by Max Brantley
The genius of the lawsuit against HB 1523, which was brought by Windsor mastermind Roberta Kaplan, is its fusion of fundamental yet typically distinct constitutional principles: “the guarantee of religious neutrality and the promise of equal protection of the laws.”You may replace HB 1523 in every reference with the law Arkansas's legislature and governor approved and you have a directly analogous situation with the Arkansas effort to preserve legal discrimination against LGBT people. Hurry the lawsuits.
Mississippi argued that its law promoted religious liberty. Quite the opposite, Reeves explains: In reality, HB 1523 “establishes an official preference for certain religious beliefs over others,” a quintessential violation of the Establishment Clause. Anti-LGBTQ religious beliefs are explicitly favored; adherents to those beliefs receive a special right to discriminate that is unavailable to all others. “Persons who hold contrary religious beliefs are unprotected,” Reeves explains; “the State has put its thumb on the scale to favor some religious beliefs over others
.”This favoring of certain religious sects is especially problematic because it “comes at the expense of other citizens,” namely LGBTQ people. The Supreme Court has found that laws that advance religious beliefs in a way that burdens those who don’t share those beliefs violate the Establishment Clause. HB 1523 is guilty of this sin, because it gives anti-LGBTQ Mississippians “an absolute right to refuse service to LGBT citizens without regard for the impact on their employer, coworkers, or those being denied service.
”By uniquely burdening the LGBTQ community, Reeves notes, HB 1523 also violates the Equal Protection Clause of the 14th Amendment. Under the Supreme Court’s decision in Romer v. Evans, laws motivated by “animus” toward sexual minorities are unconstitutional. And as Reeves demonstrates in his decision, it is beyond rational belief that HB 1523 was motivated by anything but “a bare desire to harm” LGBTQ people.