In April, Mississippi passed the most far-reaching anti-LGBTQ law this country has ever seen: a stunningly vicious measure that effectively legalizes segregation against gender and sexual minorities in housing, employment, public accommodations, schooling, medical treatment, government services, and marriage licensing. Unlike other “religious liberty” measures, Mississippi’s law, HB 1523, singled out LGBTQ people for unequal treatment, explicitly legalizing discrimination against them as a class. That, of course, is quite unconstitutional. And on Monday, the ACLU filed a lawsuit to render the law invalid in its entirety.
The ACLU’s suit is centered around Obergefell v. Hodges and United States v. Windsor, the Supreme Court’s decisions holding that same-sex marriage bans violate the Due Process and Equal Protection Clauses of the 14th Amendment. Those bans, the court explained, had the “avowed purpose and practical effect” of imposing “a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” HB 1523, the ACLU argues, imposes a constitutionally analogous “stigma” upon “all married same-sex couples in Mississippi,” subjecting their marriages to “different terms and conditions than those accorded to different-sex couples.”
HB 1523 “targets precisely the same class of people that Obergefell protects,” the ACLU continues. “Although same-sex couples may now legally marry in Mississippi, HB 1523 identifies that subset of legal marriages and makes them unequal to all other types of legal marriages.” Moreover, the law isn’t even necessary to protect religious beliefs; Mississippi already passed a milder anti-LGBTQ “religious liberty” law. HB 1523 thus “singles out the marriages of same-sex couples for a unique set of burdens” for no reason other than mere animus.
The ACLU notes that one provision of the law, which allows clerks to recuse themselves from issuing marriage licenses to same-sex couples, will require the state to create a “no same-sex couples allowed” list—thereby “creating a separate and unequal set of laws applying only to same-sec couples.” (A separate but related legal action currently pending also takes aim at this especially troubling provision.) This list, the ACLU explains, would be “just one part of a comprehensive legal regime created by HB 1523” for the gay plaintiffs it represents:
Whenever Plaintiffs celebrate their anniversary, for-profit businesses will have an absolute right to refuse to provide them goods and services. If Plaintiffs seek to adopt a child out of foster care, adoption agencies have an absolute right to turn them away because they are a same-sex couple. If Plaintiffs seek counseling or fertility services, any hospital employee from the receptionist to the obstetrician may refuse to interact with them because they are a same-sex couple. [Note: This has already happened in Michigan.] If Plaintiffs have a child, the school guidance counselor could tell their child that his or her parents’ marriage is an abomination or refuse to provide any counseling services to their child at all. Through these sweeping exclusions, HB 1523 subjects same-sex marriage couples in Mississippi to a lifetime of potentially humiliating denials of ordinary assistance and places a badge of inferiority upon their marriages each time they celebrate one of the ordinary incidents of family life.
This “separate and unequal regime,” the ACLU concludes, clearly violates the Constitution’s intertwined guarantees of liberty and equality.
The ACLU’s argument that Obergefell precludes HB 1523 is powerful—but a better precedent might be Brown v. Board of Education. Mississippi has done nothing less than relegate LGBTQ people to second-class citizenship, stripping them of the ability to participate equally in public life, denying them the fundamental benefits of citizenship that all others receive. That is segregation. And in Brown, the court flatly declared that “segregation is a denial of the equal protection of the laws.” You don’t have to go much further than that to see why HB 1523 will almost certainly be invalidated as a constitutional disgrace in the very near future.
