ACLU suit equates “religious freedom” law to Jim Crow legislation

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The American Civil Liberties Union has filed the first lawsuit against the “religious freedom” law, alleging that it violates the rights of gay Mississippians.

In a complaint that harkens back to Civil Rights litigation, the ACLU makes the accusation that passing the law, in effect, segregates gays, lesbians and transgender Mississippians into a separate class of people. Although the law doesn’t take effect until July 1, the suit claims that the mere existence of such a law stigmatizes these groups.

“It’s like Jim Crow; every law that designates someone as ‘other’ hurts them,” said Todd Allen, advocacy coordinator for the ACLU. “You don’t have to prove that the water in the ‘black’s only’ fountain was dirty. The harm is the stigma you have because they’re separate fountains.”

The suit also asks for a preliminary injunction to prevent the law from taking effect in July. The district judge assigned to the case is Daniel Jordan, who lifted the state’s ban on same-sex adoptions last month.

Gov. Bryant signed the “Religious Freedom” law last month. In it, the state singles out three religious beliefs as worthy of protection: that marriage is between one man and one woman; that people should not have sex outside such marriages; and that a person’s gender is set at birth. The law protects from litigation anyone who refuses services to gays, lesbians and transgender individuals because of these beliefs.

In a statement, Gov. Phil Bryant expressed impatience with the increasing challenges to the “religious freedom” law.

“The ACLU continues its mission of trying to use the federal court system to push its liberal agenda. Instead of cherry-picking causes popular with the radical left, the ACLU should allocate its resources defending all civil liberties,” Gov. Bryant said in a statement.

The complaint names Judy Moulder, the state registrar of vital records, as defendant in the suit. Per House Bill 1523, the state registrar will keep a list of any county clerk who declines to grant a marriage license to a gay or lesbian couple. These people are then immune from prosecution.

“A ‘no same-sex couples allowed’ list inflicts constitutional injury on Plaintiffs, ACLU of Mississippi members, and other same-sex couples even if the recusals do not impede or delay their ability to obtain marriage licenses. Creating a separate and unequal set of laws applying only to same-sex couples imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples,” the lawsuit claims.

Nykolas Alford

Zachary Oren Smith, Mississippi Today

Nykolas Alford

The ACLU filed the lawsuit on behalf of Nykolas Alford and Stephen Thomas, an engaged gay couple from Meridian.

“This law makes us feel like second-class citizens,” Alford said. “We are a prime example of the discrimination and harm this law will cause LGBT people in the state of Mississippi. This is nothing more than a thinly veiled attempt to discriminate against already marginalized groups in our society, which as a whole is entirely un-American.”

Although this lawsuit marks the first legal challenge to Mississippi’s “religious freedom law,” it won’t be the last, according to Jennifer Riley-Collins, executive director of the ACLU of Mississippi. She said the ACLU and its partners planned to challenge this law “from every possible angle.”

At the heart of the ACLU’s challenge to the “religious freedom” law is last summer’s ruling in Obergefell v. Hodges, in which the Supreme Court legalized gay marriage nationwide using the due process and equal protection clauses of the Fourteenth Amendments.

“The Supreme Court was crystal clear in Obergefell that states must provide the same legal treatment to marry same sex-couples that they provide to marry different sex couples. HB 1523 on its face treats the marriages of same sex couples differently from the marriages of everyone else,” Riley-Collins said.

Although the complaint does not reference civil rights litigation explicitly, it consistently uses the language of that era, using the phrase “separate and unequal” to describe HB 1523 multiple times. Oliver Diaz, the Jackson attorney on the lawsuit, drew a direct correlation between the two.

“I was offended to sit and watch as the Mississippi legislature passed a bill, the governor in the state of Mississippi passed a bill, instituting state sponsored discrimination once again in Mississippi,” Diaz said. “We have a long history in Mississippi of bigotry and discrimination and House Bill 1523 brings that back to life.”

The office of the attorney general, which will defend Moulder in the lawsuit, declined to comment until it had been served with a copy of the lawsuit.