Gay Marriage

Religious Objections to LGBT Issues in Mississippi Back in Play—for Now

Rather than advancing liberty, the controversial law establishes state-recognized beliefs.

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Wedding cake
Ivonne Wierink

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.

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  1. “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”

    If only this would lead to the realization that laws establishing protected classes are bullshit. Instead it will just lead to the realization that this particular law is bullshit and establishes and supports an unacceptable protected class.

    If only…

    1. If only there was a law forbidding government from forcing people to do things they don’t want to do. Irregardless of religion or political party or whatever.

      Just don’t force people to make wedding cakes if they don’t want to. Problem solved.

  2. “What the law actually does is more complex, anti-libertarian”

    Which could also be said about all the ‘bake the cake’ legal actions and expanded protected class statuses instituted, and yet I don’t recall that phrase ever being used. While the State shouldn’t merely protect specific religious beliefs, but rather all, Reason is decidedly less free-marketed in its position on these issues. But, you’ll always have Uber, I guess

    1. This is no time for pragmatism! We demand purity (for now).

    2. Besides Uber, there are food trucks and un-pasteurized milk.

  3. “The law grants special protections by the state for three particular religious beliefs. They are:”

    Odd. One of those things is not actually a religious belief, but an acknowledgement of the realities of mammalian biology.

    1. I also like how the law is ‘anti-libertarian’ despite being shot through with things the government cannot do and people they cannot punish.

      It smells an awful lot like the NC bathroom bill where we’re cool with punishing business owners in order to make everyone more equal and/or call a law that protects the rights of private business owners anti-gay and/or anti-libertarian because gay transgendered people exist and they said the law is against them.

    2. The law grants people who have only those beliefs various protections under the law.

      So, anti-(compulsory service to)gay and otherwise ambivalent to religions vs. anti-/non-/secular? And it still violates the Establishment Clause? That’s pretty astounding.

      So, if the law said, “I swear, by my life and my love of it, that I will never live for the sake of another man and/or his husband, nor ask another man and/or his husbad to live for mine.” were a valid exceptional belief would Scott still proclaim it to be anti-libertarian and a violation the Establishment Clause?

    3. You are right about it not being a (specifically) religious belief. You are not right about the rest. It’s about how the words are used, not biology.

      1. The words are meaningless if they’re not used in the way described by the “belief”.

        When someone says they “identify as male” but are not claiming to be biologically or genetically male, what the hell are they claiming? It has as little meaning as someone identifying as drogulus.

        1. They claim they feel masculine, regardless of what their chromosomes are. I personally believe gender shouldn?t even be a legal category. If you don?t have gender-discriminatory legislation, what purpose does gender as a legal category serve? Do governments insist on it only to know where to send people for prison? That shit could be decided on external genitals. For basically everyhing else, it?s irrelevant, just like race.

          1. They claim they feel masculine, regardless of what their chromosomes are.

            That doesn’t answer the question, as the meaning of “masculine” depends on the meaning of “male”.

            If you don?t have gender-discriminatory legislation, what purpose does gender as a legal category serve?

            Separation of bathrooms, locker rooms, dressing rooms, etc. in public facilities, for one. The ideal of equality before the law has to bow to reality at some point — most people don’t like undressing or excreting in front of those of the opposite gender.

            Of course, in this case, we’re talking not about discriminatory laws, but laws protecting freedom of association of those who have certain opinions about gender.

          2. It is important because the law should deal with reality, not delusion.

  4. Is there a libertarian case for public accommodation laws?

    1. Quite correct Fist,

      I believe that it is embraced by ‘freedom of association’, no?

      Whilst one could acknowledge that Reason is using ‘virtue signalling’ to nibble at the issue; but it is time that fence sitters declare the case for ‘Liking Who You Like is OK’ ™

      1. Freedom of association isn’t a thing, really.

  5. Anti discrimination laws are themselves religious violations of freedom, thought crime exceptions to amounting to establishment of religion.

    So do specific religious exemptions to those enforced religious beliefs amount to more or less freedom?

