//  4/3/17  //  In-Depth Analysis

Today, the Fifth Circuit will hear argument in Barber v. Bryant, a challenge to Mississippi’s HB 1523. This is the first post-Obergefell case to reach a federal appellate court involving an anti-LGBT "religious freedom" law. It is a significant case in its own right and may have far-reaching implications: a leaked draft executive order from the Trump Administration is similar in key respects to HB 1523, as is legislation pending in both houses of Congress (the First Amendment Defense Act). Bryant is a case worth following. If the Fifth Circuit upholds HB 1523, it will imperil civil rights throughout the nation.  

Often, cases like this one are portrayed as LGBT rights v. religious freedom. Fair enough: in some circumstances, there truly is a clash of interests. But not here. Although it is decorated and defended with the rhetoric of accommodation, HB 1523 not only eviscerates LGBT rights, but also shreds core tenets of religious liberty. Drafted with the manifest purpose of privileging anti-gay religious beliefs above all other interests, and in a manner that sends a clear message of religious endorsement, HB 1523 functions as a sword against non-adherents rather than as a shield for the faithful.

Ultimately, if states are free to so flagrantly establish preferred religious teachings—literally writing favored creedal statements into their legal codes and denying protection to non-adherents—then religious freedom is threatened everywhere.

Accordingly, this is not a case where the Free Exercise Clause clashes with LGBT rights. Rather, it is case where the Free Exercise Clause and Establishment Clause, both of which command non-discrimination, would be vindicated by a decision enjoining HB 1523. As the Supreme Court has made clear, “The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.” Lee v. Weisman, 505 U.S. 577, 587 (1992). And it is hard to imagine an Establishment Clause limit that HB 1523 does not violate. 

I am therefore proud to represent a group of church-state scholars as amici curiae in Bryant. As a lawyer, a citizen, and a religious minority, HB 1523 offends me. It is one thing to truly accommodate religious objectors; it is quite another to use the language of free exercise while disparaging adherents of disfavored religious beliefs. 

Background on HB 1523: A Most Unusual Law 

HB 1523 prohibits the State of Mississippi from taking “discriminatory action” against persons or organizations for conduct "based upon or in a manner consistent with" three "religious beliefs or moral convictions":

(1) that “[m]arriage is or should be recognized as the union of one man and one woman;”

(2) that “[s]exual relations are properly reserved to such a marriage;” or

(3) that “male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Every term in HB 1523 is defined broadly. For instance, "person" includes for-profit corporations. And "discriminatory action" includes any "fine, fee, penalty or injunction;" any modification of tax status; any change in the availability of state funding; any action taken with respect to a license, custody award, or accreditation; and lots more. 

HB 1523 then specifies a wide range of settings where conduct "based upon or in a manner consistent" with the preferred religious beliefs is immunized. These include the "solemnization, formation, celebration or recognition of any marriage," housing, employment, adoption, foster care, fertility services, psychological services and counseling, and government employment. In short, HB 1523 touches virtually every setting and institution in Mississippi, from intimate healthcare decisions to public accommodation. A restaurant could refuse to let a same-sex couple celebrate their wedding anniversary (since that involves "recognition" of the marriage). A school counselor could refuse to treat a suicidal gay teenager. And so on, and so forth.

HB 1523 further provides that state employees "may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with" the preferred religious beliefs. While HB 1523 adds that "The Administrative Office of Courts shall take all necessary steps to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal," there is no enforcement mechanism or private right of action to ensure the availability of marriage licenses.

Finally, HB 1523 has several breathtakingly odd provisions. For instance, it explicitly exempts itself from the State's Religious Freedom Restoration Act. Thus, if complying with HB 1523 imposes a substantial burden on any person's religious belief, the religious beliefs enumerated in HB 1523 automatically trump those other religious interests. The law quite literally sets the three preferred religious beliefs over every other conceivable religious tenet in Mississippi. To take another example, through a series of unusual definitional terms, HB 1523 authorizes those who discriminate in the name of the preferred religious beliefs to obtain an injunction—and monetary damages!—against any private party’s effort to obtain relief under the anti-discrimination laws.  

In short, HB 1523 is a most unusual law.  Judge Carlton Reeves recognized this when he entered a preliminary injunction last year, concluding that HB 1523 likely violates the Establishment Clause and Equal Protection Clause.

HB 1523 Poses A Clear and Present Danger to Religious Liberty

The United States has a long tradition of religious accommodation. When laws impose burdens on the free exercise of religion, government often provides accommodations out of secular respect for liberty of conscience.

There are, however, well-established limits on the accommodation of religion. Under the Establishment Clause, government may not structure accommodations in ways that have the purpose of promoting religious beliefs, that endorse or discriminate against religious beliefs, or that shift unreasonable hardship to other citizens. See Cutter v. Wilkinson, 544 U.S. 709, 713 (2005); McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 876 (2005). These limitations safeguard religious liberty for Americans of all faiths, denominations, and spiritual persuasions. 

In light of these principles, HB 1523 is unconstitutional for four interrelated reasons. 

