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Federal Judge Strikes Down Law Granting Special Protections To Same-Sex Marriage Opponents

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Shortly before the 4th of July holiday, a Federal District Court Judge issued an order blocking a law passed by the state legislature that purported to shield from any punishment under state or local law anyone who believed, based on their religious faith, that same-sex marriage was not acceptable and that gender was immutable based on biology:

A federal judge blocked — shortly before it was to take effect — a Mississippi law that would have given special protections to those who opposed same-sex marriage.

In a 60-page ruling, Judge Carlton W. Reeves of Federal District Court said the law created “a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.”

By setting aside particular beliefs for protection as opposed to religious convictions in general, the law unconstitutionally “put its thumb on the scale to favor some religious beliefs over others.” He concluded by issuing a preliminary injunction preventing the law from taking effect.

Rob McDuff, a lawyer who argued against the law along with the Mississippi Center for Justice, said in a statement that “the federal court’s decision recognizes that religious freedom can be preserved along with equal rights for all people regardless of race, religion, or sexual orientation.”

Some of Mississippi’s political leaders, who had staunchly defended the law, pledged to appeal.

“The law simply provides religious accommodations granted by many other states and federal law,” Gov. Phil Bryant, a Republican, said in a statement. “I am disappointed Judge Reeves did not recognize that reality. I look forward to an aggressive appeal.”

(…)

The measure, which would have taken effect at 12:01 a.m. on Friday, is not a version of a traditional religious freedom act, which gives legal backing to those who argue that a given law infringes on their beliefs. Mississippi already has such a law on the books. Instead, it would create an array of protections specifically for those who believe that marriage is only for opposite-sex couples, that sexual relations are reserved for marriage and that gender identity is determined immutably by anatomy at birth.

Under the law, those who act according to these beliefs in foster care, counseling, school administration, facility rentals and wedding services would have been fully shielded from a host of potential government actions involving such things as hiring or firing decisions, fees or the issuing of state contracts.

The law would have also allowed court clerks to refuse to grant wedding licenses to same-sex couples as long as accommodations were made for the applicants to receive their licenses anyway. Judge Reeves struck down that element in a separate ruling on Monday, saying that while state officials were free to disagree, the Supreme Court ruling on same-sex marriage is the law of the land.\

In a footnote in his ruling on Thursday night — Judge Reeves, who was appointed by President Obama and is the second African-American federal judge in Mississippi — compared Mr. Bryant’s remarks on a state’s “right to self-governance” when it comes to gay marriage to former Gov. Ross Barnett’s 1962 speech before the Legislature in which he invoked states’ rights to oppose the integration of the University of Mississippi.

Mississippi’s law was condemned by civil rights activists, business groups and a number of the state’s mayors, particularly along the tourism-dependent Gulf Coast. But given its lack of Fortune 500 headquarters and its uncontested conservative political landscape, Mississippi did not face the same broad backlash as North Carolina did after passing a law restricting bathroom access for transgender people.

There have been multiple legal challenges with a wide array of plaintiffs: gay and straight, transgender and not. Lawyers in the case, which arose from suits filed by the Mississippi Center for Justice and the Campaign for Southern Equality, argued that the law was motivated by animus toward gay and transgender people and that it unconstitutionally endorsed and provided exclusive protection for “certain narrow religious beliefs.”

Lawyers for the state responded that the law did not affect the rights of gay or transgender people and that it would not favor a particular religious doctrine any more than conscientious objector laws do.

“Protection of free conscience and the free exercise of religion are legitimate and compelling governmental interests,” lawyers for the state said in a motion. It is reasonable to protect the convictions outlined in the law, they continued, “even though plaintiffs disagree with those beliefs and find them ‘offensive.’ ”

But Judge Reeves countered that there were already laws in Mississippi that protect religious beliefs from government interference. The difference, he said, is that those laws protect all beliefs and not specific ones, which the judge ruled would violate the First Amendment’s establishment clause.

“If three specific beliefs are ‘protected by this act,’ it follows that every other religious belief a citizen holds is not protected by the act,” he wrote, saying that Christians who hold different views would “become second-class Christians” in Mississippi.

More from The Washington Post:

JACKSON, Miss. — U.S. District Judge Carlton W. Reeves late Thursday night issued an injunction blocking a bill by the Mississippi legislature that would have allowed private citizens and some public officials professing a “sincere religious belief” to deny services to gays and lesbians.

Just minutes before House Bill 1523 was to take effect at midnight, Reeves eviscerated the bill — the most sweeping attempt by a state to undermine the Supreme Court’s 2015 decision to legalize same-sex marriage — as being in violation of the First and 14th amendments.

“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,’ ” Reeves wrote, citing precedent. “And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

“The plaintiffs’ motions are granted and HB 1523 is preliminarily enjoined.”

(…)

Republican Lt. Gov. Tate Reeves (no relation to the judge) had said earlier in the week that he hoped the state would appeal the judge’s initial injunction.

“If this opinion by the federal court denies even one Mississippian of their fundamental right to practice their religion, then all Mississippians are denied their 1st Amendment rights,” he said in a statement. “I hope the state’s attorneys will quickly appeal this decision to the 5th Circuit to protect the deeply held religious beliefs of all Mississippians.”

