This short post is about more than just that one state’s law.
This is an important conflict between the First Amendment on the one hand that promises no government prohibition against practicing religion freely and the Fourteenth Amendment on the other that guarantees “equal protection of the laws.”
In the wake of Mississippi recently passing a non-discrimination law (H.B. 1523) and similar laws around the country, big businesses, like PayPal, are boycotting Mississippi and North Carolina.
From the typical headlines, one would think that the law allows anyone to discriminate against a gay person who enters a business establishment and is refused service merely for his sexual orientation.
It actually prohibits the government from suing a person or organization that “sincerely” holds “religious beliefs or moral convictions” that “(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 time of birth” (Section 2).
In other words, a religious person can’t be sued if he believes in traditional or conjugal marriage, doesn’t believe in sexual relations outside marriage, and believes that males and females really are different.
Section 3, the heart of it, lays out the protection for a religious organization or religious private citizen.
First, a religious organization cannot be discriminated against if it refuses to solemnize or accommodate in a facility a same-sex marriage – not just a gay person outside the marriage context. Likewise for a business owner who holds to those convictions in Section 2 if he doesn’t provide his services in the context of a marriage ceremony.
For example, if a gay person walks into an automotive shop (not usually related to a marriage ceremony), he cannot be denied services. But if he demands a florist to provide services to a same-sex wedding ceremony, the florist is not compelled to comply. Note, again, that the florist has to have a “sincerely” held belief spelled out in Section 2.
Next, the state shall not discriminate against adoption or foster agencies that hold to those religious or moral convictions. In plain terms, a foster parent can tell his foster daughter that a princess marries a prince, not another princess. And Catholic adoption agencies can send children to heterosexual married couples without fear of reprisal in a court of law.
The state shall not discriminate against a citizen who refuses on those Section 2 moral and religious grounds to operate on someone desiring genital reconstruction surgery, or psychological counseling, or fertility services, but the citizen should not deny a visit to the office. Thus, a counselor cannot not be sued if he believes that homosexuality is a sin and counsels reparative therapy, for example.
The state cannot sue a business like a gym or a school that separates men from women in the locker room or restroom.
Finally, the state cannot bring an action against a state employee, like a county clerk or justice of the peace, who speaks his convictions – even while on duty. And he cannot be sued if he turns over his official duties to another employee in the office who doesn’t hold those religious and moral convictions.
In plain language, a justice of the peace doesn’t have to marry a same-sex couple, and he can tell them why without fear of a lawsuit. But the state has to be quick to offer another solution.
So the irony is that the religious person can’t be discriminated against for his convictions, and the gay person has other avenues to seek his goals (e.g., marriage or flowers for a wedding).
It looks like this law favors the First Amendment, and tell the gay person to seek for his business requests elsewhere. He can’t demand, through a a lawsuit, a business owner to deny his religious beliefs.
Reasonable people like compromises, and this law provides it.
Religious freedom is an ultimate blessing for our nation.