As I type this, hundreds are gathered in Jackson, the capitol of Mississippi, protesting the state’s HB 1523, the preposterously-named “Protecting Freedom of Conscience from Government Discrimination Act” and urging the governor to veto it. The fallout from North Carolina’s HB 2 (pdf) is still coming down. What the heck is going on?
While the recent successes for LGBT rights in the U.S.–particularly the Obergefell v. Hodges Supreme Court ruling–have caused many to let their guards down and celebrate victory, others have been urging us to stay vigilant. In his book “It’s Not Over“, author, activist and radio host Michelangelo Signorile predicted a backlash, and warned us against “victory blindness”. It turns out, he was right.
We have seen a rash of anti-LGBT laws sweep the country, mostly at the state level and often under the guise of “religious freedom”. Let’s take a look at a few of the worst of them.
First up, North Carolina. Last time I wrote about NC, the voters had approved Amendment 1 to their state constitution, limiting not only marriage to one man and one woman, but also preventing any similar legal arrangement, such as civil unions. That was in mid 2012, so it’s really not that big of a surprise that the legislature and governor thought they could get away with HB2. What does HB2 do? If you aren’t paying close attention, you might think it’s a “bathroom bill” as that’s how its supporters are spinning it, and the mainstream media is not doing a lot to dispel the myth. It was passed in one day in an emergency session of the legislature and signed by Governor McCrory that same day. Ostensibly it was in response to a Charlotte ordinance that permitted transgender people to use the bathroom of the gender with which they identify.
Actually, that was just a small part of a rather sweeping anti-discrimination ordinance, protecting people from discrimination in public accommodation, employment, etc based on marital status, familial status, sexual orientation, gender identity, and gender expression. And HB2 didn’t just roll back the bathroom provision, it set a state-wide policy on bathroom use for schools and “public agencies” (including public colleges): people could only use facilities for their “biological sex”:
Biological sex. – The physical condition of being male or female, which is stated on a person’s birth certificate.
Oh, and it also negated any existing and potential local non-discrimination laws related to employment or public accommodations. And prevented and negated municipalities from setting a minimum wage or anything that
…regulates or imposes any requirement upon an employer pertaining to compensation of employees, such as the wage levels of employees, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce.
Now, this approach was somewhat unique in that they did not use “religious freedom” to attempt to justify discrimination against LGBT people. It was simply a way to protect people from sexual predators in bathrooms, and set consistent state-wide policy on employment regulation and public accommodations. Sounds reasonable…if you have no context whatsoever.
The bill generated a rather loud outcry, for good reasons, and its supporters fired up the spin machine. The governor issued a set of “facts and myths” (original link to state website no longer works) about the bill, which did not fare well under the discerning eyes of fact checkers, earning a “moving violation” from a local news station and a “False” from Politifact. Also see Facts and Myths (That McCrory Forgot) About House Bill 2 .
Defenders point out that the law sets a state-wide nondiscrimination policy, which it does. But there are problems with this claim. First, the protections exclude sexual orientation, gender identity and veteran status. Second, some legal experts claim that the regulations have no teeth:
Taking a broader look at the law, it also took away a right that had previously been available to residents of any and every city in the state – the ability to file a state lawsuit over discriminatory firing.
“This is a seismic issue,” said Eric Doggett, a Raleigh lawyer who works in employment discrimination. “It’s huge. It’s a massive loss of rights, and it happened with almost no debate.”
Laura Noble, a Chapel Hill employment discrimination lawyer, agreed.
The law does say people who believe they were fired for discriminatory reasons can still bring suits to the state executive branch’s Human Resource Commission. But Doggett said that group doesn’t have the ability to award damages, like the state courts did until last Wednesday.
(from previously-linked Politifact analysis)
This law is in the books, but will probably have its day in court.
Moving back to Mississippi. HB 1523 has been passed by both the House and Senate. After a last-ditch effort to reconsider the bill today failed, it was sent to the desk of Governor Bryant. Many describe this as the worst bill of its kind to date, and I agree it’s worse than anything we have seen post-Obergefell. Section 1 of the bill is simply its preposterous name. And then shit really hits the fan in Section 2:
SECTION 2. The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction 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.
