I have noted a the 1996 U.S. Supreme Court case in Romer v. Evans in a number of posts in the wake of North Carolina's foul HB2 and Mississippi's even more heinous HB1523. Why? Because Romer struck down a Colorado constitutional amendment that sought to do more or less exactly what these two animus motivated statutes do: made LGBT citizens a targeted class that would be deprived of non-discrimination protections. The statutes go even farther, however. They set one set of religious belief up as the preferred and protected belief enforced against all citizens, something the establishment clause of the First Amendment of the United States Constitution prohibits. Why would Republican legislators be oblivious to these brick walls that are facing their legislative handiwork? In my view there are at least two reasons: (1) their sole interest is in prostituting themselves to the Christofascists to boost the turn out of knuckle dragging Bible thumpers, and (2) many of these legislators are less than bright. Given the current base of the GOP, ignorance is celebrated and there is a growing sense among Christofascist (who tend to control primaries) that they are above the law. The result has been a lowering of the caliber and intelligence of elected Republicans. A piece in Think Progress looks at the idiocy and incompetence of Mississippi Republicans which by extension applies to all of those - including those in Virginia - who are pushing license to discriminate laws. Here are highlights:
Here’s a pro tip: if you’re going to enact a law intended to enable discrimination, you might want to make at least some minimal effort not to emulate other laws the Supreme Court has already struck down.
And yet, the lawmakers behind Mississippi’s HB 1523, legislation permitting a broad range of discrimination against LGBT people in that state, violated one of the cardinal rules of drafting discriminatory laws — don’t be so flamboyant about it!
Before the mid-1990s, the Supreme Court largely ignored — or even actively shut down — cases brought by parties alleging anti-gay discrimination. That changed with the Court’s 1996 decision in Romer v. Evans, which struck down a Colorado constitutional amendment that singled out gay men, lesbians and bisexuals for inferior treatment under the law. Labeled as a ban on “Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation,” the amendment forbade any arm of Colorado government from extending civil rights protections “whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.”
The primary sin of this amendment, as Justice Anthony Kennedy explained for the Court, was that it made gay people and bisexuals into a kind of underclass who were not even permitted to seek out civil rights protections through the ordinary political process. “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres,” Kennedy wrote. “The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”
“Laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Kennedy added. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”
Which brings us back to HB 1523. The Mississippi law, like the Colorado amendment, explicitly singles out LGBT people “for disfavored legal status.” The law begins with a declaration that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that . . . marriage is or should be recognized as the union of one man and one woman” and 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” (additionally, the law also purports to give special rights to people who object to extramarital sex of all kinds). Though dressed up somewhat in the rhetoric of religious liberty, this declaration is about as explicit a statement as Mississippi could have mustered expressing animus towards LGBT individuals. It specifically identifies same-sex couples and trans people as the “solitary class” disabled by the law.
LGBT rights cases has moved almost entirely in one direction since Romer. That fact, combined with HB 1523’s explicit language identifying it as an unambiguous permission slip to engage in discrimination, will likely be enough to shut the law down once it starts to limit the rights of LGBT people in that state.
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