BY CHRIS JOHNSON, WASHINGTON BLADE
A Mississippi law enabling sweeping anti-LGBT discrimination in the name of “religious freedom” took effect Tuesday as a result of a federal appeals court decision throwing out a legal challenge to the statute.
The law, House Bill 1523, was signed by Gov. Phil Bryant last year in the aftermath of the U.S. Supreme Court ruling in favor of same-sex marriage nationwide. The purported intent of the law is to protect individuals who have religious beliefs contrary to the ruling, but the measure approaches that in a way that would allow anti-LGBT discrimination.
The law prohibits the state from taking action against religious organizations that decline employment, housing or services to same-sex couples; families who’ve adopted a foster child and wish to act in opposition to same-sex marriage and individuals who offer wedding services and decline to facilitate a same-sex wedding.
Additionally, the bill allows individuals working in medical services to decline a transgender person’s request for gender reassignment surgery. The bill also allows state government employees who facilitate marriages the option to opt out of issuing licenses to same-sex couples, but the person must issue prior written notice to the state government and a clerk’s office must not delay the issuance of licenses.
Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, spelled out the potential consequences of the law in a statement on the day it went into effect.
“The insidious power of a law like this is that it casts a long shadow over public life, forcing someone to assess whether they will be treated fairly and respectfully in situations from the crisis of an emergency room to an anniversary dinner at a restaurant to a child’s classroom,” Beach-Ferrara said. “Now we face the cruel reality of the law going into effect and the imminent threat it poses to the dignity, health and well-being of LGBT Mississippians.”
Last month, the U.S. Fifth Circuit Court of Appeals refused to reconsider “en banc” before the full court an earlier decision by a three-judge panel to throw out legal challenges to the law — one filed by the Campaign for Southern Equality, the other by the Joshua Generation Metropolitan Community Church and 13 Mississippi ministers,
The three-judge panel determined plaintiffs in the lawsuit lacked standing to challenge the law, reversing the trial court ruling that found HB 1523 violated the Establishment Clause by allowing state-sanctioned discrimination under one particular religious view.
GLAAD CEO Sarah Kate Ellis said in a statement the fight against the law continues despite its harmful effects on LGBT people.
America was founded on the freedom of religion and this shared value continues to be critical to our nation’s success, but it does not give people the right to impose their beliefs on others, to harm others, or to discriminate,” Ellis said. “This law allows hotels, ER doctors, business owners and even pediatricians to legally deny services to hardworking LGBTQ families in Mississippi, despite the fact that such blatant discrimination flies in the face of Mississippi and American values. The fight is far from over and we stand with advocates in Mississippi who simply want to be treated equal to their coworkers, friends, and neighbors.”
There were no statewide protections in Mississippi against anti-LGBT discrimination before HB 1523 went into effect. However, the cities of Jackson and Bay St. Louis have enacted LGBT non-discrimination ordinances, and HB 1523 could block the cities from enforcing those measures. Federal law against sex discrimination, which is increasingly applied anti-LGBT discrimination cases, also remains in effect in Mississippi.
Before HB 1523 went into effect, Mississippi already had a broad “religious freedom” law signed by Bryant in 2014 that critics say was also an attempt to enable anti-LGBT discrimination. However, unlike the new law, the earlier version didn’t explicitly spell out that individuals could refuse services to same-sex couples and transgender people.
Jody Owens, managing attorney for the Southern Poverty Law Center’s Jackson office, compared HB 1523 to the sweeping “religious freedom” guidance issued U.S. Attorney General Jeff Sessions issued last week.
“Despite the U.S. Attorney General’s memo last week inviting government agencies across the country to discriminate against LGBT people based on religion, religious freedom does not give us the right to treat others unfairly or impose our beliefs on them,” Owens said. “However, this law does just that — it purposely targets LGBT Mississippians and puts them at risk of unequal treatment.”
Although the Justice Department guidance doesn’t explicitly spell out permission to discriminate against LGBT people like the Mississippi law, the intent of both the guidance and the law are widely seen as the same.
It remains to be seen if any individuals or businesses in Mississippi will take advantage of the new law now that it has gone into effect. According to the Jackson-based Daily Journal, all 16 clerks in Northeast Mississippi said they’ll continue to issue marriage licenses to same-sex couples even with the new law in place.
The Commerce Dispatch, a daily newspaper based in Columbus, Miss., found no business willing go on the record to say they’d turn away LGBT people with HB 1523 in effect.
“It’s not Christian to judge people,” Nicole Huff, owner of Southern Flour Bakery on Highway 45, is quoted as saying.
Last week, the legal team behind the lawsuit sought a delay in the issuing of a mandate in the aftermath of the Fifth Circuit decision. But the appeals court denied that request and issued the mandate, enabling the anti-LGBT law to take effect.
Roberta Kaplan, a New York lesbian who’s lead counsel in the Campaign for Southern Equality lawsuit, said in a statement plans are underway to continue the challenge to the law.
“I am so terribly sorry that this unconstitutional and hateful law has to go into effect, even for one day or hour,” Kaplan said. “Nevertheless, we remain determined to make sure that HB 1523 remains in effect for as short a time period as possible and is soon relegated to where it belongs – the dustbin of history.”
There’s one avenue left for the litigation to continue: Plaintiffs can seek review before the U.S. Supreme Court by filing a petition for certiorari. The legal team behind the litigation has already pledged to seek to recourse before the Supreme Court.