This is blatantly anti-LGBT on its face, but also caught in the cross-fire: anyone who has “sexual relations” outside of a man-woman marriage. It makes me wonder how many people who voted for this turd were at any point in their lives at odds with 2(b).
The bill then goes on to read:
SECTION 3. (1) The state government shall not take any discriminatory action against a religious organization wholly or partially on the basis that such organization:
(a) Solemnizes or declines to solemnize any marriage, or provides or declines to provide services, accommodations, facilities, goods or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act;
etc. The language is loaded from the beginning, with use of the phrase “discriminatory action”. The term is defined in Section 4(1)… not quoting it here to keep the length down (ha) but it’s a laundry list of penalties that might be imposed on an organization or individual which discriminates against someone. Notice the irony?
Of course 3(1)(a) is just getting warmed up. Religious organizations can also make employment and adoption/foster care decisions based on Section 2. Actually, the adoption/foster care provision applies to any person. And then, 3(5):
(5) The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act:
(a) Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or
(b) Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.
This is designed to “protect” the Kleins and Stutzmans of Mississippi. Jewelry sales! You might not even be able to buy an engagement ring or anniversary gift for a same-sex partner if the jeweler objects.
And the bill keeps going. Businesses and schools may set gender-specific dress codes (e.g. men can’t wear a dress to work, and remember Section 2(c)). Government employees may recuse themselves from being involved in weddings which are not consistent with Section 2. They are expected to “take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.” However, there is no penalty for failing to do so, nor any means of redress specified for parties who feel they have been “impeded or delayed”.
A person (defined as anything but the kitchen sink: individual, religious organization, business, society, etc. ) who feel they were victims of “discriminatory action” have a broad range of remedies available to them, and 2 years to claim them.
Simply put, this cherry-picks a very specific set of religious beliefs (Section 2) and then creates a broad license to discriminate based on those beliefs. In fact, the wording is such that the person does not even need to be acting on sincerely held beliefs , just in a “manner consistent with a sincerely held religious belief or moral conviction described in Section 2“! All in the name or protecting people from government discrimination!
Many businesses and organizations are encouraging Governor Phil Bryant to veto. And no surprise, many conservative religious and anti-LGBT organizations (Southern Baptist Convention, NOM, FRC, AFA) are holding this up as model legislation. This blogger’s favorite Ryan T. Anderson is all about it.
Bryant is good pals with Tony Perkins, head of the hate group the “Family Research Council” who was present the last time Bryant signed “religious freedom” legislation. Which voices will win out remain to seen. Bryant will likely do what is best for Bryant, so it will come down to which decision he thinks will have the lesser negative impact on him.
Update 4/5/2016: Mississippi Governor signed HB 1523 this morning. Historians will mention him along with the likes of George Wallace.
At the risk of making this so long that no one ever reads it, I want to give one more dishonorable mention before I close out. For some reason it’s garnered less media attention, but it still is a terrible piece of legislation. Missouri SJR 39 was passed by the Senate–after a 39-hour Democratic filibuster–and referred to a committee in the House in March. Not much has been said about it since, but it appears to still be in progress.
It’s particularly invidious in part because it’s an amendment to the state constitution. Like the MS bill, this one aims right for the gays, but with a more precise cut. It sets out a number of exemptions “because of a sincere religious belief concerning marriage between two persons of the same sex”. Those who would be immune from a penalty based on acting (or not acting) on such a belief include: religious organizations, clergy or religious leaders, various places of worship, and:
an individual who declines either to personally be a participant in a wedding or marriage or to provide goods or services of expressional or artistic creation, such as a photographer or florist, for a wedding or marriage or a closely preceding or ensuing reception therefore
In this case an individual is “a natural person or a closely held commercial entity owned by a natural person or persons”.
Until HB 1523, I thought this was the biggest steaming pile of crap. But it turns out Mississippi has bigger bulls.