Mississippi has passed a religious freedom bill that stops any progression made in the LGBT community since the Supreme Court ruled in favor of gay marriages in Obergerfell v. Hodges.
The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both private and state employees to discriminate against those in the LGBT community. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergerfell.
Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.
The Bill Is a Roundabout Way of Making it Legal To Discriminate Against LGBT
The beginning text of the bill states:
“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
It looks discriminatory, but the bill says the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs. The government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs.
The bill isn’t necessarily promoting a ban on gay marriages so much as they are granting protection from governmental backlash to those that refuse to render services to the LGBT community. Regardless of how it’s worded, the application of the law will no doubt have an extremely negative and unfair impact on the LGBT community.
Law Will Be Unfairly Applied Regardless of Intent to Protect Religious Freedom
Below is a summary of how the bill will affect the LGBT community. Individuals/businesses will be able to do the following without governmental repercussions:
- Individuals, including government employees, can refuse to perform marriages, issue marriage licenses, decline accommodations, facilities, goods or privileges for the purpose of recognizing a gay marriage. This includes photography, videography, disc-jockey services, wedding planning, and cake services, among many others. Pretty much anything you would need to plan a wedding is protected.
- Individuals can make employment decisions based on sexual orientation and gender identity, which includes decisions on whether to hire or terminate an employee.
- Individuals can refuse to sell, rent, or make other terms and conditions about occupying a dwelling or other housing based on sexual orientation and gender identity.
- Adoption agencies can refuse to place a child in your care based on sexual orientation or gender identity.
- Medical professionals can refuse services related to counseling, treatment, or surgeries related to sex reassignment or gender identity transition.
- Medical professionals can refuse to participate in fertility services for a gay couple. Legislature did include a stipulation that medical professionals cannot deny visitation, recognition of designated representatives for health care decision-making, or emergency medical treatment. How generous of them.
- Individuals and businesses can establish sex-specific standards concerning employees or students in how they groom themselves and dress themselves and can restrict access to bathrooms and locker rooms based upon sex. Essentially, an employer can refuse to allow a transgender individual to dress how they want or go in the restroom they identify with.
Drafters of the bill did include language that the government must take steps necessary to ensure that a marriage could be performed and not delayed due to one employee’s refusal to perform said services. If every government employee able to issue marriage licenses refuses due to their personal religious beliefs, then what? Delay would be inevitable.
Time Will Tell Whether the Bill Will Be Upheld
I’m sure the bill, and others like it, will inevitably be challenged all the way up to the Supreme Court. The Supreme Court will always protect religious freedom, but there has to be a line when it comes to discrimination.
Ever heard of the Federal Civil Rights Act? Sexual orientation isn’t specifically covered under the Act yet, but the federal EEOC does consider sexual orientation and gender identity protected classes and has recently filed federal lawsuits against private employers for sexual orientation discrimination. In light of recent rulings made by the Supreme Court, no doubt they will rule in favor of the LGBT community if a case makes its way up the chain.
Although the text of Mississippi’s bill itself may not be violating any rights, it may not survive an as-applied challenge. Even though the law only prohibits the government from taking governmental action against those that choose to discriminate, if you consider the fact that all government employees could essentially refuse to issue a marriage license because of this new law, then it’s in direct contradiction to Obergerfell. Don’t even get me started on the housing, employment and right to privacy issues that arise out of the bill.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law