First, it was enacted with the forbidden purpose of promoting particular religious creeds, as evidenced by the Governor’s own contradictory statements offered in defense of the law. Even as the Governor characterizes HB 1523 as a response to legal “assaults” on opponents of same-sex marriage, he emphatically denies in his brief that HB 1523 lifts any actual, existing burdens on persons of faith in Mississippi (and he says virtually nothing about the law's provisions regarding nonmarital sexual relations and gender identity). But when a State enacts legislation affording special treatment to three contested religious beliefs, and does so on the explicit premise that those beliefs face no actual burdens, it cannot be concluded that the law is based in genuine free exercise concerns. Rather, such legislation has the purpose of announcing State support for the selected religious beliefs. See Wallace v. Jaffree, 472 U.S. 38, 59 (1985).

Second, HB 1523 endorses the preferred beliefs—and disparages those who do not share them. HB 1523 does not attempt evenhandedly to protect holders of all views on marriage, sexuality, and gender against burdensome regulation. Instead, it singles out specific religious viewpoints on these subjects and treats them as superior to all contrary beliefs. The law thus creates insiders and outsiders, whose rights vary significantly depending on whether they agree with Mississippi’s controversial creedal statements. Moreover, HB 1523 provides that the preferred beliefs always and automatically prevail over any other free exercise interest that may be affected, including interests based in different religious beliefs about the exact same subjects of marriage, sexuality, and gender. HB 1523 thus tells every citizen of Mississippi that adherents of the preferred beliefs rank above all others—and that non-adherents are unworthy of equal treatment.

Third, HB 1523 violates bedrock principles forbidding discrimination on the basis of religious belief and denomination. See Larson v. Valente, 456 U.S. 228 (1982). Not only does it discriminate in favor of the preferred beliefs and against non-adherents, but it also places the State’s imprimatur on a set of religious beliefs embraced by some denominations, denied by others, and actively debated by many. Such governmental favoritism along religious lines is prohibited. 

Fourth, and finally, HB 1523 is invalid under Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), and Cutter v. Wilkinson, 544 U.S. at 720, which forbid accommodations that shift unreasonable hardship to third parties. HB 1523 imposes serious harm on LGBT persons. Yet this unique law privileges the preferred beliefs over every conceivable third-party interest—even though it operates across countless societal contexts and will shift burdens to third parties in ways that infringe on fundamental rights. Given HB 1523’s uncompromising and categorical character, it is impossible that Mississippi adhered to Cutter’s directive to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” 544 U.S. at 720 (citing Thornton, 472 U.S. at 703).

As the foregoing discussion makes clear, in enacting HB 1523, Mississippi has purposefully favored a set of religious beliefs about controversial questions of marriage, sexuality, and gender. The law itself, by virtue of its unprecedented structure, endorses the preferred beliefs, disparages and discriminates against those with different religious truths, and shifts substantial burdens to LGBT citizens and their families. HB 1523 thus declares to every citizen of Mississippi, and in particular to faith leaders and LGBT persons, that the preferred beliefs are exalted above all others in the eyes of the State.

Upholding HB 1523 would pose a grave threat to religious freedom. Apart from HB 1523’s own harms, which are considerable, a decision allowing this kind of legislation would open the door to hundreds of laws just like it: statutes that identify specific propositions of religious belief, confer comprehensive protections only on persons who hold a particular viewpoint on those disputed religious issues, and require that every imaginable contrary interest automatically give way in the event of a conflict. Consider the following statements of belief, potentially enshrined in law and held automatically to trump any competing third-party interest (including other free exercise interests):

  • The earth was created for all mankind, without regard to national borders.
  • The sick are healed through prayer alone.
  • The consumption of alcohol is vile and immoral.
  • Possession of arms must be reserved exclusively to those defending a nation in a just war.
  • Husbands must have dominion over wives and children. 

If this Fifth Circuit blesses HB 1523, it will invite many other religious groups—of all doctrinal and political persuasions—to use whatever clout they can muster to write their own core tenets into law, unleashing forces of religious conflict and suppression. For the sake of religious freedom, this law must be blocked.

HB 1523 and the Trump Administration

Since the Court held that the Constitution protects the right of same-sex couples to marry, and since the Obama Administration sought to safeguard the rights of LGBT people in many other contexts, questions have arisen about the proper nature and scope of accommodations for religious objectors. Within those discussions, and measured against other efforts to strike a balance, HB 1523 is a stark outlier. Not only is it ferociously anti-gay and anti-transgender, but it is also anti-religious liberty.

Since President Trump took office, there has been widespread uncertainty about the state of LGBT rights. One of the most important unanswered questions is whether—and, if so, how—he will address the issue of religious accommodation. 

One possibility is that he will do so through an executive order (EO). Last week on Take Care, Chip Lupu and Bob Tuttle offered thoughts on a leaked draft EO addressing LGBT rights and free exercise. That EO is similar in some respects to HB 1523. And in those and other respects, it raises profound constitutional questions.

Another possibility is that Congress will enact and President Trump will sign the First Amendment Defense Act. This law has attracted formidable political opposition and might well be unconstitutional. Notably, whereas an original version of FADA mirrored HB 1523 in protecting only a single viewpoint on same-sex marriage, a revised draft of the bill now protects from discrimination those holding different views on the subject. That hardly makes FADA anything other than awful, but this evolution likely reflects an awareness by FADA's sponsors that if their bill were to remain as discriminatory as HB 1523, it would be unconstitutional (and unjust).

The fate of HB 1523 may thus offer a lesson in protecting LGBT rights and religious liberty—or, if the Fifth Circuit breaks from precedent and upholds the law, a scary sign of what lurks ahead.

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