by Harvey L. Fiser, Associate Professor Business Law, Millsaps College
As the celebrations of gay pride month came to a close and LGBT Americans herald the major advances in the court of public opinion and honor the anniversaries of the Windsor and Obergefell decisions, Mississippians were facing the prospect of waking up on July 1 with another attack on LGBT rights, HB 1523 – arguably the most comprehensive and blatantly discriminatory “religious freedom” bill any state has yet to pass. Rather than following the advice of Indiana University Maurer School of Law Professor Steve Sanders and taking time to celebrate the role these pioneering cases had in elevating “gays and lesbians to a place of constitutional dignity,” Mississippians waited for news on whether a federal court would stop this newest state sanctioned discrimination.
In response to the Supreme Court’s rulings finding that gays and lesbians have equal dignity in marriage, Mississippi’s legislature, Lieutenant Governor and Governor went further than any state has gone before – putting into law their own personal religious doctrines. On April 5, 2016, House Bill 1523 was signed into law over the protest of many companies, civil rights organizations and a major public outcry. The bill purports to protect numerous public and private actions based wholly or partially on three, and only three, religious beliefs – that “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
This bill has been described as “narrower and broader” than any religious freedom act to date. Narrower in that it names specific religious beliefs that are protected and broader because it applies to both religious and secular businesses and organizations. According to testimony by Douglas NeJaime, professor of law at UCLA and faculty director of the Williams Institute, after Windsor, in the 2015 legislative session, there were more than 50 LGBT related religious accommodation bills introduced. In 2016, after Obergefell, there were over 100 introduced – HB 1523 being one of two enacted that year. According to Professor NeJaime, HB 1523 was based on model legislation drafted by the Alliance Defending Freedom, an organization “of the Christian right with the express purpose of seeing Christian principles enacted into law” and was passed in direct response to Obergefell.