    More freedom in that more people are free to make choices in freedom, less freedom in that rule of law and equality before the law are subverted.

    I think more actual freedom, more corrupt institutions.

    1. Gay marriage is the flip side of this.

      Marriage is not about freedom but about joining a privileged class. In freedom, you can fuck who you want to fuck and live with who you want to live with already. What you don’t get from freedom alone are all the privileges afforded to the married.

      When more people are free to join a privileged class – is that more freedom, or less?

      1. But all those privileges deal with taxes. Fix the taxes and the problem is solved. Everything else can be handled by private agreements and cultural norms. Hospital visitation rights? Up to the hospital! Insurance coverage? Up to the Insurance!

        1. Just remember, any issue you have with open borders helping propagate the welfare state is really just with the welfare state itself. TWO TOTALLY SEPARATE PROBLEMS. The issue with gay marriage is that some people weren’t able to get preferential tax treatment and government benefits. Obviously in that case the solution to TWO TOTALLY SEPARATE PROBLEMS is to expand the definition of marriage.

          Makes sense.

          1. They are pretty separate issues, though.

            I suppose you can draw an analogy in that we’re talking about a set of privileges given by the government to a select group of people.

            In the case of illegal immigrants, they are living here without permission from the government, only paying some of the taxes that everyone else pays, and using government resources. We haven’t found a way to stop them. Hence indeed the issue one may have “with open borders helping propagate the welfare state is really just with the welfare state itself.”

            In the case of gay marriage, certain couple-relationships are granted special status and privilege, and everyone else’s relationships are excluded.

            Most people around here have been arguing that there shouldn’t be the special category in the first place (which is what I took both buybuydandavis andBrandybuck to be saying), but that if it is going to exist, anyone who applies for the status should be eligible for getting it – i.e. “in that case the solution . . . is to expand the definition of marriage” if abolishing it isn’t on the table.

            No gay couples are masquerading as straight couples in order to obtain unauthorized benefits, and there’s no border wall that can be built to keep people out of marriage.

            So, yes – pretty separate problems when you dig down into the weeds.

            1. Most people around here have been arguing that there shouldn’t be the special category in the first place (which is what I took both buybuydandavis

              Yes. In Libertopia, it’s not the government’s business who you live with and whether you’re fucking.

              I can live with benefits for married, and if we’re going there, let gays get married too.

              But the hypocrisy of “it’s so discriminatory to not let me join the government privileged class” does grate.

          2. any issue you have with open borders helping propagate the welfare state is really just with the welfare state itself. TWO TOTALLY SEPARATE PROBLEMS.

            Nope. Issues are directly related.

            Immigrants become citizens and vote. That vote effects welfare levels and government power generally.

            When immigrants immigrate, their politics immigrates with them. The US is one of the freest countries in the world. Immigration means importing less free politics.

            For example:

            PEW Research on Hispanic Americans

            http://www.pewresearch.org/fac…..democrats/
            Hispanics Lean Democratic over 3 to 1

            http://www.pewhispanic.org/201…..-religion/
            Hispanics Want Bigger Government Providing More Services over 3 to 1
            **** See that part? Read again if you missed it.*****

            OPEN BORDERS MEANS BIGGER GOVERNMENT, MORE WELFARE

        2. Yes, the reason Obergefell was a case was due to the existence of an openly redristibutive, punitive, and obnoxious class of taxes. But few stiries were focused on hie the estate tax was unjust in itself.

      2. What you don’t get from freedom alone are all the privileges afforded to the married.

        I think about that every year while doing our taxes. Knowing that 2 people living together not married, with the same income, will be paying less.

        1. That also should not be the case. You should neither be rewarded nor punished for your chosen lifestyle.

        2. If you go into that at any depth, thete is no evenhsnded wat o apply income tax to all living arrangemets, due to the nature of the tax.

    2. A law that superficially results in more freedom can still be deleterious to liberty if it disrupts equality before the law, and gives a unique advantage to one group of people over another.

      An example is the laws allowing cops to carry guns off-duty while prohibiting anyone else from doing so.

