JACKSON, Miss. — Mississippi’s new religious-freedom law is back in effect, after a three-judge panel lifted an injunction in federal court last month.
Whether the Protecting Freedom of Conscience From Government Discrimination Act is heard by the entire U.S. 5th Circuit Court of Appeals or is taken up by the U.S. Supreme Court remains to be seen, but for now defenders of traditional marriage see the injunction’s removal as a positive step for the effort to protect conscience rights in the wake of the high court’s 2015 ruling in Obergefell v. Hodges that redefined marriage across the country to include same-sex relationships.
“The Mississippi law protects the consciences of people who hold to the historic definition of marriage in the aftermath of the Supreme Court redefining marriage, and it does so while avoiding the awful outcomes that critics fear,” said Ryan Anderson, a William E. Simon Senior Research Fellow at the Heritage Foundation.
The law has been decried by critics as an extreme measure that will permit statewide discrimination against homosexuals, but Anderson told the Register that the Mississippi law provides that the state government “cannot punish, fine or coerce specific people and organizations in specific contexts.”
Said Anderson, “It doesn’t harm anyone.”
Brian Brown, president of the National Organization for Marriage, added that every state in the nation should have similar laws to defend the First Amendment rights of citizens who believe that marriage is the union of one man and one woman.
“We’ve been seeing businesses, individuals and churches attacked for living out the truth that marriage is between one man and one woman. These laws offer commonsense protection so that the rights of individuals are not undermined by those who would use same-sex ‘marriage’ as a club or hammer to beat them with,” Brown told the Register.
On June 22, the 5th Circuit’s three-judge panel lifted the injunction that a federal judge had placed on the law a year earlier, by determining that the homosexual activists and their allies who filed the lawsuit lacked standing to bring forward the litigation.
“None of these plaintiffs has clearly shown an injury-of-fact, so none has standing,” the judges wrote.
The plaintiffs have some remaining legal options that include requesting the entire 5th Circuit to hear the case or even appealing directly to the U.S. Supreme Court, which has already agreed in its next term to hear a religious-liberty case involving a Colorado Christian baker who was sued for refusing to bake a wedding cake for a same-sex couple.
Anderson said it remains to be seen what the federal courts will do next — which could include reinstituting the injunction pending further court orders — but added that there are reasons to rule in favor of the constitutionality of laws like Mississippi’s on the merits.
“When the government takes Americans to war, exceptions cover pacifists,” Anderson said. “When the government guarantees abortion, exceptions cover pro-lifers. These exemptions don’t amount to establishments of any religion, and neither do laws protecting dissenters after Obergefell.”
According to published reports, Mississippi Gov. Phil Bryant said he was pleased with the panel’s ruling: “As I have said all along, the legislation is not meant to discriminate against anyone, but simply prevents government interference with the constitutional right to exercise sincerely held religious beliefs.”
In 2016, the Mississippi Legislature passed and Bryant signed the Protecting Freedom of Conscience From Government Discrimination Act, also known as H.B. 1523. The law prevents government intervention when churches, individuals or businesses act “based upon or in a manner consistent with a sincerely held religious belief or moral conviction.”
The law almost immediately drew protests and rallies at the Mississippi Capitol and generated criticism nationwide as supporting discrimination against homosexuals in the name of religion. A legal analysis released last year by Columbia University said the law would permit local government clerks to opt out of certifying same-sex “marriages” and allow businesses to deny wedding-related services to same-sex couples in the interest of “a sincerely held religious belief or moral conviction.”
Columbia’s analysis also said the law would enable religious organizations to deny employment and housing to homosexuals, but observers such as Brown said those claims are overwrought.
“Those criticisms are blatant lies,” Brown said. “Frankly, I don’t think the Mississippi law is strong enough.”
The Legal Context
Some may mistake the Mississippi law for a state-level version of the Religious Freedom Restoration Act, a federal law adopted by some states that demands the government show a compelling interest to infringe upon religious conscience rights, but only in the least intrusive way possible.
But legal analysts say a better comparison would be the First Amendment Defense Act, a bill proposed by Congress and in a few states to prohibit government officials from taking action against individuals and organizations that act in accord with sincerely held religious beliefs that marriage is the union of one man and one woman.
“This law is not universally applicable. It protects one narrow set of religious beliefs pertaining to traditional marriage,” said Douglas Laycock, a professor at the University of Virginia School of Law who studies religious-freedom issues.
“Claimants can invoke the law without showing a substantial burden on their religious exercise. There is no exception for compelling government interests, local monopolies, large companies or anything else. That is, it provides absolute protection, which is quite unlike a RFRA,” Laycock told the Register.
The Diocese of Jackson, Mississippi, supported the bill after lobbying legislators to include conscience-protection rights for religious employers and providers of adoption and foster-care services.
“We would like to continue to be an adoption agency, but we obviously would like our freedom of conscience to be respected in that arena,” said Maureen Smith, a spokeswoman for the Diocese of Jackson, who added that the diocese, its parishes and agencies want legal protection in their hiring policies.
“If someone is teaching Catholic theology, obviously we need to hire somebody who adheres to that teaching,” Smith said.
The Masterpiece Cakeshop Case
In late June, the U.S. Supreme Court announced it will take up the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case is an appeal filed by Colorado baker Jack Phillips against an order by the state’s civil-rights commission that he must provide cakes when requested for same-sex “marriage” ceremonies, despite his Christian convictions that such unions are not authentic marriages.
The court’s decision, which will probably be delivered next spring, is likely to provide clarity about where the line will be drawn in areas that involve religious-freedom issues in the context of legalized marriage between two persons of the same sex.
In a post-Obergefell United States, despite what more strident homosexual-rights activists may claim, observers say it should remain possible to carve out effective legal protections for conscience rights regarding the traditional definition of marriage. Anderson raised the example of the national pro-life movement, which has been successful in persuading federal lawmakers to protect the legal rights of physicians, nurses, medical students and health care institutions that refuse to participate in or offer abortion services.
Since the U.S. Supreme Court in 1973 made legalized abortion the law of the land in Roe v. Wade, U.S. policy has protected the legal right to choose an abortion alongside an individual and institutional right to choose against facilitating one.
“Our law should now do the same on marriage,” Anderson said. “It needn’t and shouldn’t penalize private associations for their beliefs on this issue.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.