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Mississippi Legislature Passes Pro-Discrimination “Religious Liberty” Bill

MississippiPostcard
JM Ashby
Written by JM Ashby

By a margin of 31 to 17, the Mississippi state Senate has passed the Orwellian-named "Protecting Freedom of Conscience From Government Discrimination Act."

The Republican idea of liberty does not apply equally to all people and "government discrimination" is exactly what this bill will enable.

The legislation says that businesses, social workers and public employees cannot be punished for denying services based on the belief that marriage is between a man and a woman or that "sexual relations are properly reserved to such a marriage." It also protects individuals who believe gender is determined at birth.

If I'm reading this right, it appears the state Senate has just voted to enable discrimination against unwed straight couples in addition to gay couples.

Even more concerning is the explicit enabling of discrimination against transgender people who already face an enormous amount of hostility in their daily lives. It's already extremely difficult for transgender people to acquire the same quality of public and privates services as others and this legislation will stack the deck even further against them.

The state House of Representatives has already passed the bill but they will have to vote on it again before it hits Governor Phil Bryant's desk for a signature. Governor Bryant has not said if he will sign the bill or not.

  • muselet

    Five will get you eight Phil Bryant will sign the bill with great fanfare and ceremony.

    –alopecia

  • GrafZeppelin127

    OK, I just skimmed through the legislation itself (read the .pdf here). I’m going to transcribe a couple of key provisions here; note the emphasized words and see if you can follow me.

    SECTION 3.The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction 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.

    OK. Now, let’s skip to Section 4, paragraph 5. Note again the highlighted language:

    (5) The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 3 of this act:

    (a) Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or

    (b) Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.

    The operative provisions almost all start with the same language, viz., “the state government shall not take any discriminatory action against…” What, you may ask, is “discriminatory action”? More to the point, how will this enable the kind of ad hoc discrimination that these “Christian” merchants and their conservative allies want, and that the LGBT community and its liberal allies oppose? What sort of “discriminatory action” could “the state government” possibly take against a photographer, poet, videographer, deejay, wedding planner, printer, publisher, florist, dressmaker, baker, pastry artist, assembly-hall lessor, limo driver or jeweler who refuses to provide “marriage-related goods or services” to Elton John and David Furnish?

    Let’s assume, of course, that commercial discrimination on the basis of sexual orientation (or gender identity) is not against the law in Mississippi. Let’s also assume for the sake of argument that there are local ordinances to that effect in some, but not all, municipalities in the state. The question remains: What sort of “discriminatory action” by “the state government” is this legislation purporting to prohibit?

    Section 5 defines “discriminatory action” thusly; skip to the end if you don’t want to bother reading it all, as what’s important is what’s not included:

    SECTION 5.(1) As used in this act, discriminatory action includes any action taken by the state government to:

    (a) Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from taxation of any person referred to in Section 4 of this act;

    (b) Disallow, deny or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by such person;

    (c) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, or other similar benefit from or to such person;

    (d) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any entitlement or benefit under a state benefit program from or to such person;

    (e) Impose, levy or assess a monetary fine, fee, penalty or injunction;

    (f) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any license, certification, accreditation, custody award or agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to any person; or

    (g) Refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially alter the terms or conditions of employment, or retaliate or take other adverse employment action against a person employed or commissioned by the state government.

    Note first what is not in there: A private civil lawsuit for damages under a local anti-discrimination ordinance. (The statute subsumes all of the state’s political subdivisions under the term “state government,” so state and local action are one and the same for its purposes.) What is also not in there: Pass a law authorizing such lawsuits. The state can’t use a statute to prohibit the passing of other statutes; if the state wants to ban itself from designating LGBT persons as a protected class for commercial-discrimination purposes, it needs a state constitutional amendment. But this statute is written to supersede existing laws and take precedence where they conflict.

