A controversial, religion-based LGBT law in Mississippi can't be blocked based solely on fears that discrimination will follow, a federal panel of judges ruled this week.
On the surface, Mississippi's HB 1523, passed last year, appears to be "religious freedom" legislation intended to protect Christian conservatives from state punishment for making decisions like declining to sell wedding cakes to gay couples.
What the law actually does is more complex, anti-libertarian and clearly unconstitutional.
The law grants special protections by the state for three particular religious beliefs. They are:
- Marriage is or should be recognized as only being between a man and a woman.
- Sexual relations are properly reserved to such a marriage.
- Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.
The law grants people who have only those beliefs various protections under the law. Religious organizations cannot be accused of discrimination on the basis of making decisions in accordance with the protected beliefs. The state cannot discriminate against families who want to adopt or foster children because they share those protected beliefs.
The state cannot punish doctors or therapists who refuse to provide services that would violate those beliefs (meaning a doctor couldn't refuse to treat people simply because they're gay or transgender but could refuse to provide therapy or treatment to help facilitate a sex change).
The state couldn't punish businesses for refusing to serve people in accordance with those beliefs or interfere with schools and businesses setting their own policies of how (or if) to accommodate transgender people. The state wouldn't even be able to punish government employees who refuse to hand out same-sex marriage licenses, but only if it's because of their religious beliefs.
To be very clear, this is not some form of Religious Freedom Restoration Act allowing people general but limited exceptions to following laws because of religious beliefs. This is a law that determines only these three beliefs get special protection. The law is in clear violation of the Establishment Clause, which prohibits the government from showing a preference for any particular religious belief. It is blatantly unconstitutional.
Objecting to the law, a group of plaintiffs filed suit, and a lower court put an injunction in place to keep it from implementation.
The U.S. Fifth Circuit Court of Appeals panel did not make a decision about the constitutionality of the law in any way. Instead, the three judges ruled unanimously that the plaintiffs lacked standing at this point to oppose the law. There is no case yet seeking relief from the courts. The ruling notes that in order for the judges to grant standing, it's not enough to argue that the law violates the Establishment Clause—"[the plaintiffs] must allege a personal violation of rights."
The panel's decision should not be taken as a determination that the law is constitutional or valid. Assuming the law actually gets implemented, it probably won't be long before somebody will be able to prove the law has affected them.