Sorry Mississippi, Your ‘License To Discriminate’ Isn’t Starting Today After All

Attorney Roberta Kaplan is representing the Campaign for Southern Equality in its challenge of HB 1523. CREDIT: AP PHOTO/ROGELIO V. SOLIS
Attorney Roberta Kaplan is representing the Campaign for Southern Equality in its challenge of HB 1523. CREDIT: AP PHOTO/ROGELIO V. SOLIS

Mississippi’s HB 1523, a law specifically outlining legal ways for people to discriminate against LGBT people, was set to take effect Friday, but Thursday night, a federal judge granted a preliminary injunction preventing it from doing so.

U.S. District Judge Carlton Reeves, who previously ruled against Mississippi’s bans on same-sex marriage and adoption, concluded that HB1523 violated both the First Amendment and Fourteenth Amendment of the Constitution by favoring one set of religious beliefs over others. Reeves’s decision responds to several suits that were filed immediately following the law’s passage.

Though Mississippi does not have nondiscrimination protections in place protecting the LGBT community, HB 1523 outlined a menu of options for legally discriminating — primarily against same-sex couples or transgender people. The bill literally stated that it was designed to protect three specific religious beliefs/moral convictions: that marriage is only between a man and a woman, that sex should wait until marriage, and that there is no such thing as having a transgender identity. Reeves concluded that by protecting only citizens with those beliefs, HB 1523 “violates both the guarantee of religious neutrality and the promise of equal protection of the laws.”

Unsurprisingly, Reeves compared the law to Colorado’s Amendment 2, a law that prohibited establishing nondiscrimination protections based on sexual orientation. The Supreme Court ruled that law unconstitutional in the 1996 case Romer v. Evans, because “a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”


“A closer analogue is difficult to imagine,” Reeves wrote. What makes the comparison particularly easy is the fact that included in HB 1523’s catalog of discrimination is a plan for the state’s clerks to recuse themselves from issuing marriage licenses to same-sex couples. “It is therefore difficult to accept the State’s implausible assertion that HB 1523 was intended to protect certain religious liberties and simultaneously ignore that the bill was passed because same-sex marriage was legalized last summer.”

Reeves was also unpersuaded by the state’s arguments that it wasn’t imposing religious beliefs on LGBT and unmarried people: “The enactment of HB 1523 is much more than a ‘psychological consequence’ with which they disagree, it is allegedly an endorsement and elevation by their state government of specific religious beliefs over theirs and all others.” Indeed, the law conveys the State’s “disapproval and diminution” of all other religious beliefs and sends the message that they are not welcome in the political community or worthy of governmental protection.

In fact, Reeves dedicated several pages of his decision to tracing the history of the Establishment Clause, noting that its original intent was not to protect atheists or members of minority faiths, but to “protect Christians from other Christians.” He explained, “Americans were weary of the British and then Colonial back-and-forth between Catholics and Protestants, Episcopalians and Presbyterians, and so on. It was better to have a neutral government than to constantly struggle for power — or live under the yoke of a rival sect for decades at a time.”

This context makes HB 1523’s violation all the more obvious. “If three specific beliefs are ‘protected by this act,’ it follows that every other religious belief a citizen holds is not protected by the act. Christian Mississippians with religious beliefs contrary to [HB 1523] become second-class Christians.”

He also rejected the state’s arguments that the bill did not define denominations and that there are members of all religious groups who might share the protected beliefs:

Every group has its iconoclasts. The larger the group, the more likely it will have someone who believes the sun revolves around the Earth, a doctor who thinks smoking unproblematic, or a Unitarian opposed to same-sex religious marriage. But most people in a group share most of that group’s beliefs. That is the point of being in a group. And in the HB 1523 context, the State has favored certain doctrines, regardless of how many individuals deviate from official doctrine on an issue.

In his decision, Reeves noted the various comments that Mississippi lawmakers made when considering HB 1523 for passage. The state argued that the intent of the law was “to address the denigration and disfavor religious persons felt in the wake of Obergefell,” last year’s Supreme Court decision establishing marriage equality nationwide. But based on the title, text, and discussion of the bill, Reeves found that its goal was actually an “attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions.”


The city of Jackson just recently became the first municipality in the state to actually pass a law protecting LGBT people from discrimination. Reeves pointed out that HB 1523 would override those protections, as well as those at schools like the University of Southern Mississippi, making them unenforceable if those who discriminate do so on the basis of a belief protected by the law.

This injunction does not result in the immediate demise of the law, but it certainly foreshadows it as the case continues. “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,” Reeves wrote. “But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”