July 1, 2016
Judge Reeves’ ruling striking down individual rights protections in Mississippi’s HB 1523 is a travesty for the rule of law and shows what happens when the judicial process justifies the means with the ends. It is quite unfortunate that the judge can’t see (despite the fact that no same-sex couple has been denied anything by Mississippi in the wake of Obergefell v. Hodges) that the law merely protects people from government coercion. It is doubly unfortunate that in his ruling, the judge’s denigrating and dismissive references to “Christians” exhibits an animus toward the people he is entrusted to rule over that is barely bottled up.
On the issue of standing, Judge Reeves can try to cover his reasoning in a legal swamp all he wants, but at the end of the day, his ruling pulls the law to its breaking point in order to find an actual, real injury to anyone at all. In reality, no one has been concretely affected by this law. That’s why he has to contort the matter to find an injury where someone “feels” affected. Yes, feelings get hurt in a democracy (this happens innumerable ways every day, which average American understand) but that’s part of living in a diverse country. Despite citing the Supreme Court’s Establishment Clause decision Town of Greece v. Galloway multiple times, he conveniently forgot to cite Justice Kennedy’s reminder in that case that “offense . . . does not equate to coercion.” Instead, Judge Reeves has opted in essence to deny the people their own right to govern. With such rulings, one can’t blame them with being fed up with federal judges and the elites who think like them.
Judge Reeves errs further in searching the woodwork to find constitutional violations. He admitted “discerning the actual motivation behind a bill can be treacherous.” He should have followed his own admonition. Instead, he somehow finds HB 1523 to be a violation of the Establishment Clause, despite the fact that it imposes no coercive religious requirement on anybody! (Town of Greece again relevant here). He claims that since the law doesn’t protect every type of Christian religious belief out there, it’s somehow invalid.
Yet amazingly, at the same time, the court dismisses the fact that members of non-Christian faiths also oppose same-sex marriage and would be protected by HB 1523 by arguing that those people don’t really believe their own religion:
Every group has its iconoclasts. The larger the group, the more likely it will have someone who believes the sun revolves around the Earth, a doctor who thinks smoking unproblematic, or a Unitarian opposed to same-sex religious marriage. But most people in a group share most of that group’s beliefs.
Aside from improperly delving into doctrine itself, the court’s statement is irrelevant, and by recognizing that some non-Christians would be protected by this law, it contradicts its entire grounding for this decision (that this is really just about the protection of Christians).
Under Judge Reeves’ thinking, any tailored conscience or religious rights protections would be invalid.
Additionally, his analysis of federal conscience protections is just flat wrong. He says the analogy of HB 1523 to these protections in 42 U.S.C. § 300a-7 is not appropriate because they are “neutral” in that they protect pro-life and pro-abortion doctors, and cites to subsections c, d, and e of the statute. However, only subsection c makes reference to protection of both sides of the issue. Subsections d, e, (and a) protect doctors and facilities opposed to abortion from being forced to participate in it, and do not make mention of any pro-abortion views. The fact is that these conscience protections and similar types of exemptions have long been a part of our pluralistic society, and show how diverse people can live side-by-side while conscience is honored. When conscience is threatened, it can be protected. Yet Judge Reeves would stifle consciences that need protection in the name of protecting against some imaginary harm. He might be asked: Exactly whose consciences are being violated that he feels need additional protection in HB 1523?
In the midst of this long, contorted, and unfortunate ruling (supposedly based in part on the Establishment Clause), Judge Reeves could have at least cited the Supreme Court’s well-known pronouncement on this principle in West Virginia State Board of Education v. Barnette decades ago:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Instead, he has imposed his own orthodoxy on them and heaped even more disenfranchisement on the heads of the people of Mississippi. “You may not like Obergefell,” the judge seems to say, “but I’m not even going to allow you to protect your own liberty in the face of it.”