    So the question becomes, does Section 5, paragraph (1)(e), nullify any local ordinances authorizing civil lawsuits for commercial discrimination, or more to the point, any damages awarded by juries in such cases, be they actual or statutory damages? Does it provide a complete affirmative defense to such a lawsuit? i.e., does it mandate dismissal by giving the defendant an excuse from the law, or by barring courts from even adjudicating the suit? Does § 5(1)(e) bar the state from enacting a future statewide anti-discrimination law that imposes fines on those who are successfully sued for commercial discrimination against LGBT persons (or anyone else)?

    I think the answer, ultimately, is still no. The bill doesn’t explicitly create a complete defense to a discrimination lawsuit, and again it bars the taking of “discriminatory action” by “the state government.” A private civil lawsuit (viz., the plaintiff’s act of filing the complaint) is not the state government taking a discriminatory action against anyone. A local municipality passing and enforcing an anti-discrimination ordinance is not the state government taking a discriminatory action against anyone. The adjudication of a lawsuit, or the provision of courts of law to adjudicate legal disputes, is not the state government taking a discriminatory action against anyone. An award of damages by a jury is not the state government taking a discriminatory action against anyone.

    This bill also does what Indiana’s bill tried to do with respect to private civil suits:

    SECTION 6. (1) A person may assert a violation of this act as a claim against the state government in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state government, any private person or any other party.

    What that basically means is if a merchant is sued under a local anti-discrimination ordinance, he can implead the state or municipality and seek indemnification based on a claim that the anti-discrimination law itself under which he was sued is a violation of this new law. And that’s where this comes to a dead end, because there is no way in the world that any court would find that the mere existence of an anti-discrimination law that makes sexual orientation a protected class, is itself a “discriminatory action” taken by “the state government” against a person with “religious convictions.”

    Sorry for the long-winded analysis.

    • JMAshby

      Thanks for that. My only question is was the bill poorly crafted because it was crafted by idiots or is this just a reflection of how hard it is to draft this kind of law while avoiding constitutional problems? Your analysis of the law makes it seem as though the obvious intent of the law is far ahead of what it can actually achieve.

      • GrafZeppelin127

        It looks like I missed something: the statute includes in its definition of “state government,” “Any private party or third party suing under or
        enforcing a law, ordinance, rule or regulation of the state or political subdivision of the state.”

        That changes the calculus a bit. It means that a private party, not just the state, can violate a law that prohibits “the state government” from doing things. That sounds very, very wrong. The idea that a private citizen can break the law by filing a lawsuit under a statute or ordinance that specifically authorizes such suits, i.e., by exercising his right to sue and to vindicate his own legal rights in a court of law, is mind-boggling. It makes the plaintiff an agent of the state merely by the act of suing. I’d have to research it, but I strongly doubt that a state can do that.

      • GrafZeppelin127

        Updated, full take here:

        http://www.dailykos.com/stories/2016/4/1/1509243/-Mississippi-s-Religious-Freedom-Law-Comes-Close-But-Fails-to-Legalize-Gay-Wedding-Discrimination

        Bottom line: It still fails, because it doesn’t include the filing of a discrimination lawsuit in its definition of “discriminatory action.”

      • GrafZeppelin127

        I’m really not sure what the answer to your question is; I’m trying to figure that out myself. As noted in the DK article, if states really wanted to give “religious” wedding vendors a Get-Out-of-Gay-Weddings-Free card, they could, but they seem to be either failing spectacularly at doing that or trying very, very hard to carefully avoid it. Maybe it’s because they know that any real attempt to do it — creating an explicit “religious” exemption from commercial-discrimination prohibitions, or affirmatively excluding LGBT persons from being protected — won’t survive a constitutional challenge. The strategy seems to be to give everyone the impression that that’s what’s happening, to embolden merchants and discourage victims from suing. One person even argued to me recently that gay people should just meekly acquiesce to being discriminated against, because that’s what he would do, because’s he’s so “tolerant” and why can’t we all be as tolerant as he is and just “live and let live”?

        So, clearly that’s the expectation. We won’t make it “legal,” per se, for “religious” merchants to discriminate against gay customers, but we’ll make these lawsuits go away by convincing The Gays to just accept it.