Pushing Back on Backlash

By Kenneth J. Bartschi

“In physics, every action has its equal and opposite reaction.  In politics, every action has its predicable overreaction.”

Barber v. Bryant, 2016 WL 3562647, ___ F. Supp. 3d ___ (S.D. Miss. June 30, 2016).

Just over a year ago, the United States Supreme Court recognized in Obergefell v. Hodges, 135 S.C. 2584 (2015), that the fundamental right to marry applied to same-sex couples.  Any landmark civil rights decision provokes a backlash, and Obergefell was no different.  Kim Davis, a clerk from Kentucky, famously refused to issue marriage licenses to same-sex couples and spent a few days in jail for being in contempt of a court order to do her job.  The Chief Justice of the Alabama Supreme Court, Roy Moore, was removed from the bench after interfering with the issuance of licenses to same-sex couples in Alabama after Obergefell.

Legislators have also gotten into the act.  One of the most recent and blatant examples comes from Mississippi.  The Mississippi legislature responded with what is known as House Bill 1523, which passed on April 4, 2016.  The bill provides that the state will not “discriminate” against persons on the basis of three “sincerely held religious beliefs or moral convictions,” namely 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.

Barber, 2016 WL 3562647, at *6.

Before the ink was dry, litigation challenging HB 1523 was drafted.  The plaintiffs included three somewhat overlapping groups:  clergy with differing religious views, LGBT people who are targets of the legislation, and other citizens who do not hold the beliefs the statute protects.  Id. at *1.  They claimed, inter alia, that the legislation violates the Establishment Clause of the First Amendment by elevating certain religious beliefs over others and violated equal protection by targeting specific groups for adverse treatment without a rational basis.

Judge Carlton W. Reeves agreed.  He found that HB 1523 was a direct response to Obergefell, with legislators invoking states-rights arguments to justify the legislation.  Id. at *5.  He also noted the similarity between HB 1523 and the responses to Brown v. Board of Education, 347 U.S. 483 (1954), and the Civil Rights Acts of the 1960s.  Id. nn.6, 8-9.  For example, he quoted a Maryland businessman who testified against the Civil Rights Act stating, “God himself was the greatest segregationist of all time as is evidence when he placed the Caucasians in Europe, the black people in Africa, the yellow people in the Orient and so forth.”  Id. n.8 (citation omitted).  Similarly, the Speaker of the House stated that Obergefell was “in direct conflict with God’s design for marriage as set forth in the Bible.”  Id. at *5.

As for equal protection, Judge Reeves found that the law was motivated by animus against LGBT people and that, while Mississippi has no state-wide protections based on sexual orientation or gender identity, the law would override local ordinances, such as the one in Jackson.  Id. at *19-*21.  The court analogized the statute to Colorado’s Amendment 2, which prevented the passage of gay rights law and which was struck down in Romer v. Evans, 517 U.S. 620 (1996).  Accordingly, the law violated the 14th Amendment.

As for the Establishment Clause, Judge Reeves discussed the history of the clause at length, noting that initially it was intended to prevent disputes between Christians.  Id. at *24.  He further observed that while the clause has been expanded to protect other faiths and nonbelievers, the principle of neutrality remains at the core of the clause.  Id. at *26.  Judge Reeves found that the law violates the Establishment Clause in at least two ways:  by establishing “an official preference for certain religious beliefs over others,” id. at *27, and “because its broad religious exemption comes at the expense of other citizens.”  Id. at *31.  Accordingly, he granted a temporary injunction precluding the law from taking effect.

Judge Reeves’s decision is straight forward, scholarly, and legally sound.  It also prevents a blatantly discriminatory law from taking effect.  The most satisfying aspect, however, is seeing a federal judge call out the law for what it is – an unconstitutional backlash to a Supreme Court ruling that the legislature and governor found displeasing.