I have a question.
Of course you do.
Don't be rude. You've abandoned this site for weeks. What's your issue?
I was in trial. I apologize for not entertaining you. What's your question?
That new law in Mississippi. The one people call a "religious liberty" bill, either with our without scare quotes. Does it really allow people in Mississippi to refuse to serve gay people who come into their stores?
Yes with an if, or no with a but.
That's not helpful. So does it just let people refuse to serve customers if something about the customers offends their religious sensibilities?
Only if their religious sensibilities arise from three narrowly defined beliefs identified in the bill.
This bill doesn't protect all religious beliefs from government intrusion. It just protects three that the legislators like.
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.
Does the bible say something about immutable biological sex?
It may. I drifted off during Leviticus to be honest.
Wait a minute. Can the government decide to give extra protection to some religious beliefs but not others? Does that violate the Establishment Clause or the Equal Protection Clause?
As we speak, lawyers are thinking about how to argue that.
That's a copout answer.
I'm waiting for smarter people to answer it first.
So now anyone in Mississippi can refuse to serve a customer on any of those bases?
No. It's narrower than that.
Well, first of all, the bill cannot and does not purport to change federal law, so to the extent something is prohibited by federal law, it's not protected from federal intervention by this bill. The bill only protects people in Mississippi from intervention by the state of Mississippi or its cities.
Second, the bill's protections are limited to a fairly narrow range of people and activities.
Well, Section 3(1) prohibits the state government from taking "discriminatory action" against religious organizations for doing certain things:
28 (a) Solemnizes or declines to solemnize any marriage,
29 or provides or declines to provide services, accommodations,
30 facilities, goods or privileges for a purpose related to the
31 solemnization, formation, celebration or recognition of any
32 marriage, based upon or in a manner consistent with a sincerely
33 held religious belief or moral conviction described in Section 2
34 of this act;
35 (b) Makes any employment-related decision including,
36 but not limited to, the decision whether or not to hire, terminate
37 or discipline an individual whose conduct or religious beliefs are
38 inconsistent with those of the religious organization, based upon
39 or in a manner consistent with a sincerely held religious belief
40 or moral conviction described in Section 2 of this act; or
41 (c) Makes any decision concerning the sale, rental,
42 occupancy of, or terms and conditions of occupying a dwelling or
43 other housing under its control, based upon or in a manner
44 consistent with a sincerely held religious belief or moral
45 conviction described in Section 2 of this act.
Wait. Was Mississippi trying to force priests to conduct gay weddings before?
No. Of course not. That would violate the First Amendment.
But people say that the Supreme Court decides all sorts of crazy things and that it COULD happen.
And monkeys might fly out of my butt. But there's no plausible indication that even an activist Supreme Court will apply anti-discrimination laws to religious sacraments. To the contrary, in 2012 the Supreme Court unanimously found that a "ministerial exception" prohibited a former church employee from bringing a discrimination suit against the church.
So why was the "Mississippi can't force you to perform a gay wedding" clause necessary?
To convey that gays are mean and scary, I imagine.
Is any of Section 3(1) really necessary?
Well, Section 3(1)(b) allows religious organizations to discriminate in hiring based on the three protected beliefs. That's probably a bit broader than First Amendment protections, which would only protect that choice for "ministerial" employees. So, basically, the First Amendment wouldn't allow Mississippi to fine a church for refusing to hire a gay pastor, but Mississippi could constitutionally fine a church for refusing to hire a gay custodian or receptionist. I mean, if Mississippi were ever inclined to do such a thing, which I doubt.
Also, churches that rent out their facilities to the general public could plausibly be penalized even under the First Amendment if they do so in a discriminatory manner — if they offer them to everyone except gays, for instance. So before this bill Mississippi could have punished that.
Was there a danger Mississippi was going to do that?
Of course not. But I guess maybe a town or two in Mississippi might. A lot of these state-level "religious liberty" statutes are a struggle between more conservative state-level power and more liberal local power — state legislators quashing local ordinances.
I thought conservatives liked local control?
