Issue:  Vol. 48 / No. 11 / 15 March 2018

Supreme Court will not review anti-gay MS law


Mississippi Governor Phil Bryant
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In an action that one legal activist said would put LGBT people "in the crosshairs of hate and humiliation," the U.S. Supreme Court on Monday announced it will not review a lower court decision that allowed a virulently anti-gay Mississippi law to stand.

The court's refusal to take the appeal means the law can remain in effect in Mississippi. But because the appeal was on a procedural matter only, the two lawsuits challenging the law's constitutionality can still proceed.

The Mississippi law, HB 1523, says the state cannot penalize any "religious organization" or "person" who declines to employ or provide services, accommodations, or facilities to a person if the organization or person can claim their discrimination against someone arises out of "a sincerely held religious belief or moral conviction" against same-sex marriage. The law, enacted in 2016, was seen as a political reaction to the U.S. Supreme Court decision in 2015 (Obergefell v. Hodges) that said states could not ban or refuse to recognize marriages between same-sex partners.

The Protecting Freedom of Conscience from Government Discrimination law, as it was titled, also prevents the state from penalizing a religious organization that refuses to allow a same-sex couple to adopt or foster a child. It prevents the state from punishing a person who refuses to provide treatment for gender identity transitioning or refuses psychological counseling or fertility services to someone because of a "sincerely held religious belief or moral conviction" that marriage is only for male-female couples.

The law has not enjoyed widespread favor, even in Mississippi.

According to the Sun-Herald newspaper of Biloxi, there are "more business owners decrying the law than supporting it." The state's attorney general has refused to defend the law (prompting Governor Phil Bryant to step in). An article in the Mississippi Business Journal warned employers that they should not depend on the law to shield themselves from discrimination. And some other states (including California and New York) have banned non-essential taxpayer-funded travel to Mississippi because of the law. (San Francisco has also banned non-essential travel to Mississippi and prevents businesses based there from contracting with the city.)

Roberta Kaplan, the New York attorney who successfully represented Edith Windsor's challenge of the federal Defense of Marriage Act, leads one lawsuit, Campaign for Equality v. Bryant. Former U.S. Solicitor General (under President Barack Obama) Donald Verrilli Jr. and Lambda Legal Defense and Education Fund lead the other, Barber v. Bryant. The American Civil Liberties Union of Mississippi is preparing a third lawsuit against the law.

"The Supreme Court's decision not to review this case is not an endorsement of HB 1523 or the wave of similar discriminatory laws across the country," said Lambda Legal attorney Beth Littrell, "and it does not change what the court clearly ruled in Obergefell v. Hodges, and more recently in Pavan v. Smith, that same-sex couples and their families should be treated like other families in this country and not to do so is harmful and unconstitutional."

In its 2015 Obergefell decision, the U.S. Supreme Court ruled that states could not refuse licenses for or recognition of marriages for same-sex couples. In its 2017 decision in Pavan v. Smith, the Supreme Court reversed an Arkansas Supreme Court decision that allowed the state to omit from a child's birth certificate the name of the biological mother's legal spouse if that spouse was not male.

Littrell said Lambda would "keep fighting in Mississippi until we overturn this harmful law, and in any state where anti-gay legislators pass laws to roll back LGBT civil rights."

"Unfortunately, the Supreme Court's decision today leaves LGBT people in Mississippi in the crosshairs of hate and humiliation, delaying justice and equality," said Littrell. 

When Lambda Legal and others brought the lawsuits in Mississippi, a federal district judge blocked the state from enacting the law, saying it violated the constitutional guarantee of equal protection and the constitutional directive that government not show favor toward a religion. But last June, a three-judge panel of the 5th U.S. Circuit Court of Appeals lifted that stay, saying the lawsuits had not adequately demonstrated that it would harm any LGBT people.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he is optimistic that, "if the law is applied to harm LGBT people, it will be struck down."

"I am also optimistic that, if the constitutionality of HB 1523 ever reaches the Supreme Court, the court will agree that it is invalid," said Minter.

Both Minter and Lambda Legal senior counsel Jennifer Pizer noted that the Supreme Court gets thousands of petitions of appeals every year. And the court tends to accept appeals dealing with constitutional, not procedural, issues.

But Pizer said she sees the denial of this appeal ss still "deeply disconcerting because the Constitution's establishment clause clearly prohibits government from favoring one set of beliefs over another."

"Whether it portends anything about the outcome in Masterpiece remains to be seen," added Pizer. The Supreme Court heard oral arguments in December in Masterpiece Cakeshop v. Colorado, a case that will decide whether any common business vendor – a restaurant, a hotel, a taxicab – selling products or services to the public – can refuse to sell or accommodate LGBT persons by simply claiming to have a religious belief hostile to such persons. Mississippi, unlike Colorado, has no state law prohibiting sexual orientation discrimination in public accommodations.

"But we certainly saw during the oral argument in that [Masterpiece] case that Justice [Anthony] Kennedy is deeply concerned about people of faith being respected," said Pizer, "and that his awareness of the widespread, harmful discrimination against LGBT people's lives [is] in tension with his sympathies for those holding very conservative religious views."


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