A three-judge panel of the Fifth Circuit Court of Appeals has lifted the injunction that had temporarily put on hold the enactment of Mississippi’s HB 1523, a/k/a the cynically misnamed, all-around awful and obviously unconstitutional “Protecting Freedom of Conscience From Government Discrimination Act” (“PFCGDA”).
It’s important to note at the outset that the Fifth Circuit did not rule on the merits, i.e., did not find that HB1523 is constitutional. Rather, it ruled that the plaintiffs (ministers, LGBT activists, and others) lacked standing to bring the action, as none of them could show any present injury-in-fact. The Court left open the possibility that it might revisit the constitutionality of the statute in the future, when someone actually injured by it brings suit.
The ruling overturned an earlier decision by U.S. District Judge Carlton Reeves, who found not only that the plaintiffs did have standing but that the law was plainly, almost laughably unconstitutional, inter alia a blatant violation of the Establishment Clause. I strongly recommend reading the District Court’s opinion.
What happens now is that the bill goes into effect in Mississippi, although the plaintiffs might petition the Fifth Circuit for an en banc hearing and a ruling by the full appellate panel, and it’s almost certain to reach the Supreme Court either way.
In light of today’s decision, I thought it might be helpful to repost a diary I wrote about HB 1523 last year when it was first passed. Although there is no question that it has the potential to enable some forms and instances of discrimination against LGBT persons, and do harm to the LGBT community in general, what it doesn’t actually do is provide a legal defense to a private commercial merchant who is sued for discriminating against a customer because that customer is LGBT, under an operative anti-discrimination statute (which Mississippi doesn’t have in any event).
Today’s ruling is a setback, but a minor one. Although Republicans in the states and in Washington will continue to try, I am entirely confident that in the end, “religious beliefs” will never, ever, ever, ever be a complete standalone defense to a private civil lawsuit in any court in any U.S. jurisdiction.
[April 2, 2016]
Mississippi’s new "Protecting Freedom of Conscience From Government Discrimination Act” (hereinafter the “PFCGDA”) is a bit like the one Indiana tried to pass a year ago, which at the time I concluded would create a de facto, but not de jure, license for “religious” merchants to discriminate against LGBT customers. This one tries a lot harder to create that de jure license, and as a result would probably be a lot more successful in creating the de facto license if it ever actually takes effect. It does some things the Indiana law didn’t do and gets much, much closer to immunizing “religious” wedding vendors from civil suits under anti-discrimination laws that protect LGBT persons. In the end, however, it won’t work, for essentially the same reasons I laid out the last time.
The language of the PFCGDA, including its title, is a lot more earnest — and as a result a lot more disingenuous — than the Indiana law which merely borrowed its name from the cynically-titled federal Religious Freedom Restoration Act (“RFRA”). It tries really, really hard to protect those who have “sincerely-held religious beliefs or moral convictions” that, inter alia, “[m]arriage is or should be recognized [exclusively] as the union of one man and one woman,” from “discriminatory action” by “the state government.”
There’s a lot to unpack there, and in the PFCGDA itself, which you can read in its entirety here. That the PFCGDA purports to enable or excuse commercial discrimination by casting legal prohibitions thereof as “discriminatory action” by “the state government” (or “government discrimination,” as in the title) is richer than a good crème brulée, but that’s really beside the point. The PFCGDA, like so many of these purported “religious freedom” bills, is a convoluted attempt to exempt “religious” merchants and wedding vendors from anti-discrimination laws that protect LGBT persons, but turns out to be a solution in search of a problem, an awful lot of words that don’t accomplish much that’s not already embedded in the law, and that ultimately fail to accomplish the one thing its supporters want.
Before we look at the Mississippi bill in detail, consider this: if a state really wanted to enable, excuse or sanction the refusal by “religious” wedding vendors to cater or otherwise provide products and services for same-sex wedding receptions, or other events they say are “against their religion,” there are two simple, straightforward ways to do it: (1) create a complete, standalone, affirmative defense to a civil lawsuit under the operative anti-discrimination statute, allowing the defendant to avoid liability by asserting his religious beliefs; and/or (2) pass a state constitutional amendment providing that sexual orientation shall not be a protected characteristic under any state or local anti-discrimination law.
No state to my knowledge has actually done or attempted either of these things, and I expect none ever will. As for (1), even if a trial court accepted it which is highly doubtful, it would not survive a constitutional challenge as it would be a clear and rather blatant violation of the Establishment Clause; viz., allowing a “religious” defendant to escape liability on his own say-so where a non-religious defendant would be liable for the exact same conduct under identical circumstances. And (2) is too obvious in its desire and intent to target a particular segment of the population for discrimination by expressly excluding them from any legal protections or even the possibility of being protected, and would therefore also likely not survive a constitutional challenge. We’ve seen states pass laws saying that local municipalities can’t protect classes that aren’t protected statewide, but none that explicitly identify a class that is to be purposefully left unprotected.
