Just minutes before Mississippi’s anti-LGBT H.B. 1523 was scheduled to go into effect on July 1, U.S. District Judge Carlton W. Reeves filed a 60-page opinion explaining why he was granting a preliminary injunction to the plaintiffs in two cases challenging the measure, which he consolidated for this purpose under the name of Barber v. Bryant.
According to Judge Reeves, H.B. 1523 violates both the 1st Amendment’s Establishment of Religion Clause and the 14th Amendment’s Equal Protection Clause. His lengthy, scholarly opinion expands upon some of the points he made just days earlier when he granted a preliminary injunction in a separate lawsuit, blocking implementation of one provision of H.B. 1523 that allowed local officials responsible for issuing marriage licenses to “recuse” themselves from issuing licenses to same-sex couples based on their “sincere” religious beliefs.
Unlike the earlier ruling, the June 30 opinion treats H.B. 1523 as broadly unconstitutional on its face. Although Mississippi Governor Phil Bryant, the lead defendant in all three lawsuits, announced that the state would immediately appeal to the U.S. Court of Appeals for the 5th Circuit, Reeves’ scholarly opinion seemed likely to withstand judicial review. Attorney General Jim Hood, Mississippi’s only Democratic statewide elected official and also a named defendant, suggested that he might not be joining in such an appeal, voicing agreement with Reeves’ decision and suggesting that the legislature had “duped” the public by passing an unnecessary bill. He pointed out that the 1st Amendment already protected clergy from any adverse consequences of refusing to perform same-sex marriages, and that the state’s previously-enacted Religious Freedom Restoration Act already provides substantial protection for the free exercise rights of Mississippians.
At the heart of H.B. 1523 is its Section 2, which spells out three “sincerely held religious beliefs or moral convictions” that are entitled, as found by Judge Reeves, to “special legal protection.” These are “(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 birth.” According to the statute, any person or entity that holds one or more of these beliefs is entitled to be free from any sanction by the government for acting upon them by, for example, denying restroom access to a transgender person or refusing to provide goods or services to a same-sex couple for their wedding.
Of course, the state may not override federal rights and protections, and the plaintiffs argue in these cases that by privileging people whose religious beliefs contradict the federal constitutional and statutory rights of LGBT people, the state of Mississippi has violated its obligation under the 1st Amendment to preserve strict neutrality concerning religion and its obligation under the 14th amendment to afford “equal protection of the law” to LGBT people.
Reeves, who ruled in 2014 that Mississippi’s ban on same-sex marriage was unconstitutional, agreed with the plaintiffs as to all of their arguments. For purposes of granting a preliminary injunction, he did not have to reach an ultimate decision on the merits of the plaintiffs’ claims. It would suffice to show that they are “likely” to prevail on the merits. But anybody reading Reeves’ strongly-worded opinion would have little doubt about his view of the merits.
In an introductory portion of the opinion, he spells out his conclusions succinctly: “The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and adherents that they are insiders, favored members of the political community,’” quoting from a Supreme Court decision from 2000, Santa Fe Independent School District v. Doe, 530 U.S. 290. “And the Equal Protection Clause is violated by H.B. 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”
Much of the opinion was devoted to rejecting the state’s arguments that the plaintiffs did not have standing to bring the lawsuits, that the defendants were not liable to suit on these claims, and that injunctive relief was unnecessary because nobody had been injured by the law. Reeves cut through these arguments with ease. A major Supreme Court precedent backing up his decision on these points is Romer v. Evans, the 1996 case in which LGBT rights groups won a preliminary injunction against Colorado government officials to prevent Amendment 2 from going into effect. Amendment 2 was a ballot initiative passed by Colorado voters in 1992 that prevented the state from providing any protection against discrimination for gay people. The state courts found that the LGBT rights groups could challenge its constitutionality, and it never did go into effect, because the Supreme Court ultimately found that it violated the Equal Protection Clause.
Judge Reeves ended his introductory section with a quote from the Romer v. Evans opinion: “It is not within our constitutional tradition to enact laws of this sort.”
