Wednesday, April 6, 2016

Miss. the point

Mississippi lawyers and "legal scholars" responded to HB1523, the "Protecting Freedom of Conscience from Government Discrimination Act"... which is ironic in itself, as it was drafted by Mississippi lawyers and legal scholars... principally authored and introduced by Speaker of the House, Gunn; juris doctor from MS School of Law... co-sponsor Gipson; juris doctor from MS School of Law... but the fact that we are to take "legal scholars" opinions about this is simply an Appeal to Authority.
however, let's address the scholar's argument against:
We share the view of Justice Kennedy when he expressed that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” and would add that neither can such a desire be justified in the name of religious liberty.
well let me retort with another Supreme Court Justice, referring to the same case [Romer v. Evans] as quoted by the above Justice Kennedy:
The constitutional amendment before us here is not the manifestation of a "'bare ... desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.
do you see what he said?... it is an attempt by a religious community to protect their Constitutionally guaranteed right to practice their sincerely held beliefs and traditions against a "politically powerful" group which wish to revise their religious practices through the cudgel of law-fare... and that is what HB1523 is precisely trying to accomplish... now, we can argue as to the effectiveness of said law to accomplish that weighty task, however what we cannot deny is the concerted attempt by those outside of a religion to force their own mores onto the religion by use of legal pressure and threat of governmental intervention... if there was ever a greater threat to "Separation of Church and State", i surely don't know of one.

and these scholars are using a statement from a case [Romer v. Evans] which fought against discrimination of a "politically unpopular group", in that case the homosexuals... here, we have it turned upon it's head, where the "politically unpopular group" has become not the minority but an entire religion... and HB1523 is saying that "a bare desire to harm" someone who acts in a manner consistent with their religious practices should not "constitute a legitimate governmental interest."

The Establishment Clause of the First Amendment forbids the government from favoring or disfavoring any particular religion or religion in general.
this statement flies in the face of what the legal scholars just said in their own previous statement... here we have numerous cases of the government disfavoring religion in general, yet when HB1523 attempts to remove itself from the fray, suddenly these legal scholars want the government to take sides again!

In Cutter v. Wilkinson, the Court upheld a broad religious accommodation law while explaining that accommodations need not be granted where they “impose unjustified burdens” on third parties or the State. Most recently, in Burwell v. Hobby Lobby, the Court granted a religious accommodation to an employer but repeatedly emphasized in the opinion the fact that employees would, according to the Court, not be harmed.
and then the legal scholars quote two cases where religious liberties were upheld, but they want us to believe that HB1523 will cause government to "tend to express support" by not allowing homosexuals to punish religion for following their beliefs... this is twisted logic... two cases uphold the rights of people and companies to practice their sincerely held beliefs, HB1523 goes out of its way to secure the rights of both homosexuals and religion, yet by passage of this law the government has "expressed support" for one over the other... by supporting the rights of one group, you are not de facto denying the rights of another group... you can, in fact, allow both parties their rights, which is what HB1523, albeit clumsily, tries to do.

