AP Photo/Emily Wagster Pettus
Jennifer Riley-Collins, executive director of the American Civil Liberties Union of Mississippi, center, speaks Monday, May 9, 2016, in Jackson, Mississippi, about a lawsuit the group filed against the state over House Bill 1523, which will allow workers to cite their own religious objections to same-sex marriage and deny services to citizens.
A recently-enacted Mississippi law that permits the denial of services to LGBT individuals on religious grounds could have sweeping implications well beyond the realm of gay marriage, and has reignited a longstanding legal debate over the nature of religious freedom protections granted by the First Amendment.
The so-called Protecting Freedom of Conscience from Government Discrimination Act permits those with "sincerely held religious beliefs or moral convictions" regarding gender identity, sexual orientation, and non-marital sex to deny services to LGBT individuals without government sanction.
The controversial bill, which Mississippi Governor Phil Bryant, a Republican, signed into law last month, has been cast by its supporters as addressing solely marriage and the rights of wedding services providers.
But the legislation goes much farther than that, legal experts say. In addition to giving businesses and private actors the right to deny services on religious grounds, the law also extends religious protections to government workers, medical professionals, and adoption agencies. That makes it legally permissible for a state government clerk, for example, to refuse to issue a marriage license to a same-sex couple, a doctor to refuse to treat a transgender patient, or a business to fire a woman who comes out as gay or bisexual to her co-workers.
The law's critics argue that because of the way it defines a "sincerely held religious belief or moral conviction," the measure also opens the door to discrimination against non-LGBT people who may violate what religious believers, such as evangelicals, define as societal norms. "The law creates gender discrimination and sex-specific codes that are clearly unlawful," says Matt Steffey, a professor at the Mississippi College School of Law.
By allowing religious individuals to opt out of a wide range of legal obligations, only a few of them directly related to same-sex marriage, Mississippi's law could violate the First Amendment's separation of church and state, constitutional law experts warn. The law has triggered an economic backlash in Mississippi, and civil rights activists have beaten back similar religious refusal measures in Georgia, Virginia, and Missouri this year. All that has prompted calls for state legislatures to reconsider how they approach hot-button religious freedom proposals.
"In attempting to accommodate certain religious preferences, [the laws] actually violate basic religious freedom protections," said Elizabeth Platt, the associate director of Columbia Law School's Public Rights/Private Conscience Project, a law and policy think tank that studies how religious exemptions affect reproductive rights and LGBT equality, responding to questions via email.
In a recent memo examining Mississippi's religious refusal bill, the Project concluded that the measure "presents a conflict with First Amendment religious freedom doctrine by providing for religious exemptions that will meaningfully harm the rights of others, particularly LGBT Mississippians." The memo, which was signed by a group of law professors from schools in and outside of the state, argues that Mississippi's failure to address how broad religious freedom protections effect the rights of both LGBT and non-LGBT citizens constitutes a clear violation of the First Amendment's Establishment Clause, a provision that bars the government from favoring religion at the expense of secular interests.
In Mississippi, "there's no balancing of rights between the religious agency's wish to discriminate and the right of the government to direct its own funds to promote nondiscrimination," Platt told the Prospect. "Under the law, the agency gets to discriminate, period."
That imbalance could put the Mississippi law on the wrong side of legal precedent, the law's critics say. Supporters of religious freedom laws such as Mississippi's often argue that exemptions are necessary to preserve religious liberty. But religious liberty has never been unconditional, say constitutional law scholars. In fact, the question of how to balance the free exercise of religion with individual civil rights protections has come repeatedly before the Supreme Court, which has shifted positions on the topic several times over the past half-century.
Prior to the 1960s, courts and state legislatures tended to deal with religious exemptions on a case-by-case basis, granting exemptions as conflicts arose. That changed in the 1960s, when the Court, concerned about protecting the rights of religious minorities, ruled in Sherbert v. Verner (1963) that the Free Exercise Clause of the First Amendment bars the government from forcing religious objectors to act against their beliefs. However, the Court imposed a "strict scrutiny" standard on this mandate that set a high bar for government regulation in this arena.
In subsequent decades, the Court began to back away from the standard set in Sherbert, drawing a line between protecting an individual's ability to engage in religious practices and giving disproportionate treatment to religious objectors. In its 8-1 decision in Lemon v. Kurtzman in 1971, the Supreme Court established a three-part test for determining when states were allowed to support religious accommodations, making it permissible when the law served a "secular legislative purpose;" when the law did not promote or impede religious interests, and when the law would not create "an excessive government entanglement with religion." The Court upheld that line of reasoning in Estate of Thornton v. Caldor, Inc. in 1985, ruling 8-1 that a Connecticut statute that guaranteed religious employees the right to a day of rest on their observed Sabbath violated the separation of Church and State.
In 1990, the Court delivered another blow to the "strict scrutiny" standard, ruling in Employment Division v. Smith that a private drug rehabilitation organization in Oregon was allowed to fire two Native American employees that had used an illegal hallucinogen as a part of a religious ceremony. Writing for the majority, Justice Antonin Scalia argued that while the Free Exercise Clause could be used to protect an individual's right to certain religious practices, "we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." The ruling ended the use of the "compelling interest" test, shifting the burden of proof back onto those seeking religious exceptions.
The Establishment Clause hasn't been used to challenge Mississippi's law yet, but some academics argue that the measure is clearly unconstitutional on First Amendment grounds. "The [Mississippi] law identifies very specific religious or moral beliefs and singles them out for protection," says Steffey. "It is not religiously neutral."
Steffey also notes that religious objectors in Mississippi already enjoy broad protections under state and federal law. In 2014, Mississippi enacted a state Religious Freedom Restoration Act that, much like similar measures passed in some 20 other states, makes it easier for religious objectors to seek exemptions to government laws. Such religious freedom laws have become increasingly common following the Supreme Court's 5-4 decision in Burwell v. Hobby Lobby in 2014, which stated that for-profit companies have the same religious freedom rights as individuals and nonprofits. And due to the religious nature of their work, the First Amendment already protects the right of pastors and clergy to refuse to participate in same-sex weddings.
Mississippi is one of 28 states in the U.S. that lacks non-discrimination protections for individuals on the grounds of sexual orientation or gender identity.
Ironically, even as nearly 200 anti-LGBT bills have been proposed in states across the country, supporters of religious freedom laws have argued that religious objectors to same-sex marriage-not LGBT individuals-are the ones who need protection from government discrimination.
While conservatives have hailed Mississippi's bill as offering much-needed relief for religious objectors to same-sex marriage, their triumph may be short lived. On Monday, the American Civil Liberties Union announced that it is filing a federal lawsuit against Mississippi, arguing that the measure violates the Supreme Court's 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide.
On Tuesday, the day after the ACLU's announcement, the progressive Campaign for Southern Equality filed a second federal lawsuit against Mississippi, taking specific aim at the law's "recusal" provision-a set of protections that allows state government officials with religious objections to same-sex marriage to recuse themselves from issuing marriage licenses to gay and lesbian couples. The plaintiffs argue that the provision violates a 2014 U.S. District Court decision that ruled that Mississippi could not block same-sex marriages in the state.
More lawsuits inevitably loom. When it comes to Mississippi's law, "there aren't two sides to the argument legally," says Steffey. The law, he adds, "is an unconstitutional solution in search of a problem."
