On Tuesday, the Mississippi legislature easily passed an Arizona-style anti-gay segregation bill, potentially legalizing anti-gay discrimination throughout the state. The bill, which in an earlier form received unanimous bipartisan support from the state House of Representatives, is almost certain to be signed by Republican Gov. Phil Bryant. That will make Mississippi the first state, but likely not the last, to enshrine anti-gay animus in law.
Many commentators have assumed that these “religious liberty” bills will be struck down by the courts—but in the case of Mississippi, it’s not quite so simple. Unlike Kansas’ and Idaho’s anti-gay laws, Mississippi’s cleverly couches its animus in seemingly neutral language. After the fallout from Arizona’s failed bill, previously enthusiastic Mississippi legislators rewrote their state’s measure to curb its anti-gay extremism. These revisions struck out the bill’s most odious provision, a section that handed private businesses a blank check to refuse service to gay people. What remains at the heart of Mississippi’s reworked bill is a dense proscription against “state action” that “burden[s] a person’s right to exercise of religion, even if the burden results from a rule of general applicability,” unless it’s “essential to further a compelling government interest” and “the least restrictive means” of furthering that interest.
If all this sounds cryptic, that’s because it is: The Mississippi legislature’s intention seemed to be to write a bill so broad and opaque that no court could possibly quibble with the constitutionality of the text alone. Indeed, even the most liberal judges of the Ninth Circuit probably couldn’t find a basis to strike down the measure as it stands now. But some day, an ambitiously anti-gay Mississippian is bound to cite the law in court. And at that point, Mississippi is going to find itself with a Romer problem.
From the vantage point of the Windsor era, Romer v. Evans might seem like a quaint relic. The case concerned a vicious Colorado constitutional amendment that forbade any city or county from passing gay anti-discrimination legislation, which many gay rights activists—still reeling from their defeat in Bowers—expected the Supreme Court to uphold. Yet six members of the court voted to strike down the Romer amendment, insisting that legislation targeting a specific group must “advance a legitimate government interest”—and really, really hating gay people didn’t quite pass muster. Since then, Romer has stood for the proposition that no state may pass a law expressly designed to demean or disadvantage gays.
The question for the courts, then, is whether Mississippi’s new law will disadvantage gay people as a group. And on its face, the statute says nothing about gays: Legislators took pains, after all, to cloak their bill in the legalese of “general applicability,” distinguishing it from the Romer amendment (and Kansas’ recent abomination). But read between the lines, and Mississippi’s bill has the potential to do exactly what the Romer amendment did: pre-empt any city or county from protecting LGBT people from discrimination. A landlord need only insist that renting to gay people “burden[s] [his] exercise of religion,” and a city ordinance banning anti-gay housing discrimination would be suddenly unenforceable. Every attempted protection for LGBT people would be rendered toothless in practice by the religious liberty defense, thus creating a regime of discrimination that looks strikingly similar to the Romer dystopia that the court so resoundingly rejected.
There is, however, an easy fix in the text itself. The Mississippi statute allows religious liberty to be “burden[ed]” so long as there’s a “compelling government interest” at stake. And while the definition of such an interest is currently in dispute, our current crop of gay-friendly justices seem likely to reject the theory that Bible-based anti-gay animus qualifies as one. That puts Mississippi in something of a bind. As eager as legislators were to pass the bill, they have every reason to be terrified of what will happen when someone actually tries to use it. As soon as someone cites the statute to wiggle out of pro-gay municipal ordinances, the Supreme Court may well render its primary purpose—to legalize anti-gay discrimination—invalid on Romer grounds, thereby rendering the whole exercise a pointless and unconstitutional charade. The state’s best hope for the law’s survival, then, is that it will never be invoked in the first place. If anti-gay activists count that as a victory, then their battle was more pathetic then we ever realized.
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