STARKVILLE – Anyone who expects the public furor over Mississippi’s House Bill 1523 to subside or who believe that people on either side of the debate will soften their positions simply haven’t been paying attention.
The formal name of HB 1523 is the “Protecting Freedom of Conscience from Government Discrimination Act” and supporters claim it was written and adopted in great measure to protect the rights of people with a “sincerely held religious belief” or a “moral conviction” against same-sex marriage – including circuit clerks charged with issuing marriage licenses – from punishment for denying services to same-sex couples.
Opponents say HB 1523 codifies a path to abject discrimination in Mississippi against people engaging in what is clearly constitutionally protected activities under the cloak of religion – and that adoption of such laws at the state level have no impact whatsoever on the federal laws that are in conflict with them.
There is also no small legal question about the how the state defines “sincerely held religious belief” and “moral conviction” in this context. And how does the new law contemplate the rights of people outside the Judeo-Christian faith to their “sincerely held religious belief” or “moral conviction” that may well run far afield of the vast majority of Mississippians?
With all due respect to people of religious faith (“sincerely held” or otherwise) and the atheists and agnostics alike, the constitutional ship has sailed in the United States over the issue of same-sex marriage.
From a purely legal standpoint, it’s no longer a question of whether you approve or disapprove or whether those activities and choices in any way offend your religious beliefs (or the lack of them) or whether they match your political/philosophical beliefs on the same topics.
On the subject of same-sex marriage, the Supreme Court in a 5-4 decision in the 2015 landmark Obergefell v. Hodges case declared that same-sex couples have a constitutional right to marry that is guaranteed by both the Due Process Clause and Equal Protection Clause of the 14th Amendment.
That decision made same-sex marriage legal in Mississippi – or at least impeded Mississippi from violating the federal constitutional right to same-sex marriage by denying marriage licenses to same-sex couples. About a week later, Mississippi Attorney General Jim Hood ordered circuit clerks in the state to issue marriage licenses to same-sex couples.
A few days later, U.S. District Judge Carlton Reeves ordered an end to enforcement of the state’s same-sex marriage ban. In that sequence of events, HB 1523 was hatched.
“Mississippi’s laws prohibiting same-sex marriage are now officially declared unconstitutional and unenforceable by the federal court,” Attorney General Jim Hood said at that time. “This ruling makes clear that marriage licenses should be issued to same-sex couples.”
Again, from a purely constitutional standpoint, the same-sex marriage ship has sailed under federal law and federal law – we are told – supersedes state law in this instance. Clearly, House Bill 1523 seeks to work around the federal Obergefell decision at the state level.
Just as clearly, LGBT rights at the federal level are perhaps less well defined by the Supreme Court than simple same-sex marriage rights – which explains the high level of discomfort generated nationally by HB 1523 and similar laws either passed or attempted in other states.
But what is evident is the fact that federal judicial review looms large for Mississippi’s HB 1523. When the shouting and the protests wane, federal appellate judges will be charged with weighing the Obergefell decision and the Constitution against Mississippi’s new law.
Are we then to believe that those appellate judges are going to rule that the choice of a public official over whether or not to obey federal law rests pretty much solely with whether or not that official agrees (from religious and moral standpoints) with the law? Forget public officials, what about the rest of us average, workaday citizens confronted with income tax laws, speed limits, and narcotic drug statutes?
Do we really only have to obey the laws we agree with? News to me, gentle readers, news to me.
Sid Salter is a syndicated columnist. Contact him sidsalter@sidsalter.com