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Orlando attack puts bill into forefront

By Sid Salter

The shocking terrorist attack by an American-born Muslim fanatic with what investigators believe was a deadly embrace of the world view of the Islamic State (ISIS) and concomitant objections to LGBTQ lifestyles in Orlando early Sunday left 50 dead, 53 wounded, and the national debate over so-called “religious freedom” legislation in states like North Carolina and Mississippi at a new and uncharted crossroads.

The violence visited on the gay nightclub in Orlando has had the inescapable impact of reframing the national debate on both existing gay rights and the national tolerance for “religious freedom” legislation like Mississippi’s House Bill 1523.

Social media saw heated exchanges between supporters and opponents of the controversial legislation erupt as the full picture of what happened in Orlando became clear. Even a Twitter post by Gov. Phil Bryant simply seeking prayers for the Orlando victims and their families drew criticism from HB1523 opponents.

HB1523 is formally the “Protecting Freedom of Conscience from Government Discrimination Act,” and supporters like Bryant claim it was written and adopted in great measure to protect the rights of people with a “sincerely held religious belief” or a “moral conviction” against same-sex marriage — including circuit clerks tasked with issuing marriage licenses — from punishment for denying services to same-sex couples.

Opponents say HB1523 codifies a path to abject discrimination against people engaging in what is clearly constitutionally protected activities under the cloak of religion — and that adoption of such laws at the state level have no impact whatsoever on the federal laws that are in conflict with them.

Before the Orlando atrocities, there was no question that judicial review would put the Mississippi legislation in serious constitutional jeopardy.

For the federal appellate courts, there is the legal question of how the state defines “sincerely held religious belief” and “moral conviction” in this context. Does the new law contemplate the rights of people outside the Judeo-Christian faith to their “sincerely held religious belief” or “moral conviction” that may well clash with those of the vast majority of Mississippians?

From a purely legal standpoint, it’s no longer a question of whether Mississippians approve or disapprove of same-sex marriages or whether those choices in any way offend one’s religious beliefs (or the lack of them) or whether they match one’s political/philosophical beliefs on the same topics.

On the subject of same-sex marriage, the Supreme Court in a 5-4 decision in the 2015 landmark Obergefell v. Hodges case declared that same-sex couples have a constitutional right to marry that is guaranteed by both the Due Process Clause and Equal Protection Clause of the 14th Amendment.

That decision made same-sex marriage legal in Mississippi — or at least impeded Mississippi from violating the federal constitutional right to same-sex marriage.

U.S. District Judge Carlton Reeves then ordered an end to enforcement of the state’s same-sex marriage ban. In that sequence of events, HB1523 was born as an effort to sidestep the federal Obergefell decision at the state level or at least shield those who refuse to comply.

Federal judicial review looms large for Mississippi’s HB1523. Ultimately, federal appellate judges will be tasked with weighing the Obergefell decision and the Constitution against the new law.

Are we then to believe that those appellate judges are going to rule that the choice of a public official over whether to obey federal law rests pretty much solely with whether that official agrees with the law? Not likely.

Now, that federal judicial review will be made against the backdrop of the worst act of terrorism in the nation’s history, an act of terrorism conducted in part because of an individual’s religious objections to LGBTQ lifestyles.

Clearly, the targeting of the gay nightclub by the shooter for religious reasons creates optics that are virtually impossible for appellate judges to ignore while considering Mississippi’s new law.

The national backlash against HB1523, as Bryant has acknowledged in public appearances of late, has been withering despite drawing praise from voices like Rev. Franklin Graham.

The Orlando shootings will likely intensify and focus that national backlash.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.