Why doesn’t anyone care about Mississippi?
This spring, the state’s legislature passed H.B. 1523, an extensive law written to protect people who believe any of the following: that marriage is between a man and a woman; that sex should only happen in the context of marriage; and that the words “male” and “female” refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” The law claim these protections are a form of religious freedom.
It provides that religious organizations can refuse to rent out their social halls for a same-sex wedding, for example, and that clergy can refuse to perform a same-sex marriage ceremony. These groups can also fire a single mother who gets pregnant, or, in the case of religious adoption agencies, decline to place a child with a same-sex couple. Doctors and psychologists can refuse to get involved with gender-reassignment procedures or take cases that would violate their religious beliefs. Schools and other public agencies can create “sex-specific standards” for dress code, bathrooms, and more. State employees can also refuse to sign same-sex-marriage licenses, and they can’t be fired for saying they believe homosexuality is wrong, for example.
It is, without a doubt, the most extensive legislation of its kind to be passed into law since the U.S. Supreme Court’s same-sex-marriage decision one year ago. And for the most part, the country has been silent.
Now, a federal judge has blocked the law from going into effect, which was set to happen on July 1. Carlton W. Reeves, a Texas native who grew up in Yazoo City, Mississippi, and was appointed to the federal bench by President Obama in 2010, had some choice words for his fellow Southerners. “In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction,” he wrote. The Supreme Court’s same-sex marriage decision, Obergefell v. Hodges, “has led to HB 1523. The next chapter of this back-and-forth has begun.”
Mississippi is not alone in passing protections for religious individuals, clergy, and state employees; during the past year, state legislatures around the country have considered and occasionally passed their own, less extensive versions of this kind of legislation. North Carolina is now fighting the federal government over H.B. 2, a law that prohibits special public accommodations from being made for transgender people, including in public bathrooms. This spring, Georgia Governor Nathan Deal vetoed a bill that would have potentially allowed religious organizations to refuse service to LGBT people. Kentucky recently revised the layout of its marriage license, following the controversy over Kim Davis, the Rowan County clerk who refused to sign her name or attach the seal of her office to same-sex-marriage licenses. These are just a few of the many states where putative religious-freedom legislation has been drafted in the wake of the legalization of same-sex marriage.
The difference, though is that those states have all gotten significant national attention, including widespread protests and boycotts, in the wake of their legislation. As The New York Times noted on Friday, “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,” for example.
The law is significant for the state and the country, though, not least because of its parallels to Mississippi’s history. Reeves, who is black, drew a direct line between Mississippi’s new putative religious-freedom law and the state’s racist past. He compared Mississippi Governor Phil Bryant’s statement in opposition to Obergefell to those of the 1950s-era Governor J.P. Colman, who wrote that Brown v. Board of Education “represents an unwarranted invasion of the rights and powers of the states.” That kind of rationale is a distraction; on its face, this new law is discriminatory, he wrote. “A layperson reading about the bill might conclude that it gives a green light to discrimination and prevents accountability for discriminatory acts.”
Reeves pointed out that the law privileges the particular teachings of a few specific religious groups, which violates the U.S. Constitution’s establishment clause. But the decision reads as though he almost couldn’t help himself from going one step further: He seems to relish the contradictions in a law that sets certain biblical precepts as a matter of law, while ignoring others. Footnote after footnote cites Bible verses—all from the King James Version, he specifically notes—with which this law seems to conflict. For example: “The government is not in a position to referee the validity of Leviticus 18:22 (‘Thou shalt not lie with mankind, as with womankind: it is abomination’) versus Leviticus 21:14 (‘A widow, or a divorced woman, or profane, or an harlot, these shall he not take’).” He points out that state legislators have failed to encode biblical principles into state law on other issues:
No state law explicitly allows persons to decline to serve a payday lender based on a religious belief that payday lending violates Deuteronomy 23:19. No state law explicitly allows recusals because of a belief that wearing “a garment mingled of linen and wool” is forbidden. Leviticus 19:19. If a marriage license was withheld for “foolish talking” or “jesting,” see Ephesians 5:4, we would undoubtedly have many fewer marriages.
Most importantly, he pushed back on the idea that this law represents or protects all Christians or all religious people. Several of the plaintiffs who are challenging H.B. 1523 are themselves pastors or other clergy who say the law does not represent, and even violates, their beliefs. As Reeves wrote, this has an interesting parallel to the history of the Establishment Clause.
Given the pervasiveness of Christianity here, some Mississippians might consider it fitting to have explicitly Christian laws and policies. They also might think that the Establishment Clause is a technicality that lets atheists and members of minority religions thwart their majority (Christian) rule. The public may be surprised to know the true origins of the Establishment Clause. As chronicled by the Supreme Court, history reveals that the Clause was not originally intended to protect atheists and members of minority faiths. It was written to protect Christians from other Christians.
Reeves’s injunction hinted at the way jurisprudence on this kind of law might develop in the coming months and years. Reeves justified blocking the enactment of H.B. 1523 for a number of reasons, but he specifically cited its alleged violation of the Equal Protection Clause of the Constitution. Citing Romer v. Evans and Lawrence v. Texas, two landmark cases from the late 1990s and early 2000s that helped establish precedent for protecting gay rights under the 14th Amendment, he said the new Mississippi law “must be treated as ‘suspect’ and subject to strict scrutiny.” He pointed out that CEOs, arts groups, and the state’s tourism agencies have expressed concerns about the law’s impact and even instituted boycott. “The public interest is served by bringing this boycott to an end,” he said.
Moreover, he noted, this law would trample on the ability of cities and localities to write their own public-accommodations protections—including Jackson, where the city council unanimously passed a comprehensive anti-discrimination ordinance that includes gender orientation and sexual identity in June, seemingly in defiance of the state legislature that’s housed in there.
Because it is so extensive, the Mississippi law asserts a number of rights for its religious citizens that other states have only tentatively considered. In particular, its protections for doctors and psychologists who don’t want to treat LGBT patients is complicated. As I wrote back in April,
Doctors and therapists interact with people at their most vulnerable, and their training and expertise gives them incredible power over patients. The advice they provide—or refuse to provide—to an LGBT patient could influence the treatment that person seeks. It could make that person less likely to seek primary care or identify themselves as LGBT to other doctors.
Many aspects of this law are redundant or unnecessary. Clergy, for example, could never be forced by the state to perform wedding ceremonies against their religious beliefs. This law matters not just for its potential negative effects on LGBT Americans, but also for its symbolism. As Reeves wrote, “the title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell.” The judge wrote not as an outsider, swooping in to condemn the bigotry of those in the South. He wrote as Mississippian addressing his fellow state citizens—a black man born in 1964, now a federal judge who can stand up for other Americans who, by state law, have been given “second-class status.”