Decidedly undecided: the Supreme Court’s silence in the shadows of Obergefell

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On June 26, 2015, the Supreme Court handed down one of the most controversial decisions of the twenty-first century.  In a narrow 5-4 opinion, the Court held that the Fourteenth Amendment guarantees the right to marry as a fundamental liberty, and that this fundamental liberty applies to same-sex couples in the same manner as opposite-sex couples.

Less than one year after Obergefell v. Hodges, Mississippi Governor Phil Bryant signed into law the “Protecting Freedom of Conscience from Government Discrimination Act” (“Act”).  The Act provides private individuals and government workers far-reaching abilities to lawfully discriminate against lesbian, gay, bisexual, and transgender people on religious grounds.

According to a legal analysis released by Columbia University shortly after the law was enacted, the Mississippi law permits government clerks to opt out of certifying same-sex marriages and allows businesses to deny wedding-related services to same-sex couples if their marriage contravened “a sincerely held religious belief or moral conviction.”  Further, the Act allowed religious organizations to engage in job and housing discrimination against LGBT people and allowed public school officials to refuse to work with LGBT students.  The Act affected heterosexual persons, too, as it permitted the potential scenario where a religious university could rightfully fire a single mother, who supports her family on her own, based on religious opposition to sex outside of marriage.

The plaintiffs, many of whom were gay, had not yet been injured.

Several Mississippians immediately showed opposition to the Republican-backed law.  A federal district court judge issued an injunction just before the law took effect in 2016; however, the plaintiffs challenging the constitutionality of the law had a fundamental issue on appeal in the Fifth Circuit—they lacked standing.  The plaintiffs, many of whom were gay, had not yet been injured.

Governor Bryant was quick to announce his approval of the Fifth Circuit’s ruling, stating, “As I have said all along, the legislation is not meant to discriminate against anyone, but simply prevents government interference with the constitutional right to exercise sincerely held religious beliefs.”  Many other Mississippians disagreed with the Governor and claimed the new law was a “black eye” in the self-claimed “Hospitality State.”  Nevertheless, the law took full effect in October of 2017 and standing was no longer an issue.

[T]he Court was seemingly cornered to address the problem by resolving the conflict between long-standing Establishment Clause jurisprudence, and the infant, landmark case of Obergefell.

Gay rights’ advocates quickly set their eyes on the Supreme Court.  Their written arguments labeled the Mississippi law as unconstitutionally endorsing religious beliefs that could lead to discrimination.  In response, the Governor’s attorneys submitted written arguments claiming that the law is merely protecting people from being penalized for refusing to participate in what they consider to be “immoral” activities, including same-sex marriage.  As 2017 was ending, the Court was seemingly cornered to address the problem by resolving the conflict between long-standing Establishment Clause jurisprudence, and the infant, landmark case of Obergefell.

The First Amendment poses an issue, as it states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Constitution forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another, including non-religion.  The plaintiffs are vehemently pointing to the Act’s protection of religious-centered discrimination as Mississippi’s “Achilles’ heel,” as even the law’s supporters are referring to it as the “religious liberty law.”

While gay rights’ advocates are relying on the Establishment Clause to refute the imposition of religious values via state law, is the Governor’s position not also supported by the second protection of free exercise?  The entire argument supporting the law is founded on the premise that individuals should not be “[living] in fear of losing their careers or their businesses simply for affirming marriage as a husband-wife union.”

With positive law to support aspects of both parties’ arguments, the Court found itself hard-pressed to resolve the constitutional battle tangled between establishment and individual freedoms.  The most concerning and complex piece of the case at hand, however, has nothing to do with the Bill of Rights or any other Constitutional provision.  Rather, the greatest challenge in obtaining resolve lies in the fact the Supreme Court declined to hear the case.

“[A] new round of challenges is expected from residents who have been denied service, and the issue could come back to the Supreme Court’s doorstep.”

The Court did not give a full explanation of its decision not to hear the case;  however, the rejection of the case does not necessarily mean an end to Mississippians’ challenges.  In fact, with the Act in full effect, “a new round of challenges is expected from residents who have been denied service, and the issue could come back to the Supreme Court’s doorstep.”  Lambda Legal and the Mississippi Center for Justice, the groups representing the plaintiffs, have vowed to continue the fight.

Lambda attorney Beth Littrell has accepted the Court’s silence, but insists “The Supreme Court’s decision not to review this case is not an endorsement of HB 1523 or the wave of similar discriminatory laws across the country, and it does not change what the court clearly ruled in Obergefell v. Hodges… that same-sex couples and their families should be treated like other families in this country and not to do so is harmful and unconstitutional.”

Several other LGBT groups have since denounced the Supreme Court’s “punt” on the allegedly discriminatory Act. CEO and president of GLAAD, Sarah Kate Ellis, stated, “While freedom of religion is a fundamental right, it should never give people the right to impose their belief on others and openly discriminate against others in the name of religious exemptions,” and made clear the gay rights groups are only seeking what Obergefell ensured: equal opportunity and protection.

According to Masen Davis, CEO of Freedom for All Americans, the Supreme Court’s decision not to review Mississippi’s law is but a missed opportunity to strike down one of the nation’s more extreme anti-LGBT provisions.  With harassment and discrimination on the line, Davis suggests that the law inherently fails to honor religious freedom, and instead enables people to use religion as a license to discriminate.

While the end of 2017 and start of 2018 may have been painful for gay rights communities and supporters, the interests of Mississippians have not been entirely abandoned by the Court.  The Supreme Court is due to rule on a related issue by the end of July, regarding the case of a Colorado baker refusing to make a wedding cake for a gay couple on the basis of his conservative Christian beliefs. Was he within his constitutional rights?

It is possible the Court will duly resolve the concerns of the plaintiffs of Mississippi by answering such a question.  Like the baker, are other retailers and service providers being “unconstitutionally compelled” to speak as artists, thereby “branding” owners acting on behalf of LGBT persons?  Justice Ruther Bader Ginsburg made crystal clear her answer to such a question when the baker’s case was argued last December. “At the wedding ceremony, the speech is of the people who are marrying, and perhaps the officiant,” Justice Ginsburg said.  “But who else speaks?”