I'm the snide one. Step back.
Okay. What else does the bill do?
Section 3(2) prohibits the Mississippi state government from taking action against religious organizations that facilitate foster care or adoption only according to the three specified beliefs. Section 3(3) says the state can't punish a foster or adoptive parent for teaching the specified religious beliefs. Section 3(4) says Mississippi can't punish people for not participating in the provision of treatments or counseling that contradict the specified beliefs.
So Mississippi is saying that the state can't punish you for refusing to help a gay couple conceive through IVF or surrogacy, for instance?
Right. In addition, Section 3(5) lets you refuse to provide a wide range of services in connection with a marriage if that marriage is against one of the specified religious beliefs:
73The state government shall not take any discriminatory
74 action against a person wholly or partially on the basis that the
75 person has provided or declined to provide the following services,
76 accommodations, facilities, goods, or privileges for a purpose
77 related to the solemnization, formation, celebration, or
78 recognition of any marriage, based upon or in a manner consistent
79 with a sincerely held religious belief or moral conviction
80 described in Section 2 of this act:
81 (a) Photography, poetry, videography, disc-jockey
82 services, wedding planning, printing, publishing or similar
83 marriage-related goods or services; or
84 (b) Floral arrangements, dress making, cake or pastry
85 artistry, assembly-hall or other wedding-venue rentals, limousine
86 or other car-service rentals, jewelry sales and services, or
87 similar marriage-related services, accommodations, facilities or
So. If I read that right, I can't refuse to let a gay person stay at my hotel in general, or refuse to sell a lesbian a cake in general, but I can refuse to let gays honeymoon at my hotel or sell a wedding cake for a lesbian wedding?
Right, that's what the statute purports to protect.
What if I don't want to provide a cake to a wedding reception because it's a divorced Catholic getting remarried, or because it's an interfaith wedding, and those things violate my religious beliefs?
This bill doesn't protect you, then. The Mississippi only singled out three preferred religious beliefs for protection.
Doesn't that violate the . . . .
WAITING. FOR SMARTER. PEOPLE.
FINE. Anything else in the bill?
Yes. Section 3(6) lets people establish gender-restricted restrooms. Section 3(7) lets public employees express the specified religious beliefs if it follows the employer's rules for expression in general or is outside of work.
Wait a minute. Don't public employees already have that right?
Why yes! I'm glad you asked. [talks for three hours.] In short, for speech on matters of public concern, a state employer can discipline public employees for speech if a balancing test finds that the employer's interest in an "orderly and efficient workplace" outweighs the employee's speech rights. Mississippi's bill arguably gives public employees broader free speech rights by allowing them to speak on these specified subjects without engaging in a balancing test about whether any disruptive effects outweigh the employee's speech rights.
So the state of Mississippi chose three specific religious doctrines, and announced a special right for public employees to articulate those specific doctrines that is broader than the right to articulate other religious doctrines and ideas?
What the fucking fuck?
Forget it Jake. It's Mississippi.
Anything else? Please say no.
Section 3(8) lets government employees opt out of issuing marriage licenses or solemnizing marriages if it offends their religious beliefs. Sections 5 and 6 lets aggrieved people sue for injunctive relief if they think that Mississippi or its localities are violating this bill.
How would you summarize this?
Mississippi's bill does not "allow anyone to discriminate against anyone," as it's been inaccurately described in the media. For the most part it only says that, if Mississippi or its cities ever had any laws protecting gays from discrimination, religious organizations and wedding vendors in Mississippi wouldn't have to follow them.
However, the spectacle of a state law that chooses very specific religious doctrines and elevates them above other doctrines and beliefs is very disturbing. As I read it, in Mississippi, a public employee could be fired for saying "discriminating against gay marriage is a sin against God, who wants us to love one another," if the disruptive effect of saying that outweighed the employee's speech. But the same public employee could not be fired for saying "gay marriage is a sin against God," even if the same balancing test showed that its disruptive impact outweighed the employee's speech rights. That's just freakish. It's not the rule of law.
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