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Mississippi Supreme Court, Rejecting Parental Status for an Anonymous Sperm Donor, Says Birth Mother Can’t Challenge Same-Sex Partner’s Parentage

Posted on: April 12th, 2018 by Art Leonard No Comments

Ruling on a custody contest between a birth mother and her former same-sex spouse on April 5, the Mississippi Supreme Court avoided mentioning the parental presumption that most states automatically apply for the spouse of a woman who gives birth to a child, relying instead on a doctrine called “equitable estoppel” to prevent the birth mother from contesting her former spouse’s parental status.

Although none of the five written opinions signed by different combinations of judges on the nine member court represent the views of a majority, adding them up produces a holding that the existence of an anonymous sperm donor is irrelevant to the determination of parental rights for the birth mother’s same-sex spouse.  The court reversed a ruling by Judge John S. Grant, III, of the Rankin County Chancery Court, that the failure to obtain a waiver of parental rights from an anonymous sperm donor prevents identifying the birth mother’s spouse as a legal parent of the child.

The various complications in this case arose because the relevant facts played out before marriage equality came to Mississippi as a result of the June 2015 Obergefell decision by the U.S. Supreme Court, and because the retrograde Mississippi legislature has neglected to adopt any statutes concerning who would be considered a parent when a woman or a couple use sperm from an anonymous donor obtained through a sperm bank to conceive a child, leaving the courts to sort this out without any legislative guidance.

The story begins in 1999 when Christina Strickland and Kimberly Jayroe began their relationship.  After several years together, they decided to adopt a child.  The adoption of E.J. was finalized in 2007.  Because Mississippi did not allow joint adoptions by unmarried couples, only Kimberly was the legal adoptive parent of E.J..  In 2009, Christina and Kimberly went to Massachusetts to marry, and Kimberly took Christina’s last name.  The Stricklands then returned to their home in Mississippi, where their marriage was not legally recognized.

In 2010, the Stricklands decided to have a child using “assisted reproductive technology” – A.R.T.  They obtained anonymously donated sperm from a Maryland sperm bank.  Kimberly, whom they jointly decided would be the gestational mother, signed the sperm bank’s form providing that she would “never seek to identify the donor” and that the donor would not be advised of Kimberly’s identity.  In Maryland, Kimberly was then recognized as a married woman and Christina was identified as her spouse in the clinic paperwork.  Both women signed the form acknowledging that they were participating in this process as a married couple and would both be parents of the resulting child.

According to the plurality opinion by Justice David Ishee, “Christina testified that she was involved in and supportive through every step of the conception and pregnancy.”  She also testified that their plan was to go to Massachusetts for the delivery of the baby, so that their marriage would be recognized and both recorded as parents on the birth certificate.  But for medical reasons that did not occur.  Six week before her due date, Kimberly gave birth to the child, Z.S., in an emergency cesarean section surgical procedure in a Mississippi hospital.  Since Mississippi did not recognize the marriage, the birth certificate shows Kimberly as the only parent.

Over the next two years, the women functioned as a family unit, raising both E.J. and Z.S. as co-parents.  Christina stayed home for the first year of Z.S.’s life, while Kimberly worked full time.  Christina testified that both children call her “mom.”  The women separated in January 2013.  Christina continued to visit both children and paid child support, medical and daycare expenses for Z.S.

Now things took a strange twist: On August 13, 2015, while still married to Christina (and at a time, due to the Obergefell decision, when Mississippi would be legally obligated to recognize the marriage is the issue came up in any legal context), Kimberly married a second spouse, whose name and gender are not identified in any of the judge’s opinions, although from the caption of the case it sounds like her new spouse’s surname is Day, since Kimberly is identified in the title of the case as Kimberly Jayroe Strickland Day.

This prompted Christina to file a divorce petition in Harrison County Chancery Court on August 31. On November 16, Kimberly filed a motion for a declaratory judgment that her second marriage was valid and her first marriage “dissolved” in Rankin County Circuit Court.  Christina answered that motion and counterclaimed for divorce and legal and physical custody of both children, who were then living with Kimberly.  She also sought to be named as Z.S.’s legal parent.  The two cases were consolidated in the Rankin County court.  On May 17, 2016, Judge Grant issued an order declaring that Christina and Kimberly’s 2009 Massachusetts marriage was valid and recognized in Mississippi, and therefore that Kimberly’s second marriage was void.