Reeves, the judge, ripped into that logic in the conclusion of his 60-page opinion.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together,” he wrote. “But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”

In his 60-page ruling, Reeves wrote that the title, history and text of the law showed it to be “the State’s attempt to put LGBT citizens back in their place.” Officially titled the Protecting Freedom of Conscience from Government Discrimination Act, the law was authored by state House Speaker Philip Gunn (R). After the U.S. Supreme Court’s Obergefell v. Hodges decision last year legalizing same-sex marriage, Gunn said the ruling was “in direct conflict with God’s design for marriage as set forth in the Bible. The threat of this decision to religious liberty is very clear.”

As noted above, it’s important to point out that this decision does not really involve Mississippi’s version of a Religious Freedom Restoration Act type law such as the one that was as at issue in the Hobby Lobby case. Instead, in this case the law singles out a series of beliefs about marriage and gender and provides government employees, private individuals, and private businesses with near complete immunity from prosecution under anti-discrimination or any other types of laws for their refusal to provide services to certain individuals or pretty much any other action they may take based on those beliefs. The law, of course, was passed in specific response to the Supreme Court’s ruling in Obergefell v. Hodges legalizing same-sex marriage nationwide. In application, as The Los Angeles Times put it, the law “would have allowed government employees to refuse to issue marriage licenses or perform marriage ceremonies. It also permitted businesses and faith-based groups to deny housing, jobs and adoption and foster-care services to people based on their sexual orientation.” The law also provides broad protections to government agencies and subdivisions and private persons or businesses who decline to provide accommodations to persons who identify as transgender and allows them to refuse to provide access to bathroom or other facilities that correspond to the gender that such persons identify with.

It is based on that special protection for only a specific set of religious beliefs that Judge Reeves rules that the law violates the Establishment Clause of the First Amendment because it provides special protection to a specific set of religious beliefs rather than purporting to broadly protection religious liberty the way that RFRA laws are intended to. While there remains a good argument that RFRA laws themselves also violate the Establishment Clause due to the fact that such laws provide special protected status to persons who object to generally applicable laws based on religion versus those who object to them for other reasons, it seems clear that Judge Reeves is correct here in his ruling that this law violates the clause because it gives special protection to a specific set of religiously-based beliefs. In essence, what this law purports to do with respect to marriage and gender is no different than if the state had provided special protection to people who refuse to do business or treat equally anyone who denies the divinity of Jesus Christ, or any other specifically religious belief. In both cases, by providing such protection to a specific set of beliefs over any others the state is in fact establishing something that resembles an official, protected, religion, and it’s obvious that this is unconstitutional.

Some Mississippi state officials have stated that they intend to appeal this matter, although it’s unclear how that will proceed since the state’s Democratic Attorney General has said that it’s unclear to him that there are any appeal-able issues in this case. Assuming an appeal goes forward, though, it will go to the Fifth Circuit Court of Appeals which, because it is still largely dominated by appointees of President George W. Bush, is among the more conservative Courts of Appeal in the country. Whether that means they would uphold a law like this one and reverse the District Court is unclear, but in no matter what it does it’s likely that this matter will end up before the Supreme Court at some point in the next year. The only question is whether the Justices will be inclined to take up another case like this so soon after Obergefell. Assuming they do, though, one suspects that the makeup of the Obergefell majority, with Justice Kennedy siding with the liberal wing of the Court, will take the opportunity to slap Mississippi into the 21st Century.

Here’s the opinion:

Barber Et Al v. Bryant Et Al by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. SKI says:

    It is a really good, very thorough opinion. Expect to see it cited/mirrored quite a bit.

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  2. grumpy realist says:

    Cue the regular whining from the usual suspects over at TAC,,,,

    (For heaven’s sakes–if you don’t want to live in a country under the Constitution and its Amendments, interpreted as they presently are by SCOTUS, then please MOVE….)

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  3. Pch101 says:

    Right-wingers need to figure out that homophobes and bigots are not protected classes.

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  4. Pete S says:

    Once again the party of small government takes a pile of taxpayer money and lights it on fire, this time passing a law they know full well is unconstitutional and then defending it in court. They appear dedicated to throwing more money on the fire by appealing this obvious decision. All for the important small government principle of allowing some people to tell others how to live their lives. Fortunately Mississippi is a really wealthy state so nothing better could have been done with this cash, it was probably sitting in the basement of the statehouse getting moldy.

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  5. James Pearce says:

    the federal court’s decision recognizes that religious freedom can be preserved along with equal rights for all people regardless of race, religion, or sexual orientation

    Pretty good summary of the liberal view right there. Religious freedom and equal rights.

    It’s not that hard.

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  6. DrDaveT says:

    @Pch101:

    Right-wingers need to figure out that homophobes and bigots are not protected classes.

    You missed the transformation. Postmodernist right-wingers now argue that objecting to homophobia and bigotry are, themselves, forms of bigotry, and therefore no better than that which they oppose. Laws that forbid racism are racist; laws that forbid sexism are sexist; calling a bigot a bigot is hate speech.

    Just ask Jenos.

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