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Feds unlikely to ignore Mississippi’s HB1523, lawyers say

Mississippi’s ‘Freedom of Conscience’ law needs time to ripen, they say

U.S. Attorney General Loretta Lynch early this month unloaded on North Carolina’s “transgender bathroom law” with a seldom-seen passion and a lawsuit to boot.

She compared North Carolina’s reaction to the legal and political gains of gays, lesbians and transgender people to the anger that followed President Lincoln’s Emancipation Proclamation and to the fierce and widespread opposition to the Supreme Court’s outlawing of public school segregation in Brown v. Board of Education.

Lynch’s venting against the Tar Heel State’s law left many Mississippians wondering, What about Mississippi and its HB 1523? That law, after all, has a far wider reach and opens the door to discrimination against not only gay, lesbian and transgender people but people who are divorced or engage in any kind of sexual relations outside of marriage.

The answer from the American Civil Liberties Union, or ACLU, is to look for Lynch to act against the law sometime after it goes into effect July 1.

“It hasn’t ripened yet,” said Joshua Block, an attorney with the ACLU’s LBGT Project.

North Carolina’s law went into effect the day after the Legislature passed it and the governor signed it. Moreover, Block noted, the North Carolina and Mississippi’s laws differ significantly in their bathroom-use provisions, chiefly in that the North Carolina law forbids any exceptions to the mandate that people use the public restroom corresponding to their gender at birth, not the gender they either now have or with which they identify.

“It’s a big distinction,” he said. “Mississippi’s law doesn’t require exclusion based on gender identity. It permits it.”

Block said he expects after the seasoning period the Justice Department’s Civil Rights Division will have plenty to say against Mississippi’s religious-focused law that allows circuit court clerks, churches, faith-based organizations and private businesses to refuse service to gay and transgender people and others based on sincerely held religious beliefs or moral convictions. Expect a Justice Department legal challenge to accompany its denunciations of the state law, he said.

The ACLU, however, decided it must not delay its challenge. The national civil rights organization and it Mississippi chapter earlier this month sued the state’s registrar of vital records on behalf of ACLU of Mississippi members Nykolas Alford and Stephen Thomas, a gay couple who are engaged to be married and face discrimination as a result of the new law.

The thrust of the ACLU suit is that the U.S. Supreme Court made clear in its marriage ruling last summer that states must provide the “same legal treatment” to married same-sex couples that they provide to the marriages of different-sex couples. HB 1523 directly contradicts the Supreme Court’s ruling by treating the marriages of same-sex couples differently from the marriages of everyone else, the ACLU said.

The statute singles out the marriages of same-sex couples and provides a special right for governmental officials and for-profit businesses to discriminate against them, the lawsuit says.

“We’re stepping up to fight this sweeping anti-LGBT and unconstitutional law that authorizes discrimination against gay and transgender people,” Block said.

“HB 1523 has no rightful place in Mississippi or in our history books, and we’re hopeful this lawsuit can stop as much of it as possible before it goes into effect. We won’t rest until every last piece of this law is struck down and all LGBT people in Mississippi have equal justice under the law.”

The ACLU filed the case, ACLU of Mississippi v. Judy Moulder, in the U.S. District Court for the Southern District of Mississippi in Jackson. The ACLU and attorney Oliver Diaz, a former Mississippi Supreme Court justice, are co-counsel.

One Jackson lawyer who specializes in commercial and employment litigation said Mississippi is likely to be on the receiving end of a Justice Department lawsuit just as North Carolina has been

Will Manuel, partner in the Jackson office of Bradley Arant Boult Cummings, said the federal government is very focused on gender identity right now and is likely to act against Mississippi just as it did North Carolina. Since the “religious beliefs” provision would pertain to public institutions, including schools, “We may get a similar enforcement letter,” Manuel said.

“if that happens, the constitutionality of Mississippi’s HB1523 will be difficult to defend, he predicted. “I disagree that it is on sound footing,” he said, addressing assurances from the governor and state legislators that the law is constitutionally sound.

“The very beginning of the law states that it is protecting ‘sincerely held religious beliefs or moral convictions’ and then defines three principles that fit under that description,” he said. “By only endorsing certain religious thought, I believe it is in violation of the Establishment Clause of the First Amendment which prohibits government from establishing or only protecting one religion. That should be a fairly clear cut constitutional challenge. The vagueness and ambiguousness could also be secondary challenges.”

Mississippi should expect to see lawsuits whether the suits originate with the Justice Department or other sources, Manuel said.

“I do think that there will be challenges after the July 1 enactment. I’m not sure how many actual denials of services will be seen, but I do expect some employment law battles,” he said. “The fact that the law protects employment actions against people who have sex outside of marriage (whether gay or straight), that alone could open up a good bit of litigation.”

Mississippi’s Freedom of Conscience law lacks a severability clause that specifies striking one part of the law would allow other parts to stand law. But even with one, striking the law’s major provision – the “religious thought” section — would render “the rest of the law essentially useless,” Manuel said.

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