Law & the Courts

In Mississippi, a Bill to Protect Religious Liberty Gets the Green Light

(Photo: Melinda Nagy/Dreamstime)
The Fifth Circuit Court of Appeals affirms a fundamental right.

In a victory for religious citizens in Mississippi — and in a promising sign for all religious Americans — the Fifth Circuit Court of Appeals ruled last Thursday in favor of a bill that protects religious-liberty and conscience rights in the realm of marriage.

The bill, the First Amendment Defense Act (FADA), allows religious organizations and businesses to operate in accord with their religion’s teaching on marriage and sexuality, forbids the government from silencing or firing its employees for expressing their religious beliefs, and protects employees from being forced to participate in activities that violate their consciences.

The court’s ruling is also a positive sign for those hoping to enact such protections at the federal level. A federal version of FADA has been introduced in both the House and the Senate, and President Donald Trump has pledged to sign it if it crosses his desk.

The ruling means that Mississippi’s legislation can serve as a template for any state seeking to balance two interests: the conscience rights of those who believe that marriage is a union between one man and one woman, and the intrinsic dignity and civil rights of LGBT individuals.

The conflict between those two interests has intensified in the last two years, in the wake of the Supreme Court’s decision in Obergefell v. Hodges, which saw five justices redefine marriage, for the entire country, as a union between two consenting adults regardless of gender. As a result, many Americans, religious and otherwise, who continue to hold the traditional definition of marriage have been marginalized and, in some cases, required by law to sanction same-sex marriages.

For example, in a number of recent, high-profile cases, religious business owners have been sued by customers or fined by state commissions for refusing to provide services for same-sex wedding ceremonies. So far, courts have uniformly sided against the owners, ruling that to deny service to any homosexual person is unlawful discrimination, regardless of religious belief.

Faithful Americans such as these business owners are routinely maligned by left-wing activists and politicians — not to mention popular culture, as in this late-night comedy sketch that portrays religious-freedom laws as an expression of hatred — many of whom argue that Christian are bigots who deny the humanity of LGBT people.

Such critiques either misunderstand or outright ignore the essential distinction between serving gay or lesbian clients and providing services for their wedding. For religious Americans, this is a crucial distinction, because the latter involves participation in an event that violates their faith’s understanding of marriage.

Most Americans agree that we ought to be able to coexist peacefully even when we deeply disagree, and this bill works to that end.

Contrary to what most media reports suggest, the Mississippi bill would not permit anyone to deny service to individuals because of their sexual orientation. In fact, not a single religious-liberty bill has been proposed to allow such discrimination, at either the state or the federal level. To suggest otherwise is supremely dishonest, and it poisons any possibility of finding a reasonable compromise on this issue.

What’s more, bills such as FADA must be understood in the context of our post-Obergefell society, where people who hold the traditional view of marriage are often treated by popular culture as if they were no better than racists. In such a climate, it is essential that religious citizens be given legal protection, especially since the government itself has embraced a conception of marriage in contradiction to the view of a substantial plurality of the public.

The Fifth Circuit’s legal rationale in upholding FADA provides a helpful context for understanding the best way to balance the two sets of rights at stake in this debate. The court noted, in particular, the plaintiffs’ lack of standing, due to their failure “to assert anything more than a general stigmatic injury” or to demonstrate “injury-in-fact.”

With this explanation, the court seems to point to the fundamental distinction between material and dignitary harms, the first of which merits a higher level of legal protection. Dignitary harm is considered a lesser category: It can sometimes be permitted by law, for the sake of preserving other fundamental rights.

Applied to FADA, the plaintiffs’ failure to demonstrate “injury-in-fact” and instead simply “stigmatic injury” suggests that the right to religious freedom is fundamental enough that states can permit some dignitary harms for the sake of preserving the right. If FADA were to permit religious Americans to perpetrate material harms against LGBT individuals — the court argued that the bill does not — the ruling would probably have been different.

Regardless of ongoing contention over the definition of marriage, most Americans agree that we ought to be able to coexist peacefully even when we deeply disagree, and this bill works to that end. Progressives must be willing to admit that Mississippi’s FADA isn’t a weapon of discrimination wielded by bigots against LGBT individuals. One can disagree with the bill’s specific policies and still acknowledge that some legal protection is needed for a minority group whose beliefs have fallen out of favor.

At the same time, those on the right who care about the future of religious freedom must continue to testify to the inherent dignity of LGBT individuals, regardless of one’s view of marriage. That will enable more people to understand that religious Americans can fully respect their neighbor even as they are free to live out the tenets of their faith in daily life. Such an understanding, coupled with prudent legal defenses such as Mississippi’s FADA, is the best path forward for true compromise on this issue.


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