefs, or that professionals can refuse to provide certain services if they violate those beliefs, are unresolved by the law.
  • Judge Reeves argues that by singling out three religious beliefs for protection, the law by definition improperly leaves unprotected opposing religious beliefs.

“HB 1523 violates the Establishment Clause because it chooses sides in this internal debate. In so doing it says persons like Gov. Bryant are favored and persons like [plaintiff] Rev. Burnett are disfavored. So the fact that some members of all religions oppose same-sex marriage does not mean the State is being neutral. It means the State is inserting itself into any number of intrafaith doctrinal disputes, tipping the scales toward some believers and away from others. That is something it cannot do.”

  • The State’s “compelling government interest” in “accommodating the free exercise of religion,” he argues, is too general.

“The underlying premise of this interest is that members of some religious sects believe that any act which brings them into contact with same-sex marriage or same-sex relationships makes the believer complicit in the same-sex couples’ sin, in violation of the believer’s own exercise of religion. The idea is that baking a cake for a same-sex wedding “makes a baker complicit in a same-sex relationship to which he objects.” The problem is that the State has not identified any actual, concrete problem of free exercise violations. Its defense speaks in generalities, but “Supreme Court case law instructs that overly general statements of abstract principles do not satisfy the government’s burden to articulate a compelling interest.”

  • Perhaps most importantly, the judge ruled that “HB 1523 also violates the First Amendment because its broad religious exemption comes at the expense of other citizens.” The judge pointed to the Supreme Court’s 1985 ruling in Caldor, invalidating a Connecticut law because the religious exemption it created “did not take into account ‘the imposition of significant burdens on [others]'”

HB 1523 fails this standard. The bill gives persons with § 2 beliefs an absolute right to refuse service to LGBT citizens without regard for the impact on their employer, coworkers, or those being denied service. The critical lesson is that religious accommodations must be considered in the context of their impact on others. . . . HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service. The bill cannot withstand the Caldor line of cases. As Judge Learned Hand once said, ‘[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.'” 

You can read the opinion here, via Religion Clause.