Mississippi religious liberty law gets high court reprieve

The U.S. Supreme Court opted Monday not to weigh in on a case challenging a new Mississippi law that provides a defense against adverse government action and private lawsuits over religious convictions about marriage, sexuality, and gender identity.

The law went into effect in October after the 5th U.S. Circuit Court of Appeals reversed a lower court’s injunction and dismissed the lawsuit for lack of standing. The plaintiffs—a group including same-sex couples, the Campaign for Southern Equality, and a church—argued the law sent a “clear message” that is “hostile” to LGBT Mississippians and that it endorsed a specific religious belief in violation of the Establishment Clause of the First Amendment of the U.S. Constitution. But a three-judge appeals court panel unanimously ruled the plaintiffs failed to show the law had harmed them.

“Future injuries can provide the basis for standing, but they ‘must be certainly impending to constitute injury in fact,’” Judge Jerry Smith wrote, citing legal precedent. “Allegations of possible future injury are not sufficient.”

The U.S. Supreme Court did not state why it declined to hear the case, as is customary.

Since the law went into effect, no one has filed a lawsuit claiming actual harm, Clay Chandler, a spokesman for Gov. Phil Bryant, told me. Bryant, a Republican, applauded the Supreme Court’s decision.

“As I have said from the beginning, this law was democratically enacted and is perfectly constitutional,” he said in a statement. “The people of Mississippi have the right to ensure that all of our citizens are free to peacefully live and work without fear of being punished for their sincerely held religious beliefs.”

The Protecting Freedom of Conscience from Government Discrimination Act allows “sincerely held religious belief or moral conviction” as a defense in adverse government actions and private lawsuits against individuals who act in accordance with the beliefs that “marriage is or should be recognized as the union of one man and one woman; sexual relations are properly reserved to such a marriage; and male (man) or female (woman) refer(s) to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The state law supplants municipal codes like those in Jackson, Miss., where it is a “hate crime”—punishable by a fine of up to $1,000—to discriminate against someone based on their “real or perceived” sexual orientation or gender identity. That gives local business owners some legal protection for declining to service same-sex weddings for reasons of conscience.

Faith-based ministries, like foster care and adoption agencies, also will be free to operate according to their religious convictions, knowing they have a state-sanctioned response to any civil lawsuits challenging their operational standards. And physicians can follow their conscience by refusing to offer “gender-affirming” treatments to patients with gender dysphoria.

After a federal judge struck down the law in 2016, Mississippi Attorney General Jim Hood refused to defend it. Bryant tapped two attorneys to represent the state, pro bono, in the appeals process. Jim Davis, executive director of the Department of Human Services, and attorneys from Alliance Defending Freedom (ADF) also defended the bill.

The fact that no new lawsuits have been filed since the bill went into effect testifies to its narrowly crafted language, ADF attorney Kevin Theriot told me. But despite lawmakers’ efforts to strike a balance between ideologies, he expects another legal challenge to the Mississippi law in the future.

Half-baked ruling

Attorneys for former Oregon bakery owners Melissa and Aaron Klein knew they had an uphill battle in a state with a sexual orientation and gender identity nondiscrimination law but no offsetting Religious Freedom Restoration Act. Even with the law's limited religious expression allowances, it came as little surprise when a state appeals court ruled against the couple for declining to create a cake for a same-sex wedding, the couple's attorney said.

The Kleins have until Feb. 1 to appeal to the Oregon Supreme Court. But that appeal most likely will be influenced by a U.S. Supreme Court decision in the case of Colorado baker Jack Phillips (Masterpiece Cakeshop v. Colorado Civil Rights Commission), Ken Klukowski, the attorney with First Liberty defending the Kleins, told me.

The bakers’ fights against their respective state administrative courts have overlapped: As the Kleins waited nine months last year for the Oregon Appeals Court ruling, the U.S. Supreme Court agreed to hear Phillips’ lawsuit. And now, as the Kleins’ attorneys prepare for a probable appeal to the Oregon Supreme Court, they do so anticipating a decision in the Phillips case that could get worked into the appeals mix, Klukowski said.

Appeals briefs could be filed as early as April if the Oregon Supreme Court decides to hear the Kleins’ case. But with a U.S. Supreme Court decision expected by June, attorneys on both sides will have to file supplemental briefs informed by the high court ruling.

Depending on how the Phillips case is decided, the Kleins—like the similarly situated Washington florist Barronelle Stutzman—could still have their day before the U.S. Supreme Court, Klukowski said. By that time, potential retirements and appointments on the high court could have a significant affect on any religious liberty cases awaiting a hearing. —B.P.

To kneel is to speak

Speaking freely includes kneeling, according to a Southern California federal judge who granted an injunction against a school district’s proposed ban on student protests during the playing of the national anthem. U.S. District Judge Cynthia Bashant’s Dec. 21 order came a day after school district Superintendent Rauna Fox announced the district would drop the policy.

A senior on the San Pasqual Valley High School football team, who twice took a knee in protest during the playing of “The Star-Spangled Banner” last year, filed a lawsuit Dec. 8 in a San Diego federal court after Fox drafted what she called a “temporary” policy requiring all students and staff to stand or face possible expulsion from the team. Fox then tasked the school district’s attorney with drafting a long-term policy, but the school board declined to vote on it during its last meeting of the year.

The district does not play the national anthem at any sports events except football games, making the policy—and the lawsuit—moot, Fox said. —B.P.

Epiphany appearance

Dat Nguyen had to petition county officials for permission to display a nativity scene on the grounds of the Santa Cruz County Government Center, and he received permission just in time for the Feast of the Epiphany celebration on Saturday. County officials rejected Nguyen’s initial request to place the traditional crèche inside the county building during the Christmas season, but he appealed with assistance from the Thomas More Society, which has partnered with the American Nativity Scene (ANS) to educate the public about the lawful display of religious symbols on public property, with the goal to place a nativity display in all 50 state capitols. Sixteen crèches went on display in 2017, and local ANS affiliates have placed nativities on county property across the country. Santa Cruz officials gave Nguyen permission to put up the display Friday, with the stipulation it not remain overnight. —B.P.