In his earlier opinion, dealing with the clerk “recusal” provision, Reeves had alluded to Mississippi’s resistance to the Supreme Court’s racial integration rulings from the 1950s and 1960s, and he did so at greater length in this opinion, focusing on how H.B. 1523 was specifically intended by the legislature as a response to the Supreme Court’s ruling last year in Obergefell v. Hodges, holding that same-sex couples have a constitutional right to marry. Mississippi legislators made clear during the consideration of this bill that its intention was to allow government officials and private businesses to discriminate against LGBT people without suffering any adverse consequences, just as the state had earlier sought to empower white citizens of Mississippi to preserve their segregated way of life despite the Supreme Court’s rejection of race discrimination under the 14th Amendment.
Reeves quoted comments by Governor Bryant criticizing Obergefell as having “usurped” the state’s “right to self-governance” and mandating the state to comply with “federal marriage standards – standards that are out of step with the wishes of many in the United States and that are certainly out of step with the majority of Mississippians.” In a footnote, Reeves observed, “The Governor’s remarks sounded familiar. In the mid-1950s, Governor J.P. Coleman said that Brown v. Board of Education ‘represents an unwarranted invasion of the rights and powers of the states.’” Furthermore, “In 1962, before a joint session of the Mississippi Legislature – and to a ‘hero’s reception’ – Governor Ross Barnett was lauded for invoking states’ rights during the battle to integrate the University of Mississippi.” Reeves also noted how the racial segregationists in the earlier period had invoked religious beliefs as a basis for failing to comply with the Supreme Court’s decisions.
Turning to the merits of the case, Reeves addressed the state’s argument that the purpose of the statute was to “address the denigration and disfavor religious persons felt in the wake of Obergefell,” and the legislative sponsors presented it as such, as reflected in the bill’s title: “Protecting Freedom of Conscience from Government Discrimination Act.” Reeves pointed out what was really going on. “The title, text, and history of H.B. 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell,” he wrote. “The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status.” (The quotation is from Romer v. Evans.) “As in Romer, Windsor, and Obergefell,” Reeves continued, “this ‘status-based enactment’ deprived LGBT citizens of equal treatment and equal dignity under the law.”
Because state law in Mississippi does not expressly forbid discrimination because of sexual orientation or gender identity, the state tried to claim that in fact the bill did not have the effect of imposing any new harm. However, recently the city of Jackson passed an ordinance forbidding such discrimination, and the University of Southern Mississippi also has a non-discrimination policy in place. “H.B. 1523 would have a chilling effect on Jacksonians and members of the USM community who seek the protection of their anti-discrimination policies,” wrote Reeves. “If H.B. 1523 goes into effect, neither the City of Jackson nor USM could discipline or take adverse action against anyone who violated their policies on the basis of a ‘Section 2’ belief.”
The court held that because of the Establishment Clause part of the case, H.B. 1523 was subject to strict scrutiny judicial review, and also pointed out that under Romer v. Evans, anti-LGBT discrimination by the state is unconstitutional unless there is some rational justification for it. He rejected the state’s argument that it had a compelling interest to confer special rights upon religious objectors. “Under the guise of providing additional protection for religious exercise,” he wrote, H.B. 1523 “creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity. It is not rationally related to a legitimate end.” Indeed, he asserted, “The deprivation of equal protection of the laws is H.B. 1523’s very essence.”
Reeves easily found that the standard for ordering preliminary relief had been met. Not only was it likely that H.B. 1523 would be found unconstitutional in an ultimate ruling in the case, but it was clear that it imposed irreparable harm on LGBT citizens, that a balancing of harms favored the plaintiffs over the defendants, and that the public interest would be served by enjoining operation of H.B. 1523 while the lawsuits continue. “The State argues that the public interest is served by enforcing its democratically adopted laws,” he wrote. “The government certainly has a powerful interest in enforcing its laws. That interest, though, yields when a particular law violates the Constitution. In such situations the public interest is not disserved by an injunction preventing its implementation.”
Reeves concluded, “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But H.B. 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”