Anna Wolfe

The Clarion-Ledger

Other states follow suit: See sampling of laws at end of story.

Almost a year after becoming law in Mississippi, the religious objection bill aimed at the gay community will be the focus of oral arguments in a federal appeals court Monday.

The American Civil Liberties Union of Mississippi — which describes the law, House Bill 1523, as one of many enacted recently across the country that discriminates against LGBT people — looks at HB 1523 as one of the worst and the furthest along within the legal process so far.

A three-judge panel of the 5th U.S. Circuit Court of Appeals will hear arguments in Lubbock, Texas, following Gov. Phil Bryant's appeal of a federal judge's decision declaring HB 1523 unconstitutional. In his June order, U.S. District Judge Carlton Reeves said HB 1523 does not, despite its name, honor the nation's tradition of religious freedom. The law has never been enforced.

Bryant, who had to use private attorneys to appeal the decision after Attorney General Jim Hood would not appeal it, stands by HB 1523.

"This is a good law that was democratically enacted and is perfectly constitutional. The district court's decision is ripe for reversal. The people of Mississippi have the right to ensure that all of our citizens are free to peacefully live and work without fear of being punished for their sincerely held beliefs. And as governor, it is my duty to uphold my oath to defend the people of Mississippi and the laws passed by those entrusted to represent them," he said in a statement Wednesday.

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Attorneys from Alliance Defending Freedom, the Christian nonprofit that wrote much of HB 1523, will argue on behalf of the state.

As the ACLU stresses, Mississippi is not alone. House Bill 1523 is one bill in a wave of similar legislation proposed or adopted across the country in the last few years. Opponents argue these measures would legalize discrimination against the LGBT community.

When Bryant signed HB 1523, formally the Protecting Freedom of Conscience from Government Discrimination Act, on April 5, the law joined a national discussion alongside North Carolina's "bathroom bill," HB 2, a portion of which deals with prohibiting transgender people from using the public restroom coinciding with their gender identity. Another provision prevented local governments from enacting anti-discrimination policies that protect classifications not protected by state law.

The ACLU challenged HB 2 on behalf of four LGBT North Carolinians. The district court ruled that the University of North Carolina be enjoined from enforcing the public restroom portion of HB 2. Arguments in this case are set to be held before the 4th U.S. Circuit Court of Appeals in May. Efforts to repeal the bill in the North Carolina Legislature Thursday resulted in a "compromise" bill opponents still label discriminatory.

In 2017, lawmakers across 30 states introduced 121 anti-LGBTQ bills, according to Rob Hill, state director of the Human Rights Campaign.

These legal questions are still fresh for the courts, and even a slight tweak in the law's wording can alter the outcome of any particular case, said constitutional law expert and Mississippi College of Law professor Matt Steffey.

Mississippi's bill includes protections for three religious beliefs: Marriage should be recognized as a union between one man and one woman; sexual relations are reserved for those marriages; and a person's gender refers to his or her biological sex assigned at birth.

"Ours was among the most obviously unconstitutional," Steffey said. "In other words, I got the sense that some of those laws had been better drafted with the legal challenges in mind than ours was."

Kevin Theriot, one of the Alliance Defending Freedom attorneys representing Mississippi, argues HB 1523 is just another religious protection.

"This isn't some sort of weird outlying law. It's very consistent with laws that this country has a history of enacting, like the laws accommodating Native Americans who want to ingest peyote as part of their religious ceremonies," Theriot said.

But, Hill said, "The impact it could have is far-reaching, not just with the LGBTQ population, but single mothers. There's any number of ways this bill could be construed and used as a license to discriminate against others."

The 5th Circuit's ruling on HB 1523 only legally binds Texas and Louisiana — both of which are also in the 5th Circuit — and would only pertain to an identical law proposed in those states. The Texas Legislature proposed and is still mulling SB 6 this year, which would require schools to adopt policies requiring transgender students to use the bathroom that corresponds to their biological sex, not their gender identity.

