By Mark Joseph Stern
Roberta
Kaplan, the attorney who masterminded the lawsuit against HB 1523, with Edie
Windsor, whom she represented in her successful effort to challenge the federal
same-sex marriage ban.
Photo by Andrew H.
Walker/Getty Images for Logo TV
Anti-LGBTQ activists just
suffered their worst defeat since the Supreme Court’s marriage equality
decision—a rout so stinging and decisive that it calls into question the
viability of their entire strategy post-Obergefell.
That drubbing came in the form
of an astonishing 60-page
opinion by
U.S. District Judge Carlton W. Reeves blocking every single part of
Mississippi’s sweeping, vicious
anti-LGBTQ segregation law from taking effect. The law, HB 1523,
granted special protections to three religious beliefs: Those who oppose
same-sex marriage; those who oppose sex outside of marriage; and those who
dislike trans and gender-nonconforming people. Starting July 1, HB 1523 would have allowed religious landlords to evict
gay and trans renters; permitted religious employers to fire workers for being
LGBTQ; granted state and private adoption agencies the right to turn away
same-sex couples; allowed private businesses to refuse service to LGBTQ people;
given doctors a right to refuse to treat LGBTQ people in most circumstances;
and permitted clerks to refuse to marry same-sex couples.
Hours before HB 1523 was set
to take effect, Reeves issued an injunction, holding that the law, in its
entirety, violates both the Equal Protection Clause and the Establishment Clause.
(Reeves had already halted the clerk-specific portion of
the bill.) His decision marks a momentous occasion—the first time a federal
judge has found that so-called “religious liberty” bills, designed to
disadvantage LGBTQ people, violate the U.S. Constitution. Reeves’ opinion is
worth paying careful attention to; its findings and logic are certain to be invoked
in similar decisions across the country in the coming years.
The genius of the lawsuit
against HB 1523, which was brought by Windsor mastermind Roberta Kaplan, is its fusion of fundamental
yet typically distinct constitutional principles: “the guarantee of religious
neutrality and the promise of equal protection of the laws.” Mississippi argued
that its law promoted religious liberty. Quite the opposite, Reeves
explains: In reality, HB 1523 “establishes an official preference for certain
religious beliefs over others,” a quintessential violation of the Establishment
Clause. Anti-LGBTQ religious beliefs are explicitly favored; adherents to those
beliefs receive a special right to discriminate that is unavailable to all
others. “Persons who hold contrary religious beliefs are unprotected,” Reeves
explains; “the State has put its thumb on the scale to favor some religious
beliefs over others.”
This favoring of certain
religious sects is especially problematic because it “comes at the expense of
other citizens,” namely LGBTQ people. The Supreme Court has found that laws that advance
religious beliefs in a way that burdens those who don’t share those
beliefs violate the Establishment Clause. HB 1523 is guilty of this sin,
because it gives anti-LGBTQ Mississippians “an absolute right to refuse service
to LGBT citizens without regard for the impact on their employer, coworkers, or
those being denied service.”
By uniquely burdening the
LGBTQ community, Reeves notes, HB 1523 also violates the Equal
Protection Clause of the 14th Amendment. Under the Supreme Court’s
decision in Romer v. Evans, laws motivated by “animus”
toward sexual minorities are unconstitutional. And as Reeves demonstrates in
his decision, it is beyond rational belief that HB 1523 was motivated by
anything but “a bare desire to harm” LGBTQ people. Reeves charts the
legislative history of the law, noting that its sponsors and supporters
repeatedly declared that its purpose was to legalize discrimination against
sexual and gender minorities. These legislators were surprisingly honest about
their aversion toward LGBTQ people. The speaker of the House stated that Obergefell
was “in direct conflict with God’s design for marriage as set forth in the
Bible” and declared, “I don’t care what the Supreme Court says.” Other
representatives called HB 1523 “balancing legislation” to Obergefell,
“very specific to same-sex marriage,” intended to relegate LGBTQ Mississippians
to second-class citizenship once again.
The text and history of HB
1523, Reeves writes, clearly “indicate that the bill was the State’s attempt to
put LGBT citizens back in their place after Obergefell.”
Under
the guise of providing additional protection for religious exercise, HB 1523
creates a vehicle for state-sanctioned discrimination on the basis of sexual
orientation and gender identity. … The majority of Mississippians were granted
special rights to not serve LGBT citizens, and were immunized from the
consequences of their actions. LGBT Mississippians, in turn, were “put in a
solitary class with respect to transactions and relations in both the private
and governmental sphere” to symbolize their second-class status. As in Romer,
Windsor, and Obergefell, this “status-based enactment” deprived LGBT citizens
of equal treatment and equal dignity under the law.
“The deprivation of equal protection of the
laws is HB 1523’s very essence,” Reeves concludes. “It violates the Fourteenth
Amendment.”
Mississippi is almost certain
to appeal this ruling to the U.S. Court of Appeals for the 5th
Circuit, which leans conservative. But Reeves’ ruling is essentially
bulletproof, on everything from technical issues like standing—Kaplan found the
perfect plaintiffs, religious leaders who are disfavored by HB 1523—to broad
constitutional questions like equal dignity. His opinion is largely a
recitation of well-established Supreme Court decisions, highlighting their
stark relevance to HB 1523. This is a landmark ruling, one whose breadth,
depth, and analytical incisiveness cannot be easily rebuked. Reeves has given
LGBTQ advocates their biggest triumph since Obergefell. Any state
looking to pass a similar anti-LGBTQ “religious liberty” law has now been
warned: The Constitution will not tolerate your efforts to discriminate against
LGBTQ people under the feeble guise of selective religious freedom.
*Update: This post has been updated to reflect the work of the Mississippi
Center for Justice in the litigation against HB 1523.
Source: slate
