By TED CARTER
Employment law specialists can read Mississippi’s religion-focused House Bill 1523 and come away with far different perspectives on its clarity and legal soundness.
“This law is almost indecipherable from my point of view,” says Steve Cupp, a labor attorney in the Gulfport office of Fisher & Phillips.
“One of the problems with this law is it is so vague and hard to know what it means,” says Joshua Block, staff attorney for the national office of the ACLU’s LGBT project. That vagueness, he says, could spell trouble for employers and others who rely on the new law to protect them in exercising their religious beliefs and moral convictions.
Employment law specialist and former U.S. Labor Department attorney Armin Moeller thinks otherwise. “The law, I believe, is relatively clear… well drawn,” says Moeller, a partner in the Jackson office of Balch & Bingham and member of the firm’s Labor & Employment Section.
While Cupp and Block see a cloudy picture and Moeller a clear one, the three agree that the bill Mississippi legislators passed and Gov. Phil Bryant signed is an over-reaction to the U.S. Supreme Court’s legalization last summer of same-sex marriages.
Moeller said he thinks much of the commentary on the “Freedom of Conscience” law “has been” shrill, misleading and inaccurate,” but a legitimate criticism is that Bryant and the Legislature “involved themselves in a solution that looks for a problem.”
That is especially true for Mississippi, a state whose statutes have no “affirmative protections” for LGBT people, the ACLU’s Block says.
The Mississippi law, Block says, cuts away at the few protections afforded homosexual and transgender people, chiefly contractual protections. “What this law takes away is, you couldn’t even sue for breach of contract or torts, Block says. He adds the law says the person breaking a contract or committing a tort can simply say, “You’re gay. We are not going to give you your money back.”
Block and Moeller agree HB 1523 has limited applications but differ on the scope of the limitations.
“It’s hard to know what the limits would be,” says Bock. He says his interpretation is that Mississippi’s pending law allows refusal of goods and services “to anything that can remotely be viewed as recognition of any marriage” other than between a man and a woman. But it takes a further step by targeting transgender individuals, he adds, and leaves openings to refuse service to divorced people or men and women who engage in sex outside of marriage.
“Specifically, the law says for-profit businesses can refuse to sell anything to a customer” that relates to celebration or recognition of a marriage other than a heterosexual one, Block says.
This can include wedding or anniversary gifts or reserving restaurant tables or hotel rooms for a wedding or anniversary celebration, according to Block. It can even include refusing to a sell a child an anniversary card for his “two moms,” he adds.
Exclusions in the Mississippi law also include the work of, say, school guidance counselors or counselors who provide psychological services, Block says.
“Under the statute, the government shall not take any action against a person who refuses to participate in counseling or psychological services based on a conviction that same sex marriage is wrong,” Block says.
But the law also allows that same guidance counselor to refuse to help a young man or woman fill out their college applications if the counselor believes either is having premarital sex, he notes.
Block and Balch & Bingham’s Moeller both expect HB 1523’s major employment law impact will be in the public-sector workplace.
“I think it will have a big effect on government employees,” Block says. “I don’t think it will have a big effect on private employers.”
The potential for impact on public-sector workplace rests with the Mississippi measure’s prohibition on the government penalizing a worker for proselytizing or otherwise exercising a religious or moral conviction, Block says.
The ACLU lawyer cautions, however, that while the state can’t be sued for damages over, say, a circuit court clerk refusing to sign the marriage license of a same-sex couple, “The state can be sued in federal court on constitutional grounds and be forced to pay legal fees.”
Moeller says a circuit court clerk in Mississippi who won’t issue a same-sex marriage license and fails to make other arrangements to legalize the marriage should expect to lose in court. The key, he says, is wording in the Mississippi law that the clerk “must take all necessary steps.” Otherwise, the clerk has not met the law, according to Moeller.
Addressing what he sees as a conflict in the private sector, the Jackson employment lawyer says he sees a built-in conflict if on one hand the state or federal government requires a private business to accommodate people based on their religious beliefs, but on the other hand extols separation of church and state.
“These are paradoxes,” he says. “Some of these issues come down to a balancing test.”
The likelihood of a test emerged Monday with the American Civil Liberties Union and the ACLU of Mississippi Monday suing Mississippi over HB 1523. The lawsuit targets the registrar of vital records, saying ACLU of Mississippi members Nykolas Alford and Stephen Thomas, a gay couple engaged to be married, face discrimination as a result of the law.
Commenting a couple of weeks before the ACLU filed its suit, Moeller predicted test cases would arise. But, he added, “Based on the craftsmanship of this law, I would be very surprised if the law were declared unconstitutional.
“Certainly, some aspects may be overturned, but I don’t think what you read in the papers is going to come to pass.”
Block’s interview came several days before Monday’s filing. In his comments, he hinted at what was ahead: “I think one of the most harmful effects of this law is felt long before someone is actually turned away. It hurts a whole group of people and the government (of Mississippi) is encouraging” this.
The quickest way to resolve things, he said ahead of Monday’s filing, may be to initiate a challenge before July 1.
“One way or another,” Block says, “our goal is to make sure this law’s days are numbered.”
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