U.S. District Judge Carlton Reeves asked lawyers for the state in court Friday if its controversial “religious freedom law” would protect Mississippians with sincerely held religious beliefs against straight marriage, just as it protects those with sincerely held religious beliefs against gay marriage.
A beat of silence followed.
Paul Barnes, who is defending the attorney general and the registrar of vital records in a lawsuit challenging the constitutionality of House Bill 1523, cleared his throat. Judge Reeves looked at him.
“I’m trying to parse it out,” Barnes said.
Almost a minute of silence followed. The other attorneys for the defense, Douglas Miracle and Tommy Goodwin, checked their notes. Someone coughed. Finally, Barnes leaned into his microphone.
“No, your honor. Based on the text it does not,” he said. “But I have not fully analyzed that question.”
The admission came near the end of two days of testimony about the lawsuits, Campaign for Southern Equality v. Bryant, and Barber v Bryant, claiming that Mississippi’s House Bill 1523 violates the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
Both lawsuits are asking Reeves to grant preliminary injunction against the law to keep it from taking effect July 1.
The Establishment Clause prohibits government from favoring one religion over another while the Equal Protection Clause prohibits the government from favoring one group of citizens over another.
Gov. Phil Bryant signed HB 1523 into law in April. It 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. It does not protect anyone who refuses service to someone based on other “sincerely held” religious beliefs.
The discrepancy is the crux of the plaintiff’s argument that the state passed HB 1523 not to protect the free expression of religion but to erode the rights that gay, lesbian, bisexual and transgender Mississippians had recently won in Supreme Court decisions like Obergefell v. Hodges and United States v. Windsor.
On Thursday the plaintiffs brought forward testimony from a parade of witnesses who described in detail, and often deeply emotionally, how they felt the state had violated their rights by endorsing the beliefs listed in House Bill 1523 over their own.
“We send our kids to school, we mow our lawn, we pay our taxes,” said Rev. Susan Hrostwoski, an Episcopal priest, lesbian and co-plaintiff in the Campaign for Southern Equality’s lawsuit. “And yet we were singled out as less than.”
In his argument to the court on Friday, Barnes countered that the state shouldn’t be responsible for how its laws make people “feel.”
“We don’t dispute how 1523 made them feel,” Barnes said. “But the intent (to discriminate) is missing.”
The plaintiffs, however, argued that the intent to discriminate was on full display the night of March 30, when the bill was debated on the Senate floor.
Roberta Kaplan, the lead attorney on the Campaign for Southern Equality’s lawsuit, argued that Sen. Jenifer Branning and other proponents of the law urged passage on what they said was the link between gay marriage’s opponents and Christian beliefs.
And Hrostowski paraphrased the governor when she testified that the Christian views Sen. Branning espoused offend her own.
“And then when the governor says Christians will line up to be crucified for this (law) — that is blasphemy,” Hrostowski said. “Jesus was crucified to atone for human sin, not so we can oppress each other.”
She said that her fear of being singled out or discriminated against had begun to affect every area of her life.
“As a lesbian — it’s a very visceral feeling,” Hrostowski testified. “All that fear, all that insecurity comes back, when you don’t know what restaurant you can go into without being thrown out.”
Reeves did not indicate when he would issue a ruling.