This week, the nightmare scenario comes to life as Mississippi may at last implement the most expansive attack on LGBT equality in a generation—if the Supreme Court does not step in first.
That’s because the 5th Circuit Court of Appeals rejected the demand (PDF) to rehear the challenge to Mississippi’s HB 1523 as a full court (“en banc” in legal parlance), thus leaving in place a three-judge panel’s decision from last June, which held that plaintiffs lacked standing to challenge the law.
While that is technically a ruling on procedure, not the merits of the bill, it also means that the case is dismissed.
For now, anyway.
It seems certain that the decision will be appealed to the Supreme Court, particularly as the panel adopted a very strict interpretation of standing, the requirement that parties to a lawsuit actually be affected by what they’re suing about.
It’s also possible that an entirely new challenge will be filed post haste, with a request for an injunction to stop the law from going into effect—or that the district court that originally heard this case will issue some kind of a stay.
All that will be decided over the next 48 hours.
Lawsuit aside, HB 1523 is a bold, and almost certainly unconstitutional, attack on LGBT individuals. Signed into law on April 5, 2016, the law singles out three religious beliefs for special protection: that marriage means one man and one woman, that sexual relations should only happen inside such a marriage, and that gender is “immutable” and corresponds to sex at birth.
If you, an organization, or a corporation holds one of those beliefs (remember, after Hobby Lobby, corporations have religious beliefs), then you may refuse a same-sex couple lodging at your hotel, refuse to host a gay marriage celebration at your for-profit hotel or restaurant, and refuse to provide any marriage-related services related to “photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.”
If you’re a doctor or hospital with one of those three beliefs (again, hospitals have religious beliefs too), then you can, deny counseling or “fertility services” to someone gay or trans or the child of a same-sex couple. You can also deny a trans person any kind of gender-related medical care whatsoever.
If you’re a religious organization, you can fire any employee for being gay, trans, or pro-gay, even if they have roles that have nothing to do with religion or education.
You can refuse to rent an apartment or any other property to a gay or trans person, even if it has nothing to do with a wedding. You can even refuse to rent an apartment to an unmarried straight couple who you think might be having sex.
If you’re a school, business, or other organization, you can force trans people to dress as their biological sex at birth and restrict their access to any “intimate facilities or settings,” including, of course, bathrooms, where there have been zero reports of transgender people ever assaulting anyone.
If you’re a state employee, and while at your job you want to proselytize, condemn homosexuals as sinners, argue that gay people should be killed, or put up posters condemning homosexuality as a sin, the state cannot fire you. If you don’t want to issue a marriage license, you can opt out of doing your job.
There are plenty more provisions in the law. State-funded adoption agencies can refuse to place children with LGBT parents, and cannot refuse to place gay children with anti-gay parents. State housing agencies can discriminate against gay and trans people. I could go on, but I won’t.
The response to HB 1523 has been dramatic. Six states and 20 cities have issued travel bans, barring government employees from non-essential travel to Mississippi. The United Kingdom warned gay people against traveling there.
Most importantly, a district court judge issued a 60-page opinion blocking the law from taking effect, and finding it in violation of the Equal Protection Clause of the constitution and, because it singled out three specific religious beliefs for special protection, the Establishment Clause as well.
That’s the decision that was being appealed this summer, when the 5th Circuit panel surprised everyone by saying that the plaintiffs in the case wouldn’t necessarily suffer any direct harm as a result of HB 1523 because they wouldn’t be directly “exposed” to it.
That requirement, lifted from a whole other area of Establishment Clause cases—those dealing with religious monuments or displays—is in conflict with the Supreme Court’s precedent that anyone who is treated as “outsiders, not full members of the political community” may challenge a law that sends “an accompanying message to adherents that they are insiders, favored members of the political community.”
That obviously includes anyone in Mississippi who lacks those three religious beliefs, whether they are gay or straight, Christian or non-Christian. Some beliefs are specially protected, and others are not. That message, itself, counts for standing purposes.
But because the three-judge panel didn’t see it that way, the case has been dismissed. Unless another injunction is quickly put into place, whether as part of an appeal or as part of a new case, HB 1523 will take effect this week.
This is exactly what advocates and researchers (including this one) have said would happen: that religious liberty would turn from a shield into a sword, from a defense against government overreach into a justification to discriminate against third parties; that the right to same-sex marriage would be treated as less than other constitutional rights, eroded away piece by piece; and that the fundamental principle of the rule of law that everyone must obey the same laws would be changed into a pick-and-choose regime, in which some people can exempt themselves from the law if they have the right religious justification.
Oh, these are scare tactics, we were told by the conservatives promoting such laws. Tell that to the gay couple turned away next week in Mississippi by a doctor, government clerk, landlord, or taxi driver. Tell that to the trans person harassed at work or at school. Because those are the people who are scared right now—and they have good reason to be.