      1. How is that deleterious to liberty?

        The analysis here is wrong. Increasing anybody’s liberty to any degree is libertarian, no matter the possible degree or possible persons it could’ve expanded liberty to/of but didn’t. For isntance, was it not a good thing to outlaw slavery of whites? It paved the way for the eventual abolition of all slavery; but even if it hadn’t, wouldn’t it’ve been a good thing?

        1. If the law were changed to say that off-duty cops can (as private citizens) rape or kill anyone they want without penalty, is that libertarian? It increases the liberty of some people and doesn’t decrease anyone’s liberty.

          1. It diminishes the liberty of those to be raped or killed. But allowing them to carry weapons doesn’t diminish anyone’s liberty, nor does allowing some people an exception in you-must-serve-them laws.

  6. Seems like the good kind of law. It protects citizens from actions of their government.Those moral convictions are in no way unique to “conservative Christians”.

    1. Gullibility does not become us.

  7. Once you have a religiousexemption, you have state recognized beliefs. If we agree that I can’t deny services to lgbt people simply because I don’t like fags, then we’ve carved out state recognized, legitimate reasons for me to not like fags.

  8. Marriage is or should be recognized as only being between a man and a woman.

    This is a secular belief that has been reflected in the laws of every society since the dawn of civilization, regardless of religion or lack thereof.

    If your definition of “religious belief” is “any statement that a religion agrees with or teaches, even if it didn’t originate with religion” then we have to take laws against murder and theft off the books as 1st amendment violations too.

    Sexual relations are properly reserved to such a marriage.

    That view is again extremely widespread among societies of every religion and irrelgious societies as well.

    Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.

    As Ken noted above, there is no way on earth this is a “religious belief”. No religion even bothers stating this because it’s just obvious.

    1. Marriage is or should be recognized as only being between a man and a woman.

      This is a secular belief that has been reflected in the laws of every society since the dawn of civilization, regardless of religion or lack thereof.

      No it isn’t. Lots of societies have condoned plural marriages. It tends to be one of one gender and plural of the other gender, but “only being between a man and a woman” is simply not true.

      Sexual relations are properly reserved to such a marriage.

      That view is again extremely widespread among societies of every religion and irrelgious societies as well.

      Again, nope. Lots of societies have been perfectly comfortable with the difference between legal spouse and recreational relationships. Ancient Rome is a great example. One might even argue that the distinction between “wife” and “mistress” was a perfectly normal and widely understood one until quite recently.

      1. On your last point, there are, genetically speaking, two basic categories of human – x and y (there are deviations, but deviations prove the norm, so to speak). This is a really, really narrow definition of “gender” that doesn’t really describe lived reality. You need to do a genetic test on everyone you meet if this is going to be your standard for gender (i.e. social/behavioral) identification.

        There are more than two sets of possible genitalia people can be born with, and “gender correction surgery” has been a thing for longer than you think – it’s just generally performed secretly in order to comfort people who feel threatened by the idea of non-binary gender.

        But the words “male” and “female” have a much, much wider semantic range than that. So 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” is an aggressive restricting of the meaning of those words that is based in a willful act of affirmation of a belief, “religious” or not.

        To use a silly example to drive the point home, how are we to refer to the different elements of an electrical plug and socket if “Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth?”

        1. In the vast majority of cases, the genetic/biological gender is clearly identifiable in the person’s appearance.

          Again, may I remind you that the question of what male and female were was NEVER an issue, from the dawn of the human race (and before) until like 4 years ago. The smallest child could understand it, and identify which people were of which gender with ease. It is beyond stupid to act as if this is some sort of rigid ideological stricture imposed by Christian conservatives.

          There are more than two sets of possible genitalia people can be born with

          Bullshit. In a tiny number of cases there are congenital deformities to genitalia, but those don’t constitute “different sets”.

          But the words “male” and “female” have a much, much wider semantic range than that.

          If so, then you should be able to come up with a meaning for those words that does not depend on biological gender. One will suffice. (You better not piss off our local SJWs by stereotyping either)

          1. To use a silly example to drive the point home, how are we to refer to the different elements of an electrical plug and socket if “Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth?”

