Mississippi ‘Religious Freedom’ Law Worries Businesses

By Allen Smith, J.D. Apr 8, 2016
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The Supreme Court’s decision last year legalizing same-sex marriage has not silenced public debate at the state level over social issues involving lesbian, gay, bisexual and transgender (LGBT) individuals.

Just as business leaders spoke out against an anti-LGBT law enacted in North Carolina last month, they are voicing their opposition to a law enacted in Mississippi on April 5 that permits discrimination against LGBT individuals. 

“Discrimination is wrong, plain and simple,” said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y. “By permitting individuals to use their religious beliefs as weapons for discrimination, it [the Mississippi law] will create tremendous conflicts, a lack of inclusion and a violation of many employers’ core values.”

What the Mississippi Law Permits

Phillips said the Mississippi Protecting Freedom of Conscience from Government Discrimination Act permits any adverse employment-related decisions against LGBT citizens if an employer representative strongly believes the following conviction:

  • Marriage is or should be recognized as the union of one man and one woman.
  • Sexual relations are properly reserved to such a marriage.
  • The terms “male” and “female” refer to individuals’ biological sex as determined by anatomy and genetics at the time of birth.

The law also allows entities to refuse to solemnize marriage, to discriminate in real-estate transactions and foster parent custody decisions, and to deny services or accommodations with regard to LGBT individuals.

“I am signing HB 1523 into law to protect sincerely held religious beliefs and moral convictions of individuals, organizations and private associations from discriminatory action by state government or its political subdivisions, which would include counties, cities and institutions of higher learning,” tweeted Mississippi Gov. Phil Bryant, a Republican. “This bill merely reinforces the rights which currently exist to the exercise of religious freedom as stated in the First Amendment to the U.S. Constitution.”

Business Backlash

Large businesses wrote Bryant, Lt. Gov. Tate Reeves and House Speaker Philip A. Gunn, who also are Republicans, asking that the law be repealed.

“We write with concerns about legislation signed this week, HB 1523, which would allow individuals, religious organizations and private associations to use religion to discriminate against LGBT Mississippians in some of the most important aspects of their lives, including at work, at schools, in their family life and more. Put simply, HB 1523 is not a bill that reflects the values of our companies.”

The letter, which was on Human Rights Campaign letterhead, was signed by:

  • Chip Bergh, president and chief executive officer, Levi Strauss & Co.
  • Alex Dimitrief, senior vice president and general counsel, General Electric Co.
  • Sandy Douglas, executive vice president and president, Coca-Cola North America, The Coca-Cola Co.
  • Steve Joyce, president and chief executive officer, Choice Hotels International Inc.
  • Andrew N. Liveris, CEO and chairman of the board, The Dow Chemical Co.
  • Bob Page, chairman and CEO, Replacements Ltd.
  • Walter Robb, co-CEO, Whole Foods Market.
  • Brian Tippens, vice president and chief diversity officer, Hewlett Packard Enterprise.
  • Robb Webb, chief human resources officer, Hyatt Hotels Corp.
  • Tony West, executive vice president, government affairs, general counsel and corporate secretary, PepsiCo.

The Human Rights Campaign is the country’s largest LGBT civil rights organization, with more than 1.5 million members.

“We are disappointed to see the legislature and governor’s office pass discriminatory legislation,” the letter stated. “The business community, by and large, has consistently communicated to lawmakers at every level that such laws are bad for our employees and bad for business. This is not a direction in which states move when they are seeking to provide successful, thriving hubs for business and economic development.”

States’ Negative Response

On April 5, New York Gov. Andrew Cuomo, Vermont Gov. Peter Shumlin, and Washington Gov. Jay Inslee—all Democrats—each banned official state-funded travel to Mississippi,The Huffington Post reported.

“Discrimination is not a New York value. We believe our diversity is our greatest strength, and we will continue to reject the politics of division and exclusion,” Cuomo stated. “This Mississippi law is a sad, hateful injustice against the LGBT community, and I will not allow any nonessential official travel to that state until it is repealed.”

Last month, Cuomo banned nonessential state travel to North Carolina, following its enactment of a law that bars transgender individuals from using restrooms appropriate for their gender identities, excludes sexual orientation and gender identity from state anti-discrimination protections, and prohibits municipalities from extending those protections to LGBT citizens.

Cuomo noted that he banned state travel to Indiana in 2015 after that state’s legislature passed a religious freedom measure that did not prohibit discrimination against LGBT citizens. The Indiana measure was amended to prevent it from being used to discriminate against LGBT individuals, and the travel ban was lifted.

Patchwork of Requirements

If the Mississippi and North Carolina laws are not repealed, “not only will it create a tremendous blow to all the civil rights progress that has been made over the last 10 to 15 years, but it also creates a very confusing array of laws for multistate employers,” Phillips said.

For example, the Equal Employment Opportunity Commission recognizes discrimination based on sexual orientation or gender identity as a form of sex discrimination. Executive Order 11246, which applies to government contractors, prohibits discrimination based on sexual orientation or gender identity. And the Occupational Safety and Health Administration has stated in guidance that employers need to find restroom solutions that are safe and convenient and that respect transgender employees.

“If we allow employers to carve out certain categories of people who they can properly discriminate against, that is the essence of discrimination,” Phillips said.  Employers cannot discriminate based on age, disability, race, color, religion, gender or national origin. “However, the Mississippi and the North Carolina laws do permit individuals and employers to carve out an exception solely based on how an individual defines marriage and how one defines gender,” Phillips noted.

She expects litigation challenging the Mississippi law on constitutional grounds “in that the new legislation attempts to mandate discrimination,” Phillips said. “The Equal Protection Clause in the 14th Amendment requires that states must not deprive any person the ‘equal protection of the laws.’ The courts have interpreted this to mean that the government cannot discriminate against people” without a compelling reason.

Nevertheless, copycat legislation is brewing in other state legislatures. For example, the legislature in Missouri is considering adopting a resolution that would put a similar religious freedom measure on the ballot for voters in November, said Eunice Hyon Min Rho, advocacy and policy counsel for the American Civil Liberties Union (ACLU) in New York City. She said the ACLU is looking at its litigation options in Mississippi and examining carefully to see how it might move forward. The ACLU defends the individual rights and liberties guaranteed by the Constitution.​

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