It's no surprise Governor Phil Bryant of Mississippi is one of the few prominent Republicans left defending Donald Trump. Governor Bryant already proved his stubbornness when he was the only public official to appeal the enjoining of Mississippi's radical anti-LGBT legislation passed this spring. Lawyers on both sides are currently gearing up for briefing and arguments in the Fifth Circuit over Mississippi's religious refusal bill, HB 1523. HB 1523 provides explicit, special protections designed to allow individuals and businesses in Mississippi to discriminate against LGBT individuals and families if they believe that marriage is between a man and a woman, sex should be reserved to such a marriage, and/or that the gender a person is assigned at birth is immutable.
Many have deemed HB 1523 to be the most extensive legislation of its kind to be passed into law since the Supreme Court's same-sex marriage decision in 2015. But others suggest that HB 1523 is a sensible accommodation to those in Mississippi with sincerely held religious or moral beliefs about marriage and LGBT identity. Prominent libertarian scholar Richard Epstein penned an article on Mississippi's bill arguing just that. Epstein argues that such religious protections are benign when, "there are thousands of employers and landlords, and dozens of vendors that are eager to cater to the interests of gay and lesbian couples." Basically, Epstein suggests that the answer to the problem that would have been faced by LGBT Mississippians had HB 1523 gone into effect is as simple as: "do your business elsewhere." Epstein also writes that "context matters." So let's actually look at the context in Mississippi, something Epstein fails to do.
This summer in Mississippi, the United Dixie White Knights of the KKK distributed flyers following the Pulse Nightclub shooting in Orlando threatening: "Don't let the outside immoral crowds and their news media get your butt in a bind. We will never bow to homosexuality and bestiality or other unnatural sexual perversions that go against the laws of nature and God." 2016 marked the first year that Jackson, Mississippi hosted an official Pride parade and many gay and lesbian couples chose not to attend in fear for their safety and security. Their Governor had this to say in talking about the U.S. Supreme Court's decision recognizing the constitutional right of gay and lesbian couples to marry: "They don't know that if it takes crucifixion, we will stand in line before abandoning our faith and our belief in our Lord and savior."
But this is only the tip of the iceberg. When you actually travel to Mississippi and talk to LGBT individuals you hear countless stories about lesbian couples alternating turns to attend their children's recitals and sport's games so that they aren't seen together. This doesn't just impact a few families: Mississippi has the highest percentage of same-sex couples raising children in the country. During legal proceedings over HB 1523, the court heard about a teacher telling a little girl her parents weren't married because marriage is between a man and a woman. The teacher proceeded to humiliate the child by polling each and every student in the class, asking if they had a mother and a father to show the student her family was different. It's no wonder one of the witnesses at the hearings has since moved her family out of Mississippi, after describing this legislation "as the final straw."
For LGBT folks living in Mississippi there exists a constant and pervasive sense of fear -- not just the dignitary fear of being turned away at a restaurant (although that certainly exists), but also the legitimate fear of imminent violence. After all, it seems rational to be concerned when a KKK flyer shows up in your driveway on a summer morning threatening you and your family's very existence.
Epstein fails to account for any of these grave realities on the ground. He also seems to not understand the reality of the bill itself. He imagines HB 1523 as limited to private "market-regulated" spaces, but the bill's scope extends far beyond that. HB 1523 prevents the state from interfering in a foster parent's decision to "guide, instruct, or raise" a child in accordance with the favored moral beliefs. One section of the bill allows counselors to deny mental health services to a lesbian teenager struggling with coming out on the basis that the provider believes marriage is between a man and a woman (without any requirement of a referral). The bill extends this protection to state employees, such as a school counselor at a public school, which for many young people is their only access to mental health services. This is in a state, mind you, with one of the highest risks of suicide for LGBT youth. There is nothing hyperbolic about saying that this is about life and death for LGBT individuals in Mississippi. When mental health care providers turn away HIV positive patients, doctors and public health professionals have already warned us what the likely outcome will be.
Richard Epstein believes that although racial anti-discrimination protections were previously justified as a "necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today." That may better describe where Richard Epstein teaches law and contemplates his academic theories: New York City. But for LGBT Mississippians who received KKK flyers in their driveways, Epstein's assertion that the risk is gone is laughable. Don't take my New York word for it: listen to the voices coming directly from Mississippi. For LGBT citizens in Mississippi there's not just the "risk" of a Jim Crow South, it's their daily reality.
Rachel Tuchman is currently a third year law student at Yale Law School. Rachel also currently works as a legal fellow for Campaign for Southern Equality, an organization working across the South to promote full LGBT equality. In that capacity, she works on litigation over Mississippi's anti-LGBT legislation, HB 1523, as well as researches and writes on LGBT issues in the South.