A Single Paragraph

From Mark Joseph Stern, a writer for Slate. He covers the law and LGBTQ issues.

Mississippi’s viciously anti-LGBTQ Christian supremacist “religious liberty” law—which would legalize discrimination against LGBTQ people in housing, employment, public accommodations, schooling, marriage licensing, and health care—is brazenly unconstitutional. That, at least, was U.S. District Judge Carlton Reeves’ conclusion when he blocked the law from taking effect in June, holding that it violated both the Establishment and Equal Protection Clauses of the Constitution. But even after Reeves delivered his bench-slap to the state, Mississippi Republican Gov. Phil Bryant returned to court to ask the judge to let the law take effect while he appealed Reeves’ decision to a higher court.

 On Monday, Reeves gave Bryant his answer. It wasn’t pretty. First, Reeves criticized Bryant and his attorneys for botching basic facts about the case, noting pointedly that the errors “may be because, even though the record has been prepared, the appellants did not attend the two-day evidentiary hearing, and are now represented by different counsel who also did not attend the hearing.” Then Reeves castigated Bryant for comparing the Mississippi law—and, in particular, a provision that allows clerks to refuse marriage licenses to gay couples—to statutes that “permit persons to opt-out of going to war or performing abortions.” Issuing a marriage license to a same-sex couple, Reeves wrote, “is not like being forced into armed combat or to assist with an abortion.”

Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases.

This reprimand is brutal but necessary, and it brilliantly cuts to the core of Mississippi’s wildly flawed arguments. The state insists that its citizens must have the religious freedom to discriminate against LGBTQ people, elevating bigoted acts to a form of legally protected liberty. Reeves concisely explains why this theory is so wrong: Under the Constitution, states are legally barred from passing laws motivated by animus toward gay people and cannot explicitly license individuals to inflict their personal prejudices on others. That’s doubly true for agents of the state, like clerks, who in fact have a duty to follow the Constitution’s commands—a duty that cannot be trumped by a claim of religious animosity. Bryant and Mississippi, Reeves essentially writes, have the very notion of liberty fundamentally backward.

Robert McDuff, who is litigating the case for the Mississippi Center for Justice, told me the ruling was “no surprise”: “Judge Reeves’ original opinion made it clear that this law should not be allowed to go into effect,” he said. “He was right then and he was right yesterday. Now, we await the Fifth Circuit. As Judge Reeves said in yesterday’s order, ‘the baton is now passed.’ ”

I also asked Roberta Kaplan, who is helping to litigate the case and argued against the Mississippi law in Reeves’ courtroom, what she thought of Reeves’ scalding rebuke.

“It’s poetry,” she told me.