Lyle Denniston, the National Constitution Center constitutional literacy adviser, explains why the Supreme Court will be drawn into the post-Obergefell controversy over claims of religious freedom and continuing claims of discrimination against gays, lesbians and bisexual and transgender people.
THE STATEMENT AT ISSUE:
“In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction….And now Obergefell v. Hodges has led to HB 1523. The next chapter of this back-and-forth has begun….Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But HB 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”
– Excerpt from a decision by U.S. District Judge Carlton W. Reeves of Jackson, Miss., on June 30 temporarily blocking enforcement of Mississippi’s House Bill 1523, titled “Protecting Freedom of Conscience from Government Discrimination Act.” The judge acted one day before that law was scheduled to go into effect. The law’s ultimate fate depends upon a coming trial of challenges to its constitutionality.
WE CHECKED THE CONSTITUTION, AND…
Almost exactly one year ago, the Supreme Court decided a handful of cases, all under the title Obergefell v. Hodges, declaring that the Constitution required that same-sex couples must have equal access to the right to marry. Right after that ruling came down, there was resistance in some states, where officials argued that the ruling was confined to the six states directly involved in the Obergefell decision. Gradually over the year, however, most lower courts have required states to obey the ruling. The right is now generally recognized to exist nationwide.
The decision, though, also set off a wide-ranging national debate that seeks to define a fundamental right of religious freedom, when many people object as a matter of faith to the newly declared constitutional right.
That debate has focused, in the main, on when individuals who work in government, or in businesses offering private services, may refuse to help implement the marriage right because of their religious belief that marriage should occur only between one man and one woman.
After a year, the sorting out of this controversy still remains in its early stages, but there have been significant developments.
Of symbolic importance is the case of a Kentucky county clerk, Kim Davis, who gained national prominence for refusing – as a matter of faith – to put her name on marriage licenses for gay and lesbian couples. Now, having won from the state legislature a change in the law that exempts clerks like her from personally signing off on same-sex marriage permits, she is seeking to end her several lawsuits aimed at achieving the same result.
Also with symbolic visibility is the situation of Alabama’s often controversial chief justice, Roy S. Moore. Temporarily removed from office because of his action urging defiance by county judges in the state, Moore is fighting in court his complete ouster as chief justice.
Across the nation, additional state legislatures have been passing their own versions of religious freedom protection laws, many of them borrowing exactly the language of the 1993 law that was at the center of two Supreme Court rulings on Obamacare, the major federal health care reform law, mandating access to birth control methods and devices.
The state legislature in Mississippi this year probably went further than any other has in a direct reaction to the Obergefell decision. Its House Bill 1523 bars any action by government or by private individuals or organizations from discriminating in any way against a government employee or a provider of private business services, if that person refuses a benefit or commercial opportunity related to same-sex marriage. In other words, private retaliation as well as official retaliation against such refusals is barred.
The law spells out the specific religious beliefs that are being insulated from all such acts of discrimination or retaliation. Those are (1) a belief that marriage is or should be recognized only between one man and one woman; (2) a belief that only a couple in an opposite-sex marriage may legally engage in sexual relations, or (3) a belief that any reference in law or other controlling norms to “male” or “female” refers only to the gender assigned at birth. (That third provision illustrates that the Obergefell decision has given added strength to a “new” civil rights movement, to protect transgender people from discrimination.)
As U.S. District Judge Carlton W. Reeves described the breadth of the new law, the state of Mississippi – defined as state officials as well as private individuals in a position to take action against others – “will not tax you, penalize you, fire you, deny you a contract, withhold a diploma or license, modify a custody agreement, or retaliate against you, among many other enumerated things, for your beliefs” in the three, specified categories that get protection.
Ruling on June 30 that the new law is not likely to withstand the constitutional challenge that he will consider at a forthcoming trial, Judge Reeves said that House Bill 1523’s “fundamental nature” is to establish “a broad-based system by which LGBT persons and unmarried persons can be subjected to differential treatment solely on their status. This type of differential treatment is the hallmark of what is prohibited by the Fourteenth Amendment.”
The state of Mississippi has been defending the new law energetically, and it will do so when the trial is held. But it does have the option, even before that trial, to take its defense of H.B. 1523 to a higher court – either the U.S. Court of Appeals for the Fifth Circuit or, ultimately, the Supreme Court.
It is next to a certainty that, at some point before long, the Supreme Court will be drawn into the post-Obergefell controversy over claims of religious freedom and continuing claims of discrimination against gays, lesbians and bisexual and transgender people. The eight Justices currently on the court are often deeply divided in cases about religious liberty, as they showed again several times in their just-ended term, and that by itself is a virtual invitation for those seeking to defend that liberty to return often with their pleas.
