LGBT Mississippians could have more to lose or gain than most as the U.S. Supreme Court weighs in on whether or not employers have the right to fire people based on their sexuality and gender identity, because the Hospitality State holds the distinction for the most anti-LGBT law in the nation.
The "Religious Liberty Accommodation Act," or H.B. 1523 as it is commonly known, allows business owners to refuse to serve LGBT customers if they invoke certain "deeply held religious beliefs or moral objections" related to sexuality and gender identity. Pro-LGBT advocates are open to the possibility of bringing a federal lawsuit against the law, but the outcome of three pending cases on LGBT workers' rights could prove vital.
Jasmine Beach-Ferrara, the executive director of the Campaign for Southern Equality, a North Carolina-based LGBT advocacy group, told the Jackson Free Press last month that her organization continues "to hear somewhat regularly" stories from Mississippians who believe they have experienced discrimination based on their gender identity or sexual orientation. To bring a case, CSE would likely need to find a plaintiff who had been denied service based on their sexual orientation—but CSE wants to make sure any lawsuit has a good chance of success.
"You have to always proceed judiciously, and one of the first things you do have to think about is, 'Is this a strategy that's likely to lead to this law being overturned or not?'" Beach-Ferrara said on Sept. 26. "And the reality we live in in this country right now is that this is the Supreme Court we've got for the near future.' I don't want to look in a crystal ball. I don't know what decision will be made. But we absolutely will take a look at it."
She described the cases currently before the nation's highest court as "incredibly significant."
"We'll probably have a clearer indication as that case moves forward on what the current climate is like on the Supreme Court around LGBT issues," Beach-Ferrara said.
The three privileged beliefs that H.B. 1523 expressly protects include the belief "that marriage is and should be an exclusively heterosexual union"; that "sex should not occur outside of marriage"; and "that biologically-assigned sex is objective and immutably linked to gender."
In practice, that means that a wedding catering business or venue might refuse to rent their services or space out to a gay couple, as one example. But in late August, a wedding venue in Booneville, Miss., seemed to invoke the law to refuse to allow an interracial couple to use rent its services—even though H.B. 1523 does not protect racist beliefs about marriage. (The owner later apologized, blaming it on bad theology and saying that a fresh reading of the Bible revealed to her that God does not forbid interracial marriages).
After the Obergefell decision, Mississippi’s leaders "made sure to let us know we are still beneath the religious elite," Rev. Brandiilyne Mangum-Dear said. "We may have acquired marriage that day (in 2015), but we certainly didn't get equality."
CSE has already sued Mississippi over H.B. 1523. In 2016, federal courts blocked the law from taking effect while they considered the arguments. U.S. District Court for the Southern District of Mississippi Judge Carlton W. Reeves initially struck the law down, ruling that it was unconstitutional. Because the courts had blocked the law from taking effect, though, none of the plaintiffs could say a business had invoked it to deny them services based on their sexual orientation or gender identity.
When the State appealed the ruling to the 5th U.S. Circuit Court of Appeals in New Orleans, the conservative-leaning court punted on the merits of the case, instead nullifying Reeves' ruling on the basis that the plaintiffs did not have standing to bring the case because none of them had yet been harmed by the law. Though delayed, the law went into effect two years ago this month.
Less than a year later, U.S. Supreme Court Justice Anthony Kennedy, the swing vote on the court who wrote the landmark decisions striking down sodomy laws and bans on same-sex marriage, retired. That left the fate of future LGBT rights cases in considerable doubt as President Donald Trump appointed conservative jurist Brett Kavanaugh to the vacant seat.
A Supreme Court decision on LGBT employment discrimination likely would not have an immediate impact on the Mississippi law one way or another, because the issues are not analogous. But a clear ruling in favor of the plaintiffs could signal to groups like CSE that the time is ripe for a new challenge to H.B. 1523, while an unfavorable ruling could preview a much darker fate for future LGBT rights cases.
'Because of Sex'
On Tuesday, the nine justices on the U.S. Supreme Court heard two hours of arguments on the issue stemming from three cases, including one in which skydiving company Altitude Express Inc. fired New Yorker Donald Zarda after he told a woman he was gay to make her feel more comfortable about being strapped in with him during a dive. In another, Gerald Bostock lost his job as a social worker in Clayton County, Ga., after speaking openly about his sexual orientation. In a Michigan case, Aimee Stephens lost her job as a funeral director at R.G. & G.R. Funeral Home after informing the owner that she is a transgender woman.
