BY: Chris McDaniel @senatormcdaniel
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.
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.
Chris is an attorney, conservative commentator and has represented the 42nd District, which encompasses part of South Mississippi, since 2008. He resides with his family in Ellisville, Mississippi.