Mississippi Law on Serving Gays Proves Divisive
Mike McPhate, New York Times, April 14, 2016
To hear some supporters tell it, a measure signed into law last week in Mississippi does little more than let bakers reject wedding cake orders from same-sex couples.
But its provisions allowing people with religious objections to deny certain services to gay couples have ignited fierce opposition, with some critics portraying them as a free pass to open-ended discrimination.
The Mississippi measure, the latest in a wave of similar legislative efforts across the country, has turned a harsh national spotlight on the state, as gay rights organizations, several major companies and at least five other states have publicly denounced it.
Gov. Phil Bryant has strongly defended the law, known officially as the Protecting Freedom of Conscience from Government Discrimination Act, by arguing that it was drafted in the “most targeted manner possible.”
“This does not create any action against any class or group of people,” he said during a talk radio show on April 5, the day he signed the law. “All this bill does is stop the government from interfering with people of faith who are exercising their religious beliefs.”
Critics of the bill, he added, “give the worst possible examples that may happen.”
An examination of the bill by Columbia Law School, however, found that it created a number of specific potential harms to gay, transgender and other people in schools, workplaces and government settings.
Among the scenarios described in the report, which was signed by 10 law professors:
• A school mental health counselor could refuse to work with a transgender student
• A government agency manager could require female employees to wear skirts or dresses
• A religious university could fire a single mother working in the cafeteria
In each case, the acting group or individual would only need to profess adherence to any of three religious beliefs specified in the bill: that marriage is between a man and a woman, that sex is reserved for heterosexual marriage, or that gender is determined at birth as male or female.
Messages left with Mr. Bryant and the main sponsor of the bill, House Speaker Philip Gunn, were not returned.
“I think it’s one of the most aggressive bills that we have seen that would target L.G.B.T people,” said Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union. “This explicit targeting of specific populations, many of whom are already fairly marginalized and face discrimination in everyday life, poses huge problems.”
Much of the law focuses on same-sex marriage. It spells out more than a dozen of the services that could be denied by individuals or businesses on the basis of religious objections, among them poetry, printing, flowers and limousine rentals.
Wedding ceremonies are what this is really all about, said Tim Wildmon, president of the American Family Association, which has supported the legislation.
“This is specifically tailored to keep the state government from going after small business owners who may be Christian or Jew or whatever,” he said. “They have a religious objection to being forced to participate in a gay wedding ceremony.”
But the law goes much further than that, opponents say. One the most grievous passages of the legislation, they say, grants government clerks the right to refuse to issue marriage licenses to same-sex couples.
“Here we’re talking about public employees, who can potentially use religion as a means of denying somebody else their civil rights,” said Rob Hill, the state director of the Human Rights Campaign in Mississippi.
Legal experts have noted that such refusals would additionally pose a stigmatizing effect on same-sex couples that is forbidden by the Constitution. Ms. Rho, of the A.C.L.U., said assertions by some politicians that the law would cause no harmful consequences to gay and transgender people “couldn’t be further from the truth.”
“It’s difficult for me to understand how they think this is narrowly tailored given the breadth of the populations that are affected,” she said. “I suppose if you’re a heterosexual married couple, you’re fine?”
Mr. Wildmon and other supporters of the law have depicted a country whose religious convictions are under siege. The outcry over measures in North Carolina and Mississippi, the argument goes, is the result of a cultural insurgency of pro-L.G.B.T. forces that have taken over big business, Hollywood and the news media.
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“These people are so paranoid, the L.G.B.T. bunch, about this, when nobody is discriminating against them because of who they have sex with,” Mr. Wildmon said. “They want to go after these Christians to prove a point and that’s why these laws are being enacted.”
That sentiment has become increasingly acute in the wake of the Supreme Court’s landmark ruling last year guaranteeing a right to same-sex marriage. Nowadays, Gov. Bryant said during his radio interview, religious people who raise objections to gay marriage are stigmatized as hateful.
Religious believers aren’t trying to dictate other people’s lives, he said. “We’re just saying, ‘Can you let us lead our lives? Can you just let us decide what we want to do?’ ”
Several legal experts have predicted that the law, which goes into effect July 1, would not survive judicial scrutiny in part because its elevation of specific religious beliefs violates the First Amendment’s establishment clause, which bars an official endorsement of one particular religion.
Mr. Hill, of the Human Rights Campaign, said the gay rights group and its partners were already exploring their litigation options.
Some analysts have dismissed the whole legislative effort as political theater, arguing that the bill won’t significantly alter the ground reality for gay and transgender people who are already vulnerable under state law.
Mississippi lacks any legal protections for gay, lesbian and transgender people in housing, employment or public accommodations such as restaurants, hospitals and schools. At the same time, the Fair Housing Act, passed in 1968, does not cover sexual orientation and gender identity.
Page Pate, a legal analyst who has studied the legislation, offered the example of the wedding cake baker who refuses the business of a gay couple.
“This law doesn’t give that person any more rights than they currently have under Mississippi law and the United States Constitution,” Mr. Pate said. “So from their perspective — ‘We need this law to protect our religious freedom’ — Uh, no you don’t.”