After a federal judge found Mississippi’s post-Obergefell religious freedom law unconstitutional last week, Archbishop William E. Lori of Baltimore, presiding over Catholic bishops’ Fortnight for Freedom, had nothing to say. Likewise, the Becket Fund and the ACLJ. Even the National Organization for Marriage, which had hailed passage of the law as a “huge victory,” held its tongue.
Among the country’s leading promoters of the New Religious Freedom, only the Family Research Council, the law’s biggest cheerleader, stood up to denounce Judge Carlton Reeves’ slam-dunk decision. “While Judge Reeves issued his decree under the cloak of darkness last night, the judge’s religious animus against the people of Mississippi is clear as day,” FRC president Tony Perkins told the Jackson Clarion-Ledger. “Under this judge’s reasoning, any narrowly tailored conscience or religious freedom protections against government persecution would be invalid.”
In fact, Perkins had it exactly right. HB 1523 was narrowly tailored to protect the religious freedom of those who believe the following:
(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.
And that, Reeves held, is exactly what’s wrong with it. “It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly- divorced person,” he wrote. “The government is not in a position to referee the validity of Leviticus 18:22 (‘Thou shalt not lie with mankind, as with womankind: it is abomination.’) versus Leviticus 21:14 (‘A widow, or a divorced woman, or profane, or an harlot, these shall he not take.’).”
In other words, the First Amendment’s Establishment Clause does not permit the government to privilege some religious beliefs over others. Which is what HB 1523 does.
Gov. Phil Bryant and the Republican legislative leaders who shepherded the law have expressed their strong desire to appeal Reeves’ decision, but Attorney General Jim Hood, the sole Democrat holding statewide office in Mississippi, indicated that he would advise against it. In a statement, he had this to say:
“I can’t pick my clients, but I can speak for myself as a named defendant in this lawsuit. The fact is that the churchgoing public was duped into believing that HB1523 protected religious freedoms. Our state leaders attempted to mislead pastors into believing that if this bill were not passed, they would have to preside over gay wedding ceremonies. No court case has ever said a pastor did not have discretion to refuse to marry any couple for any reason. I hate to see politicians continue to prey on people who pray, go to church, follow the law and help their fellow man.”
It would contribute to the cause of true religious freedom if Lori, Becket, et al. would open their mouths and explain to their folks why HB 1523 is fatally flawed. Who knows, they might even save the citizens of Mississippi some money.