            You’re right — that is a silly example, because it proves my point. Those names for cable attachments are an analogy from human anatomy (obviously). When those names were decided upon because the meaning was immediately obvious to anyone without explicit explanation. I doubt any electricians would have been comfortable explaining to their young apprentices that a connector was called “female” that because it resembled a vagina, but luckily it was obvious to those apprentices what the analogy was — because that’s what “female” means.

      2. No it isn’t. Lots of societies have condoned plural marriages. It tends to be one of one gender and plural of the other gender, but “only being between a man and a woman” is simply not true.

        Extremely few examples of plural marriage, i.e. a simultaneous joining of 3 or more, each to each. Plenty of examples of polygamy, though: the condition of an individual’s being part of more than 1 marriage at a time. Each marriage, however, is a joining of 1 man to 1 woman.

        I’m surprised more people don’t see this point. Polygamy isn’t A+B+C, it’s (A+B) + (A+C). B & C are married only to A, not to each other. Plural marriage would be A+B+C, where A is married to B & C, B is married to A & C, and C is married to A & B; hardly ever happens.

      3. No it isn’t. Lots of societies have condoned plural marriages. It tends to be one of one gender and plural of the other gender, but “only being between a man and a woman” is simply not true.

        You’re speaking of one person having multiple marriages, not a single marriage involving more than 2 people. In the historical examples of polygyny, the various wives were not considered to be married to each other; each had a separate marriage to the same husband. Thus each marriage was between a man and a woman.

        Lots of societies have been perfectly comfortable with the difference between legal spouse and recreational relationships.

        Again, nope right back atcha. People have privately fallen short of the standards of society, but that does not mean the standards aren’t there. Since such “recreational relationships” have nearly universally been conducted in private, that actually reinforces the existence of standards. “Hypocrisy is the tribute vice pays to virtue” as they say.

  9. 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.

    Despite the fact that Orthodox Jews, Muslims, and Hindus would agree with the X-cons on all three points. Even liberals of those faiths would balk at disagreeing with the third when in private.

  10. May two brothers marry one another?

    May a Mother marry her daughter?

    May one female and two males form a marriage?

    If not, why not?

    1. Because we have to figure out how the government benefits will be divvied up.

    2. In the mother/daughter one you have an agency problem on the daughter side, but on the others, why is it any of your business?

      1. I think the point is that the same arguments can be made to support legalizing, and forbidding discrimination against, any of those arrangements. Yet the gay crusaders don’t support them and in many cases expressly disavow them.

        1. ” Yet the gay crusaders don’t support them and in many cases expressly disavow them.” This is where the concept of gay “marriage” continues to be a little fuzzy for me. If 2 sisters form a household and rely on each other’s income, why is the survivor denied survivor benefits? Presumably married people have sex, gay or straight, so having sex with someone is a prerequisite for government benefits. The sisters may have the exact same financial obligations to each other but because they don’t have government recognized sex they are SOL. All of this gay marriage controversy could have been avoided simply by allowing people to assign their benefits to anyone of their choosing. But the gay crusaders oppose anyone else enjoying those benefits.

    3. Consenting adults should be allowed to do whatever they want as long as it doesn’t violate the rights of others to be left alone. Key words being consenting and adults.

  11. “The law is in clear violation of the Establishment Clause, which prohibits the government from showing a preference for any particular religious belief.”

    All else aside, the law does not show preference for any particular belief. It codifies the beliefs of the three or four major religions in the world to protect them from one other religious belief, atheism. (and some would say liberalism)
    The root cause of all this mess is the lazy legislature using ‘marriage’ as the basis for government preferential treatments in taxes, insurance, and medical authority, among other things.
    What violates the establishment clause, if anything, is the government recognition of any marriage at all.
    And point three is science, not religion of any kind.

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  13. Well this room is full of the sort of enlightened debate I’ve come to known from H&R. So glad all you semi-feral woods people could take a few minutes away from fucking your cousins to extol the virtues of theocracy.

  14. Libertarianism!

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