Mississippi LGBT law faces more court scrutiny

Published 10:26 am Monday, June 26, 2017

By Emily Wagster Pettus

Associated Press

JACKSON — Mississippi is in for a long court fight over constitutional questions about its law dealing with religious objections to same-sex marriage.

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Legislators in 2016 passed House Bill 1523, called the “Protecting Freedom of Conscience from Government Discrimination Act.”

It aims to protect three beliefs: marriage is only between a man and a woman; sex should only take place in such a marriage; and a person’s gender is determined at birth and cannot be altered.

Legal experts say it is one of the broadest bills passed by any state in reaction to the 2015 U.S. Supreme Court ruling that legalized same-sex marriage nationwide.

It would allow clerks to cite religious objections to recuse themselves from issuing marriage licenses to same-sex couples, and would protect merchants who refuse services to LGBT people. It could affect adoptions and foster care, business practices and school bathroom policies.

Multiple lawsuits were filed by gay and straight Mississippi residents, and U.S. District Judge Carlton Reeves blocked the bill just before it could become law last July 1.

On Thursday, a panel of the 5th U.S. Circuit Court of Appeals said it would lift the injunction Reeves imposed.

The panel did not rule on whether the law violates the constitutional prohibition on government establishing favored religious views. The panel said plaintiffs failed to prove they would be harmed by the law, “but the federal courts must withhold judgment unless and until that plaintiff comes forward.”

Plaintiffs’ attorneys say they will ask the entire 5th Circuit to reverse the panel’s decision, and they could appeal to the U.S. Supreme Court.

Whether — or when — the law will take effect depends on the outcome of those appeals.

If the law takes effect, it’s highly likely that any person negatively affected by it will file a challenge in court. At some point, judges will have to rule on questions of constitutionality.

HB 1523 was crafted and promoted by Alliance Defending Freedom, a Christian legal organization based in Arizona. Emails unveiled in court records last summer show the alliance offered public relations advice to Mississippi Republican Gov. Phil Bryant and wrote his statement explaining why he signed the legislation.

Passage of the bill brought praise from religious conservatives, including leaders of the Tupelo-based American Family Association, and condemnation from religious liberals, gay rights supporters and corporations with a presence in Mississippi, including Nissan North America, Chevron, Huntington Ingalls Industries, MGM Resorts and Entergy.

In May 2016, the Washington-based Family Research Council, which opposes same-sex marriage, gave Bryant an award for signing the bill.

“Targeted by those who wish to advance a radical social agenda, Gov. Bryant has stood firm and unequivocal in defending religious liberty for the citizens of Mississippi,” said the council’s president, Tony Perkins.

Bryant said at the ceremony that the “secular, progressive world,” aided by the media, had vented anger and frustration at him.

In December, seven law professors — one each from the University of Miami, Washington University and Brooklyn Law School, and two each from the George Washington University and the University of Virginia  — wrote a brief supporting plaintiffs’ arguments that HB 1523 violates the principle that government should not favor some religious beliefs over others.

“HB 1523 does not attempt evenhandedly to protect holders of all views on marriage, sexuality and gender against burdensome regulation,” the professors wrote. “Instead, it singles out specific religious viewpoints on these subjects and treats them as superior to all contrary beliefs. The law thus creates insiders and outsiders, whose rights vary significantly depending on whether they agree with Mississippi’s controversial creedal statements.”

Emily Wagster Pettus has covered Mississippi government and politics since 1994. Follow her on Twitter: http://twitter.com/EWagsterPettus.