So, given that the states can’t (or won’t) do this the easy way, what’s left? How can they give “religious” merchants an excuse or a license to discriminate without explicitly exempting them from anti-discrimination laws or expressly targeting the group(s) we all know they want to discriminate against? Answer: They have to pretend that they’re “protecting religious liberty,” the problem of course being that religious liberty is not in any way threatened by either same-sex marriage or by state and local anti-discrimination laws. And when you have to pretend that something is about what it really isn’t, the results are usually, umm… confounding. As deplorable as the motives may be, you have to applaud the effort; it takes a lot of chutzpah to try to design a law to do one particular thing that will not, that cannot, actually do that one particular thing. Trying to “protect” [X] from [Y] where [Y] does not and cannot actually threaten [X] is certainly no easy task.
Let’s have a look at what Mississippi did. I'm going to transcribe a couple of key provisions here; note the highlighted language and see if you can follow me. Start with the definition of what the PFCGDA is purportedly trying to protect:
SECTION 3. The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.
OK. We can focus on § 3(a) for now, and leave (b) and (c) aside. This is unusual, I think, for a law to expressly endorse or purport to protect specific, discrete religious beliefs about specific, discrete subject matter, as opposed to religious practice or exercise more generally. That alone may violate the Establishment Clause. But let’s leave that aside and skip to Section 4, paragraph 5, and see what the Mississippi legislature thinks it’s protecting those specific, discrete “religious beliefs [and] moral convictions” from. Note again the highlighted language:
(5) The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 3 of this act:
(a) Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or
(b) Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.
The operative provisions in the PFCGDA almost all start with the same language, viz., "the state government shall not take any discriminatory action against..." How will this enable and excuse the kind of ad hoc discrimination that these "Christian" merchants and their conservative allies want, and that the LGBT community and its liberal allies oppose? What sort of "discriminatory action" could "the state government" possibly take against a photographer, poet, videographer, deejay, wedding planner, printer, publisher, florist, dressmaker, baker, pastry artist, assembly-hall lessor, limo driver or jeweler who refuses to provide "marriage-related goods or services" to Elton John and David Furnish?
Let's assume that commercial discrimination on the basis of sexual orientation or gender identity is not against the law in Mississippi (i.e., that these are not protected classes). Let's also assume for the sake of argument that there are local ordinances to that effect in some, but not all, municipalities in that state. The question remains: What sort of "discriminatory action" by "the state government" is this legislation purporting to prohibit, and thereby protect those with “sincerely-held religious beliefs or moral convictions” about who may or may not get married?
Anti-discrimination statutes and ordinances typically create private rights of action, i.e., authorize civil lawsuits against merchants who discriminate against customers based on protected characteristics such as race, gender, religion, nationality, and in some jurisdictions, sexual orientation. Meaning, they give the victims of such discrimination the option to sue for damages. Generally speaking, a private civil lawsuit is not an “action” (let alone a “discriminatory action”) taken by “the state government,” even where the right of action is created by statute. The victim has the option to sue; the statute is enforced by private action, not state action.
The PFCGDA attempts to dispense with this problem by first doing what the Indiana RFRA initially attempted to do, with respect to private civil suits:
SECTION 6. (1) A person may assert a violation of this act as a claim against the state government in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state government, any private person or any other party.
What that basically means is if a merchant is sued under a local anti-discrimination ordinance, he can defend the lawsuit by claiming a violation of the PFCGDA, and/or implead the state or municipality and seek indemnification for a violation of the PFCGDA. But as noted above, only the “state government” can violate the PFCGDA, not a private citizen. The plaintiff can’t violate the PFCGDA by suing; the state or local municipality can violate it, but all it did was pass the anti-discrimination law or ordinance, including sexual orientation as a protected characteristic, in the first place. As I noted previously with respect to the Indiana RFRA, no competent court is ever going to find that a state legislature violated its own law, let alone one it hadn’t enacted yet, by enacting an anti-discrimination statute that protects LGBT persons in the commercial marketplace.
Note carefully that § 6(1) does not create a defense to a civil action based on the “sincerely held religious beliefs or moral convictions” set forth in § 3, supra. It creates a defense to a civil action based on a violation of the PFCGDA; the defendant must assert and demonstrate the latter, not the former, in order to avoid liability and win a dismissal. And only the state government can violate the PFCGDA; a private citizen can’t.
Or can one?
Indiana didn’t quite go there, but Mississippi did. In Section 11:
(2) "State government" means:
(a) The State of Mississippi or a political subdivision of the state;
(b) Any agency of the state or of a political subdivision of the state, including a department, bureau, board, commission, council, court or public institution of higher education;
(c) Any person acting under color of state law; and
(d) Any private party or third party suing under or enforcing a law, ordinance, rule or regulation of the state or political subdivision of the state.
Whoa.