In the Oct. 8 hearings, attorneys for the plaintiffs argued that the firings violate Title VII of the 1964 Civil Rights Act, which bans employers from discriminating "because of sex" in addition to race, color, religion and national origin. But Congress in 1964 would not have had LGBT people in mind when it wrote that law, opposing counsel argued.
"No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64," said Justice Ruth Bader Ginsburg, who joined the majority in voting to overturn same-sex marriage bans in 2015. "It wasn't until a book was written in the middle '70s bringing that out. And now we say, 'Of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination.' But it wasn't recognized (in 1964)."
Despite that, the U.S. Supreme Court unanimously found that sexual harassment violates Title VII in the 1986 case Meritor Savings Bank v. Vinson.
Kavanaugh said little and did not tip his hat one way or the other, the Washington Post reported, adding that Chief Justice John Roberts did not either, even though he voted against gay-marriage rights in the court's two landmark rulings on the issue in 2013 and 2015.
But Trump's first Supreme Court appointment, conservative Neil Gorsuch, surprised some court watchers when he pushed back against the defending counsel's argument that Title VII does not protect gay people because "sexual orientation" is separate from "sex."
"Isn't sex also in play here, and isn't that enough?" Gorsuch asked, noting that the two cases involving gay men are both about "a man who likes other men." If their sex alone had been different and they had been women who liked men, he suggested, they would not have been fired.
Gorsuch considers himself a textualist, which in judicial parlance means he believes judges should interpret the law based solely on the words of any given statute—not based on what its authors may or may not have had in mind at the time. Still, he signaled some discomfort with taking a more expansive view of the 1964 Civil Rights Act, particularly when it comes to transgender employees. Maybe, he suggested, Congress should tackle the issue to avoid a "massive social upheaval" by judicial fiat.
The Equality Act
Earlier this year, the Democratic-led U.S. Congress did just that when it passed the Equality Act, which would have updated Title VII to explicitly codify LGBT-employment protections into the 1964 law. Every Democrat voted for it, with eight Republicans joining them. Like other bills focused on minority rights, though, the bill was dead-on-arrival in the U.S. Senate, where Republican Senate Majority Leader Mitch McConnell boasts he is the "grim reaper" for Democratic legislation, blocking legislation like the Equality Act from ever getting a hearing, much less a vote.
All three of Mississippi's Republican congressman voted against the Equality Act, with 4th District Congressman Steven Palazzo calling it "the most invasive threat to our religious liberties this Congress," without noting that it would do no more than grant LGBT people the same civil rights protections current law already affords religious Americans.
"It's important to protect religious freedom, and I don't think anyone is arguing with that. It's already protected by the First Amendment," CSE Communications Director Adam Polaski told the Jackson Free Press in May. "It's about protecting people from discrimination. It's about ensuring that people can show up to work as their full selves.
"It's about ensuring that people can find a home and find a place to live without fear of being turned away or evicted. So I think it's easy to get wrapped up in kind of scaring people about what the Equality Act is about, but at the end of the day, it's about supporting people to live their lives and be their most authentic selves."
U.S. House Rep. Bennie Thompson, the only Democrat in Mississippi's congressional delegation, voted for the Equality Act. Mississippi is among 29 other states that provide no employment protections for its residents.
"The same people who are against (the Equality Act) are the same kind of people who were against the Civil Rights bill, and (in 1964), they cited some of the same reasons for opposing protections based on race as they are citing for this now," Thompson's press secretary, Ty James, told the Jackson Free Press in May. "We are also living in a time now where people are using their so-called religious beliefs to impose discrimination on others, and to justify (discrimination). Most of this isn't new. Most of these arguments against progress are old arguments."
The U.S. Supreme Court is expected to render in the LGBT rights case and several other high-profile cases, including one involving a Louisiana abortion law, by June 2020—right in the thick of next year's presidential election.
Follow State Reporter Ashton Pittman on Twitter @ashtonpittman. Send tips to [email protected]. Read more coverage of LGBT rights in Mississippi at jacksonfreepress.com/lgbt.