If the South is a test kitchen for anti-LGBT groups to cook up discriminatory legislation before serving it elsewhere, then the Supreme Court’s Monday decision to deny certification to the legal challenge against Mississippi’s HB 1523 could prove poisonous.
Or, in other words, what happens in Mississippi might not stay in Mississippi.
“I think to many people HB 1523 was kind of a bellwether of what’s going to be allowed in other states or on the federal level,” Beth Orlansky, advocacy director with the Mississippi Center for Justice, told The Daily Beast.
HB 1523 specifically enumerates three religious beliefs—that marriage is “the union of one man and one woman,” that sex should be “reserved” to heterosexual marriage, and that gender cannot be changed—and gives broad permission to deny service to LGBT people based on those beliefs. The law, first passed in April 2016, has been in effect since October 2017, when an injunction against the bill was lifted.
After a lengthy judicial battle, the Supreme Court on Monday declined to hear an appeal against the law from LGBT advocates, determining that the plaintiffs did not have proper standing to challenge the law. The Supreme Court’s decision has no bearing on the merits of the anti-LGBT law itself; rather, the Court decided that the plaintiffs could not prove they had experienced harm as a result of its passage.
But that decision means that LGBT advocates like Orlansky—who served as one of the attorneys in the Mississippi Center for Justice’s lawsuit against HB 1523– will have to play an anxious waiting game: Now, in order to prove that the most extreme anti-LGBT law in the country is indeed harmful, Orlansky will have to wait for an LGBT person to report being discriminated against on the basis of HB 1523.
“I really hope nobody gets hurt by the law but if nobody gets hurt than we can’t overturn it,” she told The Daily Beast, noting that the plaintiffs in her case felt “preyed upon just by the fact that it was on the books,” even if the Supreme Court didn’t agree.
Orlansky’s position is still that “the law itself is discriminatory enough to confer standing on people who are targeted by the law.”
Reverend Brandiilyne Mangun-Dear of the Joshua Generation Metropolitan Community Church—who, along with her wife and congregation, was one of the plaintiffs in the Mississippi Center for Justice’s lawsuit—feels harmed by the mere existence of a law that specifically defends anti-LGBT beliefs. She told The Daily Beast that the Supreme Court’s stance “seems a little backwards” and that it initially made her “angry.”
“I couldn’t really understand why someone has to be harmed by this law when the law itself is written to cause harm,” she said. Rev. Mangun-Dear calls HB 1523 “the antithesis of what Jesus Christ would do.”
“He never rejected anyone,” the pastor told The Daily Beast. “He never tossed anyone to the side. He never refused to serve anyone. He even washed the feet of Judas who later would betray him to the cross.”
But in Mississippi, it might take more than a denial of service to escalate a new case to the Supreme Court. As Orlansky noted, because Mississippi already doesn’t have sexual orientation or gender identity in its non-discrimination statutes anyway, it may take a particularly stark federal violation—like a Kim Davis-esque denial of a marriage license—to bring forward a strong enough case.
So, once again, LGBT legal advocates are in the almost paradoxical position of needing something awful to happen in order to prevent even more awful things from happening.
“Let me just say that we would get the law off the books if we had the proper case to bring,” Orlansky said. I’m not convinced that people are actually going to use the law in such a way that will lead to a lawsuit, which is good—I don’t want people to be discriminated against—but I would also rather have the law gone.”
In the meantime, the Supreme Court’s decision could send a message to anti-LGBT groups that they can go ahead and get laws similar to HB 1523 passed elsewhere.
“People will see this denial of cert[ification] as permission to go forward, probably,” Orlansky predicted.
On the national scale, anti-LGBT groups currently have strong allies in the White House—if 2017’s string of defeats for LGBT advocates was any proof—which may only increase the odds of HB 1523-style language spreading beyond the South.
“We certainly see elements of laws that have passed in the South being picked up and proposed in federal legislation or informing executive orders or Department of Justice memos,” Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality—another LGBT organization that sued over HB 1523–told The Daily Beast. “So while this is a Mississippi story, it’s also a national story when you look, say, at the pending legislation around so-called ‘religious exemption’ or ‘religious freedom’ bills in Congress.”
President Trump signed a relatively narrow “religious liberty” executive order in August of last year. During the 2016 presidential campaign, then-candidate Trump promised to sign the First Amendment Defense Act—essentially a supersized federal version of HB 1523–if Congress passed it, although that particular threat has not materialized so far.
But LGBT advocates in the South warn that their peers in other states should pay close attention to what’s happening in Mississippi if they don’t want to be surprised by the next big attack on their rights.
“It was a very stark contrast to see the level of national, even global attention that was directed toward the fight in North Carolina versus [the fight against] HB 1523 in Mississippi,” Beach-Ferrara told The Daily Beast. “Honestly, many people had never even heard of it until it went into effect last October.”
The Supreme Court’s denial of certification has put HB 1523 in the national spotlight once again but it may only be a matter of time until that attention fades away—until the worst anti-LGBT law in the country gets written off as only affecting Mississippi anyway.
“We’re not only Mississippians but we’re LGBT Mississippians so it’s easy to toss us to the side,” Rev. Mangun-Dear told The Daily Beast. “Mississippi has a past that haunts us and we just can’t seem to get rid of the ghost.”
That’s why LGBT legal advocates are eager to get more legal challenges to HB 1523 in the pipeline as soon as possible. The Campaign for Southern Equality has set up a hotline for LGBT Mississippians to report instances of discrimination wherever they encounter them.
“Our concern is that it’s happening in Mississippi but folks may not be aware of how to report it or may not feel safe doing so because of the circumstances of the incident,” Beach-Ferrara explained to The Daily Beast. “That’s what’s so insidious about this law is how far-reaching it is potentially into every aspect of people’s lives, from the doctor’s office to school settings to public accommodations and business settings.”
Until that solid court case comes, though, LGBT Mississippians will have to prove that they are made out of “hard-headed Southerner stuff,” as Rev. Mangun-Dear puts it.
“I was angry yesterday and today, I’m determined to keep fighting,” she told The Daily Beast. “I’m not ready to give up.”