Think about that for a second: This is a state statute establishing that any private citizen who files a civil lawsuit under any other state or local statute, is “the state government.” Whether the state can deputize private citizens this way is something I’ll have to research separately, but this is a leap I don’t think the law has ever taken before. As noted, a private civil suit is not state action simply because the right of action and remedy are authorized by law, nor by virtue of the state’s providing courts of law in which to resolve legal disputes between private citizens. Filing a lawsuit to vindicate one’s own legal rights doesn’t make a private citizen an agent of the state, let alone its equivalent. There is something very, very wrong with this provision.
But, setting that aside, a private citizen can violate the PFCGDA by filing a civil lawsuit, and thereby “take discriminatory action against” a person with “sincere religious beliefs or moral convictions” about marriage. If you think too much about the logical conundrum this presents, your brain might start to hurt. The state or a local municipality passes a statute or ordinance giving private citizens the affirmative right to sue a commercial merchant for damages if the merchant refuses to engage in commerce with him on the basis of his protected characteristic. By exercising that express legal right against a merchant with “sincere religious beliefs or moral convictions” about marriage, the plaintiff has not only broken the law but committed a “discriminatory action” against the defendant merchant. The merchant breaks one law by discriminating against the customer, then the customer breaks another law and discriminates against the merchant by suing the merchant for discrimination, which the first law expressly gives him the right to do.
Hello?
How on earth can filing a discrimination lawsuit pursuant to an express statutory right be a “discriminatory action” by the plaintiff against the defendant? How can an anti-discrimination law be a “discriminatory action” in itself?
The answer is: It can’t. And under the PFCGDA, it still can’t. The Achilles heel of the PFCGDA lies in Section 5, which defines "discriminatory action" thusly; bear in mind that “state government” includes, and could mean, a private citizen:
SECTION 5. (1) As used in this act, discriminatory action includes any action taken by the state government to:
(a) Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from taxation of any person referred to in Section 4 of this act;
(b) Disallow, deny or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by such person;
(c) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, or other similar benefit from or to such person;
(d) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any entitlement or benefit under a state benefit program from or to such person;
(e) Impose, levy or assess a monetary fine, fee, penalty or injunction;
(f) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any license, certification, accreditation, custody award or agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to any person; or
(g) Refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially alter the terms or conditions of employment, or retaliate or take other adverse employment action against a person employed or commissioned by the state government.
Note first what is not in there: File a private civil lawsuit for damages under a local anti-discrimination ordinance. What is also not in there: Pass a law or ordinance authorizing such lawsuits. Even if we take into account that “the state government” includes (or means) the plaintiff in a private lawsuit, there is nothing here to suggest that the act of filing the lawsuit is a “discriminatory action,” nor that the existence of the ordinance itself is a “discriminatory action.” Most of the “discriminatory actions” described here are not actually discriminatory if that word is to have any meaning at all, and more importantly most of them are not things that one private citizen can do to another.
But let’s look closely at the highlighted provision, § 5(1)(e), just to be sure:
(e) Impose, levy or assess a monetary fine, fee, penalty or injunction;
It might seem at first blush that this provision targets discrimination lawsuits and/or anti-discrimination laws, but it really doesn’t. Legal remedies in civil suits are not “fines” or “penalties;” that includes statutory damages, which courts have held are remedial rather than penal in nature. They are also not “fees,” which are monies paid to the government to cover the costs of discrete governmental services (e.g., licensing fees, recording fees, land-use fees, &c.). An award of damages by a jury or a court is not the “impos[ition], levy[ing] or assess[ment of] a monetary fine, fee [or] penalty”, nor is the enactment of an anti-discrimination ordinance or the filing of a lawsuit pursuant thereto.
Which leaves us with “injunction,” which only a court and not a legislature or state agency can issue (although it can be enforced by police). Anti-discrimination laws typically do not provide for equitable relief; Elton and David can’t go to court and get an injunction ordering the caterer to cater their wedding. [Yet another reason why the “force them to act against their religion” narrative is false.] All they can do is sue for damages.
So, at the end of the day, the PFCGDA fails to enable, excuse or sanction the one thing its conservative supporters and allies want it to enable, excuse or sanction: The refusal of a “religious” wedding vendor to cater or provide goods or services for a party celebrating a same-sex wedding. If a vendor is sued for discrimination under an operative local ordinance, and attempts to defend himself by citing the PFCGDA, he will lose, as neither he nor the court will be able to identify any “discriminatory action” taken against him by “the state government” as defined by the statute.
The only remaining question is: Why? As discussed above, if state legislators really wanted to give “religious” wedding vendors a Get-Out-of-Gay-Weddings-Free card, they could. They haven’t yet. Why not? Is this just bad drafting? Was the bill written by non-lawyers, for non-lawyers? Or is this a true Herculean feat of linguistic legerdemain, valiantly attempting to give the impression that “religious” wedding vendors are immune from being sued by The Gays while carefully, skillfully and deftly avoiding actually making such immunity a legal reality?