JACKSON — Mississippi’s House Bill 1523 was written as the Christian right’s response to a series of recent legal victories made by the lesbian, gay, bisexual and transgender community, according to an expert witness. The UCLA professor testified in a hearing Thursday morning as part of two suits challenging the constitutionality of the new law.
Douglas NeJaime, a professor of law and director of the Williams Institute, a think tank dedicated to conducting research on sexual orientation and gender identity law and public policy, said that these laws were made to protect only a certain set of religious principals — those held by religious groups that oppose gay marriage.
“They’re arguing that those who seek exemption (from providing services to gay and lesbian couples wishing to marry) are being discriminated against based on their beliefs,” NeJaime testified.
House Bill 1523, which Gov. Phil Bryant signed in April, singles out three “sincerely held” 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.
The two lawsuits, Barber et al. vs Bryant et al. and Campaign for Southern Equality et al. vs Bryant et al. ask U.S. District Court Judge Carlton Reeves to grant a preliminary injunction against the law, which takes effect July 1. They argue that endorsing only some religious beliefs while ignoring others violates the Establishment Clause of the First Amendment of the Constitution, which prohibits government from favoring one religion over another.
Defense attorney Tommy Goodwin, arguing for the governor and John Davis, executive director of the state’s Department of Human Services, said that laws such as House Bill 1523 seek only to “level the playing field” by ensuring that the recently gained rights of LGBT individuals don’t violate the rights of religious Mississippians.
Citing debate from the Senate floor on the night House Bill 1523 passed, Goodwin said the bill’s sponsors made it clear that they did not want to deprive anyone of their rights, only protect the rights of religious Mississippians. Reading from a transcript of that night, he quoted Sen. Jenifer Branning, R-Philadelphia, one of the bill’s sponsors.
“Based on this testimony by co-sponsor Jenifer Branning, she’s stating here that the intent of this bill is not to discriminate but to level the playing field,” Goodwin said.
So far, attorneys have filed four lawsuits challenging House Bill 1523; all are assigned to Judge Reeves. The first, brought by the American Civil Liberties Union, sought a temporary injunction. Reeves denied this request earlier this week.
The second, also brought by the Campaign for Southern Equality, is asking Reeves to reopen the 2014 lawsuit that overturned the state’s gay marriage ban and use his ruling there to invalidate House Bill 1523. Reeves heard arguments Monday; he has not made a ruling.
But the plaintiffs in Thursday’s hearings argue that granting “special legal status” to only a handful of religious beliefs while ignoring others violates both the Mississippi Constitution and the Establishment Clause of the First Amendment.
According to NeJaine, “religious freedom” laws like House Bill 1523 were first drafted as a bipartisan response to a 1990 Supreme Court decision that many felt removed far too many religious protections for Americans.
In 1993, a near-unanimous Congress passed the Religious Freedom Restoration Act, which said that “Government shall not substantially burden a person’s exercise of religion.” This legislation was supported on the left by the American Civil Liberties Union and on the right by Christian and Catholic organizations.
When the Supreme Court ruled in 1997 that Congress had overstepped its bounds by passing this law, both sides worked to pass similar laws at the state level.
But, NeJaine said, as federal courts began to play more of a role in granting rights to lesbian, gay, bisexual and transgender citizens, Religious Freedom Restoration Acts were passed in response to these laws and groups such as the ACLU began to withdraw their support.
When the U.S. Supreme Court’s ruling in Windsor v. United States overturned the Defense of Marriage Act in 2013, more than 50 “religious freedom” bills popped up in state legislatures. After the Supreme Court guaranteed the marriage rights of same-sex couples last year in Obergefell v. Hodges, nearly 100 bills addressing religious rights were introduced in more than 20 states.
NeJaine said that, to his knowledge, all of these laws came from either religious groups or religious-affiliated groups that opposed gay marriage.
“I’m not aware of secular groups that are engaging in these efforts and none that have significance in terms of money and power,” NeJaine said.
The hearing continued in the afternoon with the plaintiffs presenting six more witnesses. Attorneys say they anticipate Reeves issuing his ruling on the preliminary injunction before July 1.
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