BY JAY KAPLAN
In the midst of LGBT Pride month celebrations, on June 22 a three-judge panel for the 5th Circuit Court of Appeals lifted the injunction (stay) on Mississippi’s law that permits both individuals and government workers to discriminate against LGBT people on religious grounds.
Mississippi’s law, the very mistitled “Protecting Freedom of Conscience from Government Discrimination Act,” is considered one of the most aggressive state responses in opposition to the U.S. Supreme Court’s 2015 marriage equality decision.
Mississippi’s law would permit government clerks to opt out of certifying same-sex marriages and permit businesses to deny wedding-related services to same-sex couples if their marriage contravenes “a sincerely held religious belief or moral conviction.” It would permit religious organizations (including those that receive government funding) to discriminate against LGBT people in employment and housing. It would allow public school counselors to refuse to work with LGBT students, and potentially result in child-welfare agencies placing LGBT kids with anti-LGBT foster or adoptive parents.
The law could also permit religiously affiliated schools to fire a single mother working in its cafeteria, supporting children on her own, because that university has a religious opposition to sex outside of marriage.
Sounds pretty bad, huh? But Mississippi is not an anamoly. It represents an attempt by opponents of LGBT rights to secure the right to discriminate in non-religious settings, often under the auspices of the government and government funding, in the name of religion. And these legislative attempts have been introduced throughout the country. How many recall Indiana’s so called “Religious Freedom Restoration Act”? How many are aware of the First Amendment Defense Act, federal legislation that has been introduced (and President Trump during the 2016 campaign promised to sign) that would permit discrimination based on the religiously held beliefs that marriage is between one man and one woman, that sex outside of marriage is wrong, and that to be transgender is against God’s teachings? How many of us know that Michigan has a law that permits state tax payer subsidized faith based adoption and foster care agencies to refuse to work with LGBT families based on those agencies’ religious beliefs?
Texas must know about it because they just passed a similar law last week. The biggest threats to achieving LGBT equality in our country today are these attempts to use religion as a basis to deny LGBT equal opportunity in all facets of life. This is the reality that we are dealing with.
All of this legislation is packaged to make it appear that somehow those who wish to discriminate against LGBT people are victims of government retribution for religious beliefs that they hold. This is simply untrue and proponents of LGBT rights are going to have to be both savvy and informed advocates to oppose these attempts to violate our constitution (which provides for separation of church and state), and to gut civil rights laws and protections.
Make no mistake about it. Our constitution strongly protects the right of individuals to hold their religious beliefs and the government cannot take away that religious belief. However, once an individual or organization voluntarily decides to enter into non-religious activity – like baking cakes, hosting wedding receptions, working for the local government clerk’s office, contracting with the government to facilitate adoptions and foster care placements, operating funeral parlors, etc those individuals and those organizations are subject to a myriad of laws, regulations and policies that govern those activities.
You don’t get a special carve out or exemption for zoning ordinances, health codes, payroll taxes, or civil rights laws. Our federal courts while strongly protecting the rights of individuals’ religious beliefs, have never permitted those beliefs to be used as a mechanism to harm other people – to be a sword, instead of a shield. Our country was founded on the principle that our government does not promote a particular religious belief to the detriment of others.
When we allow for laws like Mississippi’s, the government is promoting the religious belief that to be LGBT is to be both wrong and inferior. Those plaintiffs in Barber v. Bryant (the Mississippi legal challenge) will now ask for this decision to be reconsidered by an en-banc (full) panel of the 5th Circuit Court of Appeals. Should that be unsuccessful they could petition to the U.S. Supreme Court. However, no matter the outcome, this issue is not going away anytime soon and while we celebrate all that there is to celebrate about being LGBT and the civil rights gains that have been made, we must be cognizant that attempts to roll back any and all progress are in play at home in Michigan and throughout the U.S. We need to be vigilant, we need to be informed, and we need to continuously speak out.