This led the women to negotiate a “consent and stipulation,” in which they agreed that Z.S. was born during their marriage, that they would jointly pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J., the adoptive child.  They agreed to let the chancery court decide custody, visitation, and child support issues for Z.S., child support and visitation issues for E.J., and the issue of Christina’s parental status toward Z.S.

Judge Grant’s final judgment of divorce, entered on October 16, 2016, ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage.  But, he ruled, Z.S. was “a child born during the marriage, but not of the marriage,” so both parties were not considered to be Z.S.’s parents.  The court considered the anonymous sperm donor to be “an absent father” whose legal parentage “precluded a determination that Christina was Z.S.’s legal parent.”  However, Judge Grant held that she was entitled to visitation with Z.S. under a doctrine called “in loco parentis,” which recognizes that somebody who has acted as a parent and bonded with a child as such could be entitled to visitation even though she has no legal relation to the child.

Christina appealed three days later.  At the heart of her argument was that because Z.S. was born while Christina was married to Kimberly, Christina should be deemed the child’s legal parent, and that the anonymous sperm donor, who had no relationship to the child, could not possibly be considered its legal parent.

The Mississippi Supreme Court was in agreement with Christina’s argument that the sperm donor is really out of the picture and should not be considered a parent.  Justice Ishee’s opinion, for himself and Justices Kitchens, King and Beam, declared that Judge Grant’s finding that the sperm donor was the child’s “natural father” was erroneous as a matter of law.  “At the outset,” he wrote, “we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm.  As such, this is an issue of first impression.”

That is a startling statement for a state Supreme Court to make in 2018, when donor insemination has been around for half a century and most states have adopted legislation on the subject.  But, wrote Justice Ishee, there is only one provision of Mississippi law relating to donor insemination, a statute providing that a father cannot seek to disestablish paternity when a child was conceived by “artificial insemination” during the marriage to the child’s mother.  That’s it.  However, wrote Ishee, “Reading this provision, in light of the context before us, the logical conclusion – while not explicit – is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm – irrespective of the sex of the married couple that utilized his sperm to have that child.”

“How,” asked Ishee, “on the one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the non-biological father of a child conceived through AI from disestablishing paternity?  These two policies cannot co-exist.”

Ishee rejected Kimberly’s argument that “all of the non-biological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoptive process.”  Ishee’s plurality (4 justices) rejected this process as “intrusive, time-consuming, and expensive,” including a ridiculous waste of time for a judge to have to determine that an anonymous sperm donor, who never intended to be the parent of the child, had “abandoned” the child, thus making the child available for adoption by its mother’s spouse.

When a father is “absent” at the time a child is born, the usual process is to try to locate the missing father and inform him of his obligations, but in the case of an anonymous donor, neither the mother nor the court has the necessary information.  In a case like this one, publishing such a notice in a newspaper – the standard way for courts to give notice to missing parties – makes no sense.

On appeal, Christina raised alternative arguments in support of her claims to be Z.S.’s parent.  First, she asked the court to determine a question not addressed by Mississippi statutes: “Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.”  Alternatively, she asked “Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples.”  As another alternative, she asked whether the doctrine of “equitable estoppel” could be used to preclude a birth mother from trying to “disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.” Christina argued that Judge Grant’s order violated constitutionally protected liberty and equality interests by failing to recognize Christina’s parental relationship with Z.S.

Justice Ishee’s opinion ignored all of these arguments except “equitable estoppel,” a doctrine which he explained that Mississippi courts have defined “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.”  Ishee concluded that the doctrine fits this case, and rejected Kimberly’s argument that the decision to have a child through donor insemination was solely hers and the fact that she was married to Christina at the time was irrelevant.  Ishee found that “the evidence in the record belies this assertion,” and cited chapter and verse, right down to the birth announcements the women sent out, which identified the women as “two chicks” who had “hatched” the child.

