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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Saturday, April 9, 2016

Religious Liberty Laws and Marital Equality

Our readers know this blog has covered the marital equality civil rights struggle over the past 8-years. Although the SCOTUS definitively ruled on the issue in the Obergefell v Hodges decision, the struggle continues.

In the wake of Obergefell -cloaking marital equality with constitutional Due Process protections- a crop of state laws have been proposed collaterally challenging the High Court's ruling. Mississippi comes to mind, with its recently enacted House Bill 1523.

The new law essentially creates a work-around to the constitutional ban on state laws that proscribe marital equality, same-sex marriage and same-sex adoption. This statute allows government employees -including, presumably, state judges- businesses and social workers to invoke their personal religious beliefs in declining to sanction, say, a same-sex marriage or adoption.

Referencing the pluralism inherent in Mississippi's Religious Freedom Restoration Act of 2014, the statute's preamble acknowledges the inherent conflict between marital equality and religious freedom. Here is the pertinent language contained in the new law:
Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 3 of this act. Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. 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.
The statute also provides a cause of action against the state for those aggrieved. Amazingly, this law sailed through both state houses in February and Republican Governor Phil Bryant, a vocal proponent of religious liberty, signed the bill into law last Tuesday.

Legal challenges to the statute cannot be far behind. Indeed, the preamble to the statute invokes these inchoate lawsuits destined for Mississippi courtrooms.

We here at the Law Blogger believe these lawsuits, filed both against the state as provided in the act, and those challenging the constitutionality of the new law, will be immediate.

Post #534

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