Rob McDuff, the local civil rights attorney representing several plaintiffs against HB 1523, said because Mississippi's bill is so much "more extreme" than other states', the outcome of its legal challenge is unlikely to dictate the fate of other LGBT-targeting laws.

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But some believe the precedent could have wide ranging impact, if not legally.

If the 5th Circuit were to uphold HB 1523, Steffey said, legislators could be emboldened. Those in Texas and Louisiana, with generally conservative leaderships, could be prompted to pass this kind of legislation.

And similar bills passed in other states could be seen as safer from future litigation.

In 2015, Arkansas began prohibiting local bodies from creating anti-discrimination policies for characteristics not recognized by state law, and Indiana enacted a law allowing lawsuits against public policies, like nondiscrimination laws, that substantially burdened someone's religious beliefs. Michigan enacted a law allowing adoption and foster care agencies to refuse to provide services that would conflict with their religious beliefs.

In 2016, Florida enacted a law that allows churches to refuse to perform marriages to which they have religious objections, and Kansas began requiring public colleges and universities to give benefits to student organizations, even if the organization discriminates based on its religious beliefs. Tennessee enacted a law to allow counselors or therapists with religious objections to refuse services that conflict with their beliefs.

South Dakota was the first state to enact legislation of this kind in 2017. Its new law, signed by Gov. Dennis Daugaard on March 10, prohibits child-placement agencies from being required to operate in a way that violates their sincerely held religiously beliefs, like allowing LGBT couples to adopt. Texas, Oklahoma and Alabama have pursued similar measures this session.

Theriot argues that if the 5th Circuit upholds HB 1523, it will only be enforcing existing law, but if it is struck down, "obviously that would go against years, decades of precedent."

Erik Fleming, ACLU of Mississippi director of policy, said the benefits of the 5th Circuit upholding Judge Reeves' decision goes beyond a legally binding decision.

"I would believe that any judicial action that strikes down a discriminatory law would provide a road map for other lawyers … to be able to challenge that kind of legislation," Fleming said. "Most importantly, it would discourage lawmakers on either side of the aisle to even make those efforts to put out anything discriminatory.”

In Mississippi, anti-LGBT legislation received no traction in 2017 following Reeves' ruling.

Steffey said he does not expect the U.S. Supreme Court to take up this kind of legal challenge at this time.

OTHER STATES FOLLOW SUIT

Mississippi is not alone. HB 1523 is one bill in a wave of similar legislation proposed or adopted across the country in the last few years. Opponents argue these measures would legalize discrimination against the LGBT community.

1. Arkansas - SB 975

Allows someone to sue over a nondiscrimination law that burdens his religious beliefs; SB 202 bars local laws from creating protected classes.

2. Florida - HB 43/SB 110

Allows clergy and churches to refuse to perform marriages for same-sex couples.

3. Indiana - SB 101

Allows someone to sue over a nondiscrimination law that burdens his religious beliefs.

4. Kansas - SB 175

Requires public colleges and universities to give access to funding and use of facilities to student groups even if they discriminate based on religious beliefs.

5. North Carolina - SB 2

Exempts state officials from having to issue marriage licenses to same-sex couples; HB 2, which was amended Thursday, requires individuals to use the bathrooms corresponding to the sex listed on their birth certificates.

6. Michigan - HB 4188, HB 4189 and HB 4190

Allows adoption and foster care agencies to refuse to provide services to same-sex couples.

7. Mississippi - HB 1523

(Became law April 5, 2016): Allows government officials and businesses to deny services to gay couples wishing to get married.

8. Tennessee - HB 1840/SB 1556

(Became law April 27, 2016): Allows those providing professional services to deny those services based on religious beliefs.

9. Utah - SB 297

Exempts state officials from having to issue marriage licenses to same-sex couples.

Contact Anna Wolfe at 601-961-7326 or awolfe@gannett.com . Follow her on Twitter.