Here’s a pro tip: if you’re going to enact a law intended to enable discrimination, you might want to make at least some minimal effort not to emulate other laws the Supreme Court has already struck down.
And yet, the lawmakers behind Mississippi’s HB 1523, legislation permitting a broad range of discrimination against LGBT people in that state, violated one of the cardinal rules of drafting discriminatory laws — don’t be so flamboyant about it!
Before the mid-1990s, the Supreme Court largely ignored — or even actively shut down — cases brought by parties alleging anti-gay discrimination. That changed with the Court’s 1996 decision in Romer v. Evans, which struck down a Colorado constitutional amendment that singled out gay men, lesbians and bisexuals for inferior treatment under the law. Labeled as a ban on “Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation,” the amendment forbade any arm of Colorado government from extending civil rights protections “whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.”
The primary sin of this amendment, as Justice Anthony Kennedy explained for the Court, was that it made gay people and bisexuals into a kind of underclass who were not even permitted to seek out civil rights protections through the ordinary political process. “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres,” Kennedy wrote. “The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”
“Laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Kennedy added. “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.”
Which brings us back to HB 1523. The Mississippi law, like the Colorado amendment, explicitly singles out LGBT people “for disfavored legal status.” The law begins with a declaration that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that . . . marriage is or should be recognized as the union of one man and one woman” and that “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth” (additionally, the law also purports to give special rights to people who object to extramarital sex of all kinds). Though dressed up somewhat in the rhetoric of religious liberty, this declaration is about as explicit a statement as Mississippi could have mustered expressing animus towards LGBT individuals. It specifically identifies same-sex couples and trans people as the “solitary class” disabled by the law.
The bulk of the rest of the law is a laundry list of the specific disabilities LGBT people will face if HB 1523 remains in effect. Though Mississippi isn’t exactly a haven for LGBT rights to begin with, the new law prevents the state or its subdivisions from extending a wide range of protections on the basis of sexual orientation or gender identity.
Thus, employers gain a special right to force trans-women to wear traditionally male clothing, or vice-versa. Photographers, wedding planners, cake bakers, venues and other, similar services gain a special right to deny services to same-sex couples. Foster parents gain a special right to raise children to support marriage discrimination and to be anti-trans. Employers deemed “religious organizations” gain the special right to fire any employee — from the chief executive to the janitor — for supporting marriage equality or for being trans.
Some of these acts, of course, may remain illegal under federal law, but the law extends as much of an umbrella as Mississippi can extend over a wide range of discrimination.
Admittedly, the Mississippi law is not perfectly comparable to the amendment in Romer. Colorado’s amendment was a sweeping general ban on civil rights laws based on sexual orientation, while the Mississippi law appears to be a wish list of specific permissions sought by anti-LGBT religious groups. Even so, the Court’s gay rights jurisprudence has only grown more robust since Romer. Indeed, the Court’s 2015 marriage equality decision includes some language suggesting that courts should apply a high degree of skepticism to any law that discriminates on the basis of sexual orientation.
Of course, that doesn’t necessarily mean that the Court will look with similar skepticism at discrimination against trans people, but the trend in LGBT rights cases has moved almost entirely in one direction since Romer. That fact, combined with HB 1523’s explicit language identifying it as an unambiguous permission slip to engage in discrimination, will likely be enough to shut the law down once it starts to limit the rights of LGBT people in that state.