Federal judge strikes part of Mississippi religious liberty bill

Just four days before it was to go into effect, a federal judge struck down a provision in Mississippi’s new religious liberty bill that shields county clerks from punishment for refusing to issue marriage licenses to same-sex couples.

Mississippi’s attorney general anticipates additional rulings this week from Judge Carlton Reeves that could strike the law in its entirety. Reeves also declared the state’s traditional marriage law unconstitutional in 2014.

As similar laws in neighboring states faced vehement criticism, Gov. Philip Bryant signed the Religious Liberty Accommodations Act into law April 5. While hailed as courageous by religious liberty advocates, Bryant and the bill came under fire from a familiar foe—The Campaign for Southern Equality (CSE), the pro-gay legal organization that challenged the state’s marriage and adoption laws, winning both suits.

CSE filed a lawsuit against the religious liberty bill on behalf of Rev. Susan Hrostowski, one of the plaintiffs in the 2014 legal challenge to Mississippi’s marriage law. Calling the religious accommodations for county clerks a violation of the First Amendment’s separation clause and the U.S. Supreme Court’s same-sex marriage ruling, Reeves ordered the provision struck. And he hinted at further rulings.

Bryant defended the law Tuesday but would not comment on an appeal.

“The law simply provides religious accommodations granted by many states and federal law,” he said. “I remain hopeful the courts will recognize that reality.”

Reeves disagreed. His ruling declared the religious accommodation law a means to circumvent the Obergefell v. Hodges decision and his own permanent injunction of the state’s marriage law.

“The Supreme Court’s ruling will be enforced,” Reeves wrote. “Obergefell is the law of the land and, consequently, the law of this circuit.”

Philip Gunn, speaker of Mississippi’s House and co-author of HB 1523, told me the fact that out of three lawsuits filed against the Religious Liberty Accommodations Act only a single provision has been struck is an indication of the bill’s constitutional fortitude.

He said the U.S. Supreme Court in its Obergefell decision left it to the states to “strike a balance” between religious liberty and the new marriage paradigm.

“What this bill does is [a same-sex couple] can walk in and get a marriage license,” Gunn said. “Except they can’t force people who don’t agree with that to do it.”

Under the provision struck down Monday, county clerks could recuse themselves, on religious grounds, from issuing marriage licenses to same-sex couples. The clerks recusing themselves would have to submit a written notice to the State Registrar of Vital Records and must “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.”

“It does nothing to deny any rights to anyone,” Gunn said.

Reeves denied a portion of the Campaign for Southern Equality lawsuit demanding the state registrar provide plaintiffs’ counsel with recusal notices within a week of receipt; post the recusal notices to a prominent place on the State’s website; require recusing clerks to submit a plan for complying with Obergefell; and require recusing clerks to cease issuing marriage licenses to opposite-sex couples.

Gay-rights activist group Human Rights Campaign has created similar “hit lists” of opponents to same-sex marriage. The group recently lobbied the Obama administration to release a list of all faith-based colleges and universities seeking exemption from Title IX, which now requires schools to consider gender identity in sex discrimination cases.

According to Roberta Kaplan, an attorney with CSE representing the plaintiffs, “the statute violates the First Amendment separation of church and state.”

But Gunn, also an attorney, and an active member in a Baptist church, noted the Constitution includes other provisions CSE has ignored.

“The First Amendment guarantees the right to religious freedom,” he said.