Circuit Court Win for Religious Freedom on Gay Marriage

The 5th Circuit ruling allows a Mississippi law to go into effect that protects the religious liberty and conscience rights of those who hold traditional marriage beliefs.

This is a reasonable bill. It protects the consciences of people who hold to the historic definition of marriage in the aftermath of the Supreme Court redefining marriage, and it does so while avoiding the awful outcomes that critics fear. The bill provides that the government cannot punish, fine, or coerce specific people and organizations, in specific contexts. It doesn’t harm anyone.

 

The 5th U.S. Circuit Court of Appeals ruled unanimously on June 5, 2017 that a Mississippi law that protects religious liberty and the rights of conscience in light of the redefinition of marriage may go into effect.

In the decision, the circuit court overruled a previous judgment from a district court judge who had declared the Mississippi law unconstitutional for violating the Establishment Clause and the Equal Protection Clause.

But as the circuit court pointed out, the challengers to Mississippi’s law lack standing because they “have not clearly shown injury-in-fact.” In other words, they did not show how the Mississippi law protecting liberty for people who hold to the pre-Obergefell v. Hodges definition of marriage harmed them.

The court explained that the “failure” of the “plaintiffs to assert anything more than a general stigmatic injury dooms their claim.”

While the ruling focused on the lack of standing of the plaintiffs, there are plenty of reasons to rule in favor of the constitutionality of laws like Mississippi’s on the merits.

As Sherif Girgis and I explain in our new book, “Debating Religious Liberty and Discrimination,” there is nothing scandalous about protections for particular views that are at odds with those on which the government acts.

When the government takes Americans to war, exceptions cover pacifists. When the government guarantees abortion, exceptions cover pro-lifers. These exemptions don’t amount to establishments of any religion, and neither do laws protecting dissenters after Obergefell.

Indeed, as law professor Richard Epstein explains, the Establishment Clause—meant to “knock down state coercion for religion”—can’t be used to invalidate “a statute whose whole purpose was to insulate private parties from any form of coercion.”

So, what does the Mississippi law do? As previously explained at The Daily Signal:

  • Religious organizations, like churches, cannot be forced to use their facilities to celebrate or solemnize weddings that violate their beliefs.
  • Religious convents, universities, and social service organizations can continue to maintain personnel and housing policies that reflect their beliefs.
  • Religious adoption agenciescan continue to operate by their conviction that every child they serve deserves to be placed with a married mom and dad.
  • Bakersphotographersflorists, and similar wedding-specific vendors cannot be forced to use their talents to celebrate same-sex weddings if they cannot do so in good conscience.
  • State employees cannot be fired for expressing their beliefsabout marriage outside the office, and individual state clerks can opt out of issuing marriage licenses so long as no valid marriage license is delayed or impeded.
  • Counselorsand surgeons cannot be required to participate in gender identity transitioning or sex-reassignment surgeries against their faith and convictions, while guaranteeing that no one is denied emergency care or visitation rights.
  • Private businesses and schools, not bureaucrats, get to set their own bathroom, shower, and locker room policies.

This is a reasonable bill. It protects the consciences of people who hold to the historic definition of marriage in the aftermath of the Supreme Court redefining marriage, and it does so while avoiding the awful outcomes that critics fear. The bill provides that the government cannot punish, fine, or coerce specific people and organizations, in specific contexts. It doesn’t harm anyone.

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