Jackson Free Press

JACKSON — The controversial House Bill 1523, with its long list of protections for people who discriminate against LGBT people and others, will become law in July unless one of two things happen: lawmakers repeal it, or courts strike it down.

Some lawmakers, led by Rep. Jay Hughes, D-Oxford, are trying to repeal the "Protecting Freedom of Conscience from Government Discrimination Act" by offering a resolution to suspend the rules so they can draft a bill to repeal it.

"Churches already have the right to dictate their own activities, which we would not want to interfere with, but this bill is about the economic fallout," Hughes said at the Capitol Tuesday morning about his "Mississippi Economic and Tourism Recovery Act" resolution to repeal the anti-LGBT law.

Meantime, constitutional law professors warn that House Bill 1523 might not be constitutional on its face.

In a memo published last week, seven law professors said parts of the bill violated the Establishment Clause of the U.S. Constitution, which says that Congress "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

Other parts of the bill, scholars say, only reiterate what the "free exercise of religion" part of the Establishment Clause that religious-freedom bills, like Mississippi's 2014 Religious Freedom Restoration Act, reiterated.

After the Hobby Lobby U.S. Supreme Court case ruled that a for-profit corporation could hold a religious belief, several states passed their own versions of religious-freedom bills to reiterate the case's outcomes.

The parts of House Bill 1523 that address and "protect" religious organizations, pastors or businesses are "redundant," Mississippi College law professor Matt Steffey says, because religious organizations were always protected the "free exercise" clause in the First Amendment and the Hobby Lobby U.S. Supreme Court ruling would protect businesses.

"If the florist doesn't want to do your wedding, there's nothing in Mississippi that says they have to, so there's no burden to eliminate," Steffey told the Jackson Free Press.

The other half of the bill, however, causes Steffey and other legal experts serious pause.

The 'One Man and One Woman' Problem

University of Mississippi law professor Michele Alexandre, whose name was listed on the legal memo, said that the bill violates the Establishment Clause of the First Amendment because the government cannot show a preference to a particular religion. The parts of House Bill 1523 that define a religious belief as marriage between "one man and one woman" and say that sexual relations should be reserved for that marriage largely resonate with the Christian tradition, Alexandre said.

"It's a belief in some religions—but not all, and that could be read as the government having a preference for one religion and not protecting others," she said.

This is the big difference Steffey sees between House Bill 1523 and previous religious-freedom legislation.

"The Religious Freedom Restoration Act provides protection for all religious beliefs of every stripe," he said.

But, Steffey says, House Bill 1523 does not.

"(Government) can't pick and choose amongst these religious beliefs; you can't say these religious beliefs we'll protect but not the opposite belief," he said.

The memo also states that the Establishment Clause "restricts legislative accommodations for religious beliefs where such accommodations would cause a meaningful harm to other private citizens."

Not everyone believes the law is unconstitutional, however, including the state's highest-ranking attorney.

Attorney General Jim Hood, speaking to reporters on Monday, said that the bill was not unconstitutional on its face but that the question of its constitutionality would need to be addressed based on the facts of how it's applied.

"I don't know for sure whether it would be considered unconstitutional on its face, someone will have to use that law, and that would be considered unconstitutional as applied," Hood said.

Hood said he was concerned about misinformation being spread surrounding the bill and reiterated that there's no court that can force a pastor in a church to marry a couple or a religious organization to do anything.

"There's a lot of fear about what your rights are and what they aren't," the attorney general said.

Hood said if a lawsuit is filed against the state, his office would have to evaluate it on the facts presented. "We'll just evaluate it on a case-by-case basis, if it's crystal clear it violates the most recent decision by the U.S. Supreme Court, I can't ethically go in there and require my lawyers to defend it," he said.

"It depends on if it's facts that show some type of clear parallel to that Supreme Court decision this past summer."

How a Lawsuit Would Work

Unless the law is repealed before the Legislature finishes the session, House Bill 1523 will become state law on July 1. A person or group filing a lawsuit against the state because of the law could file in either state or federal court.

Steffey said it is likely that an organization would file a lawsuit in federal court against the State of Mississippi asking for a temporary restraining order, which would stop the law during the lawsuit.

If the federal court ruled in the plaintiff's favor, the temporary restraining order would be turned into a permanent injunction—blocking the law and deeming it unconstitutional. Mississippi would have to pay for the lawyers' fees incurred during the case. Steffey said he would be surprised to see Hood do much to defend the law because defending it would mean a bigger payment to whoever challenges it.

"The federal civil-rights statute that you would bring a suit under provides that a successful vendor gets attorneys' fees," Steffey said. "There's no doubt in my mind that whoever challenges this law will succeed."

On the federal scale of law, Alexandre said states attempting to pass legislation like House Bill 1523 is adding more to the "history of discrimination" needed to prove and possibly allow the LGBT community to become a "protected class" under the Equal Protection Clause, like race, gender and origin.

The Obergefell Supreme Court decision legalizing same-sex marriage was very narrow and did not address the question of "protected class," Alexandre said, but added that the new wave of legislation might force the higher courts to address such questions.

"These (state) legislatures starting to enact something like 32 laws, they are making the case and building the record that LGBT community members are suffering from a history of discrimination," Alexandre said.

For more on House Bill 1523 visit jfp.ms/lgbt. Email reporter Arielle Dreher at [email protected].