“Excruciatingly Different” Mississippi Religious Lib Law Specifies Beliefs

The Mississippi “religious liberty” law that will soon allow public officials to refuse service to same-sex couples and transgender individuals was hit with two legal challenges last week, one by the ACLU and the other by the Campaign for Southern Equality. Both suits argue the law, HB 1523, violates the constitutional protections laid down by the Supreme Court in last year’s Obergefell v. Hodges decision, which it clearly does. But it also brazenly violates the Establishment Clause of the First Amendment, which prohibits the government from unduly favoring one religion over another.

Mississippi’s law, which protects only three specific religiously-based beliefs (that marriage should be between men and women only, that sex outside of marriage is immoral, and that gender and sex are only determined by anatomy at birth), is “excruciatingly different” from most generic state religious freedom laws, according to Andrew Seidel, constitutional attorney at the Freedom From Religion Foundation, Inc.

“They’ve actually chosen which religious beliefs they’re going to exempt, and that’s a big problem under the Establishment Clause,” Seidel said.  Most of the religious freedom laws privilege religion over non-religion, but the Mississippi law also privileges religion over religion, he explained. He called that additional step a “deadly mixture of ignorance and hubris.”

Though it didn’t raise an Establishment Clause argument, the ACLU hinted at this problem in its complaint: “Many individuals and organizations have strong religious and moral objections to interfaith marriages … to recognizing a second marriage following a civil divorce …  to marriages between people of different races.” HB 1523 doesn’t give any of those individuals the right to act on those religious or moral beliefs.

Mississippi legislators basically got so specific with their religious freedom language that they tipped their hand entirely. Not only do specific religious views get preferential treatment, but there is no balancing protection for any other interests involved.

“If you want to discriminate against a same-sex couple or woman who got pregnant out of wedlock, you get that accommodation, period,” said  Greg Lipper, senior litigation counsel for Americans United for Separation of Church & State.

Lipper said AU is considering bringing a suit of its own. If that were to happen, AU could build a case on the law’s violation of the Establishment Clause, freedom of speech, equal protection, or the due process right to marry. “There are at least four distinct constitutional vulnerabilities to the law,” he said.

FFRF, for its part, doesn’t have any plans to attack the bill at the moment, according to Seidel. He added that while the Establishment Clause argument may be strong, the other arguments raised by the ACLU and Campaign for Southern Equality are even stronger.

But that doesn’t mean there isn’t room to bring them up too. Oliver Diaz, co-counsel on the ACLU suit, said he’s been in touch with other lawyers and expects even more challenges to be filed against the Mississippi law in the coming weeks. All lawyers I spoke with seemed confident the bill would be struck down no matter what.