Wednesday, March 29, 2017

Law Professor Amicus Brief in the Mississippi FADA Case

Nelson Tebbe

On Monday, a Fifth Circuit panel will hear Barber v. Bryant, a challenge to Mississippi’s H.B. 1523. At root, that law prohibits the government from taking “discriminatory action” against religious actors that hold any of three enumerated religious or moral beliefs: a) that “[m]arriage is or should be recognized as the union of one man and one woman;” b) that “[s]exual relations are properly reserved to such a marriage;” or c) that “male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The Mississippi law contains provisions concerning employment discrimination, public accommodations, adoption services, and health care, among other areas. And it defines “discriminatory action” broadly. Among other things, the state many not “[i]mpose, levy or assess a monetary fine, fee, penalty or injunction.” This language could cover most remedies for civil rights violations. Moreover, the protected actors—“persons” and “religious organizations”—are defined expansively. For example, the term “person” explicitly includes for-profit corporations.

This is case is important not only in itself, but also because the Mississippi law resembles the federal “First Amendment Defense Act” or FADA. Although that measure has not yet been enacted, Senators have announced plans to introduce FADA, and President Trump has pledged to sign it. There is a similar provision in Trump’s draft executive order on religious freedom, as Ira Lupu and Bob Tuttle explained yesterday. So the Fifth Circuit’s decision in the case could set a consequential precedent.

An amicus brief has been filed on behalf of law professors who specialize in religious freedom law. We argue that H.B. 1523 violates the Establishment Clause for four reasons, which we summarize this way: “Taken together, HB 1523’s unusual features result in four distinct constitutional violations: it (1) has a religious purpose, (2) endorses the Enumerated Beliefs, (3) discriminates on the basis of belief and denomination, and (4) inflicts significant harm on third parties.”

The brief’s primary author is Joshua Matz, and it has been signed by Caroline Corbin, Ira Lupu, Micah Schwartzman, Richard Schragger, Elizabeth Sepper, Robert Tuttle, and me.

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