Since Kimberly represented to Christina all along that Christina would be a parent of Z.S., the doctrine of equitable estoppel blocks her from arguing to the contrary in the context of this divorce proceeding. Judge Grant’s award of “in loco parentis” status to Christina was insufficient, in Ishee’s view, to protect her legitimate interests.  For example, suppose Kimberly married somebody else and petitioned for her new spouse to adopt Z.S.  Christina’s “in loco parentis” status would not entitle her to prevent such an adoption. But if the court recognizes her as a parent, she could.

Thus, without ever mentioning the parental presumption, the plurality opinion, purporting to be speaking for the court as a whole because of the concurring opinions, reversed the chancery court’s ruling that Christina acted “in loco parentis” but “was not an equal parent with parental rights to Z.S.” They sent the case back to Rankin County Chancery Court to determine custody using the multifactorial test that is generally used in a custody contest between legal parents to determine what would be in the best interest of the child, with a “guardian ad litem” appointed to represent Z.S. in the proceedings.

Chief Justice William Waller, Jr., joined “in part” by Justices Randolph, Coleman, Maxwell and Chamberlin, “concurred in part and in the result.” “The narrow issue before the Court,” wrote Waller, “is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child.  I conclude that they are and that the decision of the chancellor should be reversed and remanded.”  After briefly referring to equitable estoppel, he wrote, “While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as a result of assisted reproductive technology.”

Justice Josiah Coleman, concurring in part and dissenting in part, pointed out that the doctrine of “equitable estoppel” had not been argued to Judge Grant, so it should not be a basis for the court’s decision. Thus, he was only joining Judge Waller’s opinion to the extent that Waller agreed that the chancellor erred by according any parental status to the sperm donor.  He would remand the case to the trial court, having reversed that part of the holding, “to allow the parties to present whatever evidence and arguments they wished that accord with the Court’s holding.”  His opinion was joined “in part” by Justices Randolph and Maxwell.

Justice James Maxwell, also concurring in part and dissenting in part, insisted that “what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court,” and since there was no statute on point, “we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed,” he argued, “it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.”  His opinion was joined “in part” by Justices Randolph and Coleman.

Finally, Justice Michael Randolph dissented, joined in part by Justices Coleman, Maxwell, and Chamberlin. Randolph said the court should never have addressed equitable estoppel, because that argument was presented for the first time on appeal.  Next, although he agreed that the chancellor erred in declaring an anonymous sperm donor to be the child’s “natural father,” he thought that the “plurality’s blanket assertion that in any case, no anonymous sperm donor will be accorded the burdens and benefits of natural fathers” went too far. He though there was a constitutional issue here, where no attempt had been made to identify and contact the sperm donor.  He also pointed out that the “disestablishment” statute cited by Justice Ishee and then used to support the plurality’s ruling “never was quoted or argued by either party at the trial level,” so also should not have been relied upon in any way by the Supreme Court.  He also found no basis in the record for setting aside the chancellor’s determination that it was “not in the best interest of either child for Christina to have custody.” He pointed out that the chancellor had neglected to address all of the factors specified by Mississippi courts on the record, so the correct approach would be to remand the case to the chancellor “to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.

This appears to be a victory for Christina, to the extent that enough members of the court agreed with the equitable estoppel approach to make that part of the holding of the court, tossing the case back to the trial court to decide anew whether it is in the best interest of Z.S. for Christina to have joint or primary custody of him as a parent. (Christina is not seeking custody of E.J., just visitation rights.)  But the fractured ruling falls short of the appropriate analysis that would be more beneficial for married LGBT couples in Mississippi: a straightforward acknowledgement that when a married lesbian couple has a child through donor insemination, both of the women will be presumed to be the legal parents of that child, without any need to make a factual showing required for the application of equitable estoppel should any dispute later arise about custody or visitation.  One wonders whether fear of political retribution may have motivate all nine justices to avoid mentioning the parental presumption or invoking Obergefell in support of its application in their various opinions.

Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Kimberly is represented by Prentiss M. Grant.

A Flood of New Litigation on LGBT Rights

Posted on: May 10th, 2016 by Art Leonard No Comments

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.

 

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “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.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.