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.”