Those who will be most harmed by this law are LGBT Mississippians, intersex persons, persons who defy sex and gender stereotypes, and persons who have had sex outside marriage—the most easily-identifiable of whom are unmarried parents and pregnant persons.
oh my God (pun intended).
In many different contexts that will be enumerated below, the law strips Mississippians of applicable antidiscrimination protections in order to accommodate the preferences of religious individuals and institutions.
so what are the "enumerated" contexts which protections will be removed?
Several Mississippi municipalities have passed resolutions opposing discrimination against LGBT people, or protecting LGBT people from some forms of discrimination. As acceptance for LGBT rights continues to grow, other municipalities are likely to follow suit. In addition, some administrative agencies and courts have held that sex discrimination laws are properly interpreted to prohibit discrimination on the basis of sex stereotyping, sexual orientation, or gender identity. In 2013, for example, the 5th Circuit found that the prohibition of sexual harassment in Title VII of the Civil Rights Act protected a male employee whose male co-workers called him “kind of gay” and a “faggot.”
 i'm just going throw a flag here.
By exempting certain religious entities from an obligation to treat all Mississippians equally, HB 1523 effectively sacrifices the equality rights of many in order to accommodate the religious preferences of a few. In some cases, accommodations will also intrude upon Mississippians’ privacy rights. Allowing discrimination based on sexual practices and gender identity could lead employers, housing providers, businesses, and even the state to demand intrusive and unnecessary information from citizens about their sexual histories, practices, and even their private anatomies.
now, i will agree that HB1523 makes a faux pas when it comes to religious organization housing providers... Section 3(1)(c) of the law states that:
The state government shall not take any discriminatory action against a religious organization wholly or partially on the basis that such organization [m]akes any decision concerning the sale, rental, occupancy of, or terms and conditions of occupying a dwelling or other housing under its control, based upon or in a manner consistent with a sincerely held religious belief or moral conviction.
but i don't know of a case where a religious organization has property which is for public sale, rent, or occupancy which it could then discriminate against someone who is LGBT... most religious property is for private sale, rent, or occupancy by persons of the same religion... can someone who does not agree to the Christian regulations of Homes of Grace, a faith based addiction recovery organization, force them to provide them with services?... only by the protections of HB1523 is Homes of Grace protected.

Several provisions of HB 1523 allow government employees—who represent the state and have sworn to uphold the law—to discriminate against LGBT and unmarried Mississippians based on their religious beliefs.
well that's only partially true... the government employees, who have the same Constitutionally guaranteed rights as private citizens, are able to recuse themselves from taking part in activities which they are morally or religiously against... however, HB1523 specifically provides relief to the people who seek those activities... and it provides language which allows those people, generally LGBT persons, if impeded or delayed... Section 3(8)(b) specifically says:
The person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.
see?... the person who is recusing themselves from the process must personally ensure that their recusal does not impede or delay the person seeking relief... the onus is upon us if we wish to recuse ourselves.

Further, it’s unclear what will happen if all clerks at a particular location exempt themselves.
the fairy-tale scenario of "what if everyone recuses themselves" is forcibly denied by the requirement that those who recuse themselves must personally ensure that someone will provide the service!... in fact, Section 8(2) says:
Nothing in this act shall be construed to prevent the state government from providing, either directly or through an individual or entity not seeking protection under this act, any benefit or service authorized under state law.
so they are trying to provide religious freedom on one hand, and protection from discrimination at the same time!

Section 3(4) prohibits the government from taking “discriminatory action” against persons who decline to provide counseling or other medical services based on their religious beliefs about sex, marriage, and gender identity.
the legal scholars' example is "For example, a mental health counselor employed at a public school, whose salary is paid by the government, could refuse to work with LGBT students because of her religious beliefs and keep her job."... aside from the sexist pronoun (how about them apples?), i would argue that this is an extremely unlikely proposition, which could be simply remedied by the school in question by having the counselors make their objections known upfront, and the school would then provide a counselor who does not have that particular objection... but i'd have to throw a flag against myself:
and i'd be right... just because it's improbable, that does not make it impossible... so i will concede that HB1523 falls short on the side of government employees and complete coverage of remedies... the law should have provided the same protections provided in Section 3(8) to those in Section 3(4)... but i would argue that the reverse side of the coin would be just as offensive:
"For example, a doctor employed at a public hospital, whose salary is paid by the government, could refuse to perform abortions because of her religious beliefs and lose her job."
however, a poorly constructed law does not negate the truth which stands behind the need for such a law... there are numerous examples of intolerance of religion by those who are promoting LGBT causes... this law was crafted not to deny rights, but to protect the rights of individuals who are being assailed... simply acting in accord to one's faith has become punishable by extremists who disagree with the tenets of the religion.

but all of this misses the point of HB1523... if religion were not under attack, this type of legislation would not have been necessary.

Mississippi Lawyers, Legal Scholars Respond to HB1523 | JFP Mobile | Jackson, Mississippi
HB1523 - Protecting Freedom of Conscience from Government Discrimination Act
Romer v. Evans
Cutter v. Wilkinson
Homes of Grace

No comments:

Post a Comment