Emails show Christian group drafted much of HB 1523
A Christian non-profit drafted much of the language in Mississippi’s controversial Protecting Freedom of Conscience from Government Discrimination Act and even helped write Gov. Phil Bryant’s signing speech, emails obtained by the attorney suing the governor show.
Alliance Defending Freedom, which supported Mississippi’s Religious Freedom Restoration Act enacted in 2014, brought the idea of the “religious conscience” bill, which would eventually become HB 1523, to Mississippi more than a year ago.
"We appreciate the Alliance Defending Freedom working with the Legislature to draft House Bill 1523," Bryant said in a statement Friday. "It is perfectly normal for our office to work with individuals and organizations, who have had a role in requesting and/or opposing legislation, during the bill review process to gather additional information."
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While it may be normal, attorney Robbie Kaplan says it is a crucial distinction to the legal case she is making against the governor.
ADF is a Christian legal group founded in part by Don Wildmon Sr., who also founded the American Family Association, a Tupelo-based Christian non-profit.
Two days before the U.S. Supreme Court ruled in favor of same-sex marriage in Obergefell v. Hodges, ADF Senior Counsel Austin Nimocks sent an email to Bryant’s administration.
“We are working with organizations that have drafted the attached materials. The main document is a model executive order that would prevent state governments from discriminating against their citizens because of their views about or actions concerning marriage,” he wrote. “It could provide an appropriate response to the upcoming Supreme Court decision on marriage (whatever that decision may be).”
Kaplan, the attorney who successfully overturned the federal Defense of Marriage Act, suggests in her federal lawsuit that HB 1523 violates the Establishment Clause in the First Amendment of the US Constitution, which prohibits the establishment of religion by Congress.
"The model executive order that is attached as part of Exhibit G looks very similar to HB 1523," Kaplan writes in her objection to Bryant's motion to stay the injunction pending the appeal.
Both contain the same three religious beliefs for special protection including: Marriage should be recognized as a union between one man and one woman; sexual relations are reserved for those marriages; and a person's gender refers to his or her biological sex assigned at birth.
Greg Scott, ADF vice president of communication, said Friday the organization "helped draft the bill," sending suggested language for an executive order that was then included in HB 1523.
The possible significance of ADF's role is that ADF is an openly Christian organization, and the bill only protects certain religious views that coincide with Christianity.
This isn't the first time ADF has worked on Mississippi legislation. In 2014, Mississippi injected itself into a similar national conversation about religious protections by passing it's own Religious Freedom Restoration Act.
The passage of RFRA, which Kaplan calls “radically different” from the 2016 religious conscience bill, is significant in understanding HB 1523 and the case against it. RFRA does not limit protections to certain religious beliefs, as HB 1523 does.
Scott points out that one man-one woman marriage is a tenet of many faiths, not just Christianity. Citizens and organizations who hold that belief need protection because, "these beliefs are increasingly disfavored by the elite institutions, particularly government," he said.
Paul Barnes, the attorney who represented the state in the case before U.S. District Judge Carlton Reeves, told Reeves that the law would not protect those with sincerely held belief against straight marriage, illustrating a religious preference.
RFRA also includes language to suggest that only if there is a “substantial burden” on a person’s exercise of religion should it apply. There is no such language in HB 1523, making its application more broad, which could increase the likeliness that it would be used to discriminate.
In 2014, Mississippi legislators made a point to clean up language in the state RFRA to avoid being accused of writing legalized discrimination into law, especially after the national attention Arizona received over a similar bill. Arizona Gov. Jan Brewer ultimately vetoed that bill.
Mississippi leaders defended the bill in 2014 by saying it was nearly identical to the federal RFRA passed in 1993. HB 1523 goes steps further than the language enacted though RFRA in 2014.
Reeves’ opinion striking down HB 1523 works to explain the cultural differences from 2014 to 2016 — where legislators went from crafting RFRA to passing what critics deem a much more flagrant HB 1523. In the in-between year, the U.S. Supreme Court affirmed same-sex marriage.
"In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction. Politicians reacted to the Hawaiian proceedings with DOMA and mini-DOMAs. Lawrence and Goodridge birthed the state constitutional amendments. And now Obergefell has led to HB 1523. The next chapter of this back-and-forth has begun," Reeves wrote.
ADF also offered support to Bryant as he geared up to sign the bill. "Obviously there will likely be significant opposition so we want to help come behind you all however we can with national support and cover as well as activating folks in the state," said Kellie Fiedorek, ADF legal counsel, in another email in March.
Before Bryant signed HB 1523 in April, his office sought help from ADF in drafting the signing speech and press release.
“Thank you for taking the time to speak with me and agreeing to help provide some language for Governor Bryant’s Signing Statement,” said Whitney Lipscomb, Bryant’s counsel, in an email to ADF.
ADF sent draft statements in response, adding, “We looked through a number of Gov. Bryant’s signing statements and tried to use his voice.”
In Kaplan's latest filing, she also includes as exhibits several letters from Christian groups across the state in support of HB 1523. Most of those were sent to the state by the Mississippi Center for Public Policy.
In an email dated April 4, MCPP's Vice President for Policy Jameson Taylor sent a list of talking points in regards to HB 1523 to three employees in the governor's office.
"HB 1523 is very narrowly and carefully crafted in response to one thing: the Supreme Court same-sex marriage decision," reads the email.
MCPP's involvement comes as no surprise. MCPP president Forest Thigpen wrote a column in support of HB 1523 in which he suggests that the law had been misrepresented and even compares a same-sex wedding to a neo-Nazi wedding.
"We would never think of forcing a Jewish baker to make a swastika-adorned cake for a neo-Nazi wedding, which is also legal to hold. Why would we think it’s OK to force a religious business owner to assist in a wedding ceremony that violates his or her deeply held beliefs, simply because it is now legal to hold such events?" Thigpen writes.
On June 23, Professor Douglas NeJaime of the UCLA School of Law and the Williams Institute testified in front of Reeves about the role of Christian right-wing organizations like ADF, AFA and Family Research Council in promoting laws like HB 1523.
FRC president Tony Perkins attended Bryant’s signing of RFRA in 2014. FRC, a Washington, D.C.-based Christian lobbying organization, gave Bryant its Samuel Adams Religious Freedom Award this year after signing HB 1523 into law.
“They (the emails) completely corroborate the substance of Professor NeJaime's expert testimony that HB 1523 was drafted by the ADF, was promoted by the ADF and other conservative Christian groups, and that, as a result, HB 1523 improperly and unconstitutionally reflects the sectarian Christian values of these organizations,” Kaplan writes.
In court, Reeves asked Kaplan a significant question: Did ADF actually draft the legislation? With the help of Bryant's emails, she says she now has her answer.
Contact Anna Wolfe at 601-961-7326 