By Pamela Wolf, J.D. On May 9, the American Civil Liberties Union and the ACLU of Mississippi filed a lawsuit to challenge the Mississippi “religious freedom” bill that was signed into law in April. The measure, HB 1523, goes a bit further than other state laws of its genre ostensibly to protect from “discriminatory action” by the government religious organizations and individuals who refuse to solemnize, celebrate, recognize, accommodate, or provide goods or services for a same-sex marriage or to same-sex-oriented individuals because of a sincerely held religious belief, or moral conviction, that marriage, as well as sexual relations, should be limited to man-woman couples. The bill was seen by many as an effort to permit discrimination against LGBT individuals. Unless enjoined, the new law goes into effect July 1. The controversial Mississippi law was part of a trend of laws passed to insulate from liability religious organizations and persons not inclined to accept same-sex marriage as legitimate, even in the wake of the U.S. Supreme Court’s Obergefell v. Hodges edict that states may not “bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” The complaint in Alford v. Moulder is filed against the state’s registrar of vital records. It was filed on behalf of a pair of ACLU of Mississippi members, a gay couple who have been engaged to be married for nearly two years and allegedly face discrimination as a result of HB 1523. Disparate treatment. The Mississippi law directly contradicts the Supreme Court’s ruling by treating the marriages of same-sex couples differently than the marriages of everyone else, according to the ACLU. The statute does not authorize anyone to discriminate against the marriages of different-sex couples based on religious beliefs, yet it singles out the marriages of same-sex couples and provides a special right for governmental officials and businesses to discriminate against them. “On its face, HB 1523 violates the Fourteenth Amendment by subjecting the lawful marriage of same-sex couples to different terms and conditions than those accorded to different-sex couples,” according to the complaint. “By creating a separate and unequal set of laws applying only to same-sex couples, HB 1523 imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.” Reinstates same-sex marriage ban? The complaint, among other things, points out that HB 1523, which incorporates “virtually the same language of Mississippi’s defunct constitutional marriage ban,” reenacts religious and moral opposition to same-sex marriage as the law and public policy of Mississippi. HB 1523 does not provide protection against religious discrimination—that protection is provided under the state’s Religious Freedom Restoration Act. Rather, it “provides complete immunity for certain individuals and organizations to act or refuse to act based on their religious or moral belief that marriage is or should be recognized as the union of one man and one woman,” according to the complaint. Other issues must wait. The new state law also includes provisions authorizing discrimination against transgender people outside the context of marriage, and against anyone who has sex outside of heterosexual marriage. Those aspects of HB 1523, however, cannot be attacked for procedural reasons in a pre-enforcement challenge against the registrar, the ACLU said. The suit seeks a declaration that HB 1523 violates the Due Process and Equal Protection clauses of the Fourteenth Amendment and seeks preliminary and permanent injunctions barring the registrar of vital records from enforcing it. “We’re stepping up to fight this sweeping anti-LGBT and unconstitutional law that authorizes discrimination against gay and transgender people,” ACLU staff attorney Josh Block said in a statement. “HB 1523 has no rightful place in Mississippi or in our history books, and we’re hopeful this lawsuit can stop as much of it as possible before it goes into effect. We won’t rest until every last piece of this law is struck down and all LGBT people in Mississippi have equal justice under the law.” The ACLU filed its lawsuit in the Southern District of Mississippi; the case is No. 3:16-cv-00350-DPJ-FKB.
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