McDaniel: HB 1523 Doesn’t Choose Sides in Debate Over Same-Sex Marriage

By Senator Chris McDaniel

As an initial matter, we are all sinners, and I love you all nevertheless. I am here only by the grace of God, ashamed of my own shortcomings, and not in judgment of anyone. But HB 1523 doesn’t address sin. It doesn’t judge. And it doesn’t choose sides in the ongoing cultural debate over homosexual marriage.|

Anyone who claims HB 1523 is discriminatory is not being sincere.

Based on the flawed legal reasoning behind the Obergefell v. Hodges decision, Mississippians are faced with the concept known as conflicting rights.

Let’s discuss.

Assuming that homosexual marriage is a fundamental right (per the U.S. Supreme Court), then on one side of the equation, there are four (4) other conflicting rights that would be implicated by state action: (a) freedom of conscience, (b) freedom of contract, (c) private property control and (d) freedom of assembly. On the other side stands the judicially created right of homosexual marriage, a single right that would be implicated by state action.

So, for perspective, the ongoing debate pits 4 rights vs. 1 right.

Four are fundamental and essential, specifically protected by the language or foundational principles of the U.S. Constitution. Time and time again, the courts have referenced the specific Constitutional language protecting such rights or have found each of the four to be “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

The same cannot reasonably be said for the newly created right of homosexual marriage. To explain, it is based on the political musings of Justice Kennedy and the liberal “living Constitution” faction of the Supreme Court, those justices not constrained or defined by the Constitution’s language. Instead, the new “right” created by this side of the Court depends on a specious legal theory known as Substantive Due Process and an irrational interpretation of the 14th Amendment’s Equal Protection Clause to take sides in the existing culture war and create previously non-existing rights pushed by political special interests.

Making matters more complicated for the new right, reliance on the Supreme Court’s decision in Loving v. Virginia, in which the Supreme Court struck Virginia’s anti-miscegenation statute as violating interracial couples’ fundamental right to marry, appears to be misguided. In Loving, the Court examined the long recognized right to marry, but the case did not involve expanding the traditional definition of marriage as being between a man and a woman. In discussing the importance of marriage, the Supreme Court has often linked marriage to procreation. Thus, in recognizing a fundamental right to marry, it has only contemplated marriages between persons of opposite sexes-persons who had the possibility of having children with each other.

Despite Justice Kennedy’s attempt to prove otherwise, it’s difficult to understand how this newly created right could possibly be “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” This is especially true, considering the practice of homosexual marriage was specifically prohibited at the time of the Constitution’s adoption and later at the time of the 14th Amendment’s addition.

But I digress. For the sake of this discussion, I will concede that Justice Kennedy and the Court have created the new right, and it is entitled to Constitutional protection, like the other four.

And yet, lost in this debate is precisely what the left wishes to avoid: the bill is not discriminatory; and by definition, it cannot be, because state action is generally required for any violation of the above-referenced rights.

The state action requirement stems from the fact that the constitutional amendments which protect individual rights (especially the Bill of Rights and the 14th Amendment) are mostly phrased as prohibitions against government action. For example, the First Amendment states that “[c]ongress shall make no law” infringing upon the freedoms of speech and religion. Because of this requirement, it is impossible for private parties (citizens or corporations) to violate these amendments, and all lawsuits alleging constitutional violations of this type must show how the government (state or federal) was responsible for the violation of their rights.

Put another way, the Constitution is a limitation on governmental conduct, not (with a singular exception) a limitation on private conduct.

With the above in mind, any “state action” by Mississippi would potentially violate the “rights” discussed above. For instance, Mississippi could have conceivably prohibited any contracts or business dealings between homosexual couples and Mississippi business entities (obviously improper). That would have been a state action.

Likewise, Mississippi could have specifically ordered its private businesses to enter contracts with homosexual couples (obviously improper). Again, this would be an example of state action.

But instead, HB 1523 demands that government take no adverse action against either side. Government inaction cannot equate to state action; and without government action, there cannot be a violation of rights.

HB 1523 add 301 new lines of code to Mississippi’s law. Only a small handful of the lines even remotely allow some degree of nominal state action by allowing clerks who hold a “sincerely held religious belief” to recuse themselves from their duties. But even then, HB 1523 attempts to strike a balance by mandating that “[t]he 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.”

In sum, HB 1523 doesn’t prohibit, impede or delay homosexual marriage. Nor does it empower state-sponsored discrimination against anyone seeking to exercise the new right. It merely demands the government remain neutral out of respect for the conflicting rights involved.

Such inaction is precisely the balance required by the U.S. Constitution.

It doesn’t matter that one right may be less popular (less PC) than another, and rights don’t change with the mere passage of time.

But remember, the American left isn’t happy with a balance.

They desire state action.

They desire more government. Coercion. Force.

For the government to pick a side.

They demand control, even if the state action would violate four distinct and longstanding Constitutional rights. What the left proposes is to abandon the older rights for a newer one. And they want to use state government to achieve their objective.

But there is no way to justify wholesale state-sponsored discrimination over the infrequent individual, private discrimination that may occur.

Government action is the culprit. Private discrimination is a modern day stigma for anyone accused, but state-sanctioned discrimination is worse.

HB 1523 is not discriminatory, and to say otherwise is unfair.

It achieved a delicate balance. Nothing more.

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Comments

  1. It is both good and proper that many private individuals, public officials, and private businesses are “coming out” in opposition to HB 1523, and in support of our LGBT brothers and sisters. It is indeed a cruel political gesture to pass legislation when the conduct sought to be protected in Mississippi is already legal–at least in the private sector. The American experiment is founded on the concept of “liberty”. This freedom to live one’s life, work as one chooses according to one’s abilities, and associate with whomever one chooses, is the heart of American Exceptionalism. However, just like many things in life, the very liberty which has promoted the development of so much good and exceptionalism in America, can also be abused to commit acts of evil. For example, until 1964 it was completely “legal” for anyone to discriminate against any particular individual or group, anywhere and/or for any reason in the USA. When the 1964 Civil Rights Act was enacted into federal law, for the first time, it became illegal to engage in invidious discrimination due to race, color, sex, religion, creed, ethnicity, and national origin. Legislation was later passed which prohibits invidious discrimination due to pregnancy, age, and disability. Thus, Americans decided through our elected officials in Washington, D.C.that we were willing to sacrifice a little bit of liberty in order to promote the public good. However, protections against invidious, disparate treatment in the private sector has never been extended to LGBT folks. I agree with Chris that Mississippians have always been “at liberty” to engage in invidious discrimination against LGBT folks in the private sector, and continue to be at liberty to do so with or without HB 1523.

    I respectfully disagree that the Supreme Court’s decision in the Obergefell case has “created” a new right. Rather, it is simply the Court’s acknowledgement that the choice of a marriage partner is a natural, fundamental, and therefore, a clear constitutional right–including marriage unions between same-sex individuals. The 14th Amendment protects equal protection of the laws to all “persons” PERIOD! Therefore, the Court majority simply adopted a conservative approach and applied the right to same-sex couples according to the “textual” wording of the 14th Amendment. To do otherwise, would have been the epitome of ruling by judicial fiat, instead of ruling pursuant to the rule of law.

    Therefore, some folks are asking “what can be done in our State to eliminate this odious and reactionary law that is driven by fear and ignorance?”

    First, as private individuals, we can all show our support for members of the LGBT community by speaking out, and by boycotting those establishments, businesses, and organizations which are hostile to extending the dignity of full equality to members of the LGBT community. Second, we can support the passage into law the pending bill–End Discrimination in America (ENDA)–which if passed, will prohibit all discrimination of LGBT folks in the private, secular sector. It will effectively nullify the protections for invidious and disparate treatment of LGBT folks that HB 1523 seeks to preserve in the private sector. Third, we can seek to have HB 1523 repealed. However, given the current political climate and the domination of the Christian Collectivist Community over the Mississippi Legislature, (which has historically resisted positive and needed social change) it is doubtful that this is realistic. It will require a concerted effort led by the Mississippi Better Business Bureau and the Mississippi Economic Council, along with their members to pressure our elected officials in Jackson for repeal. If businesses threaten to leave Mississippi, or refuse to move their businesses here, the loss of jobs in the private sector, coupled with the loss of tax revenue could be the necessary incentive to cajole Mississippi’s lawmakers into repealing HB 1523.

    Just like the issue of race in the 1960s, the tide of history is working against the reactionary forces that continue to oppose LGBT equality. Hopefully, Mississippians will decide that it is in everyone’s best interest to extend equality to all of our citizens.

  2. I will be sure to boycott any and all businesses that believe I should support what SHOULD BE my preference to abstain. Your and/OR THE STATE’S belief that I should support or not support that which I don’t endorse is precisely the point of the First Amendment. Leave out the specificity of the verbiage in the above comment, and what you have is my right to make my own decision and NOT YOUR (preconceived) right to make and force that decision for me. The Laws of Nature and such clearly show that by how the natural world works. Plant life prefers light, it avoids the dark at every opportunity presented to it.

    • Pursuant to Natural Law, the individual is at liberty to do what one pleases. However, if all men were like the angels, there would be no need for government. Accordingly, government was created by the people to protect one another from our darker natures–even though such protection sometimes causes there to be a partial loss of liberty. As I stated previously, “protections against invidious, disparate treatment in the private sector has never been extended to LGBT folks. I agree with Chris that Mississippians have always been “at liberty” to engage in invidious discrimination against LGBT folks in the private sector, and continue to be at liberty to do so with or without HB 1523.” Therefore, HB 1523 is a cruel and unnecessary legislative act that serves no legitimate purpose–especially in the private sector.

  3. Reblogged this on The Word from the Front.

  4. It is amazing that you only have to be tolerant if you are a Christian. A lifestyle choice can never be legitimized no matter how many Christians you try to coerce into participating and condoning.

    Thank you for sharing the Constitutional legality and history Senator McDaniel.

    • MichaelW says:

      Said very well Douglas, yes I agree that the Liberal, Hollywood, California types are always looking for a way to slam the conservative folks from our great state. It so seems they are so concerned about the rights of LGBT citizens to force their marriage ceremonies on the rest of us but fail to recognize the rights of our citizens not to be forced to participate in their ceremonies if for reasons of our own that we choose not to participate. It doesn’t mean they are being discriminated against or are unwelcome in stores, restaurants, bars, churches,schools, or wherever, only that the citizens of Mississippi are not forced to participate in their weddings or be sued because of this refusal. Polls show over 60% of Mississippians are for this bill and this crosses ages, races,& religions. Doesn’t majority rule mean anything anymore? For the liberal folks from California who expect us to follow their lead, sorry I don’t think so. Your liberalism has already Bankrupted your state so please just take your cameras and go home (Sharon Stone). If the folks from California, New York, Minnesota, or where ever don’t want to come here, well……Sorry I don’t see the problem. It just means we will keep Mississippi as a great place for its citizens. P.S. Sharon don’t let the door hit you in the rear on your way back to Calif.

      • Michael, you and the other supporters of HB 1523 can’t call yourselves “True Conservatives”. Your arguments betray the fact that you are not interested in a conservative interpretation of the Constitution. Rather, you are advocating for a “LivIng Constitution”. In this respect, you guys sound like “Typical Liberal-Progressives”. The Equal Protection Clause of the 14th Amendment makes it literally clear and crystal clear, that the State may not create any law that denies equal protection to all persons. PERIOD! It doesn’t get much simpler than that. And yet, our elected state leaders have enacted into law a statute that is indefensible under the Constitution. You say that the majority wishes should rule the day. How very unconstitutional and un-American! The EPC was ratified in part in order “to protect the minority from the tyranny of the majority”. This was a very real concern of Adams, Jefferson, Madison, et al. Their concerns were finally specifically addressed in 1868 when the 14th Amendment was adopted and ratified.

  5. Ruby Smith says:

    MichaelW, what you need to know is, Mississippi already had a law in place that prevented you from being sued or fined for refusing to participate in something you did not “believe in”. Unlike Oregon and I think 21 other states (people love to talk about the Oregon cake bakers when they defend this law). Like a columnist said, I don’t remember who, this law was a solution in search of a problem. And I know you think it sounds all tough and cool to stay away and don’t come here, but I bet you want the feds to keep on sending that federal money to us don’t you? You know, the $3 to every $1 we pay in? You federal taxes that are paid in from people in some liberal states? When we have solved all our problems, like poverty, teen pregnancy, obesity, and many other things, then you can spout off all you want about how those people can just “stay away” and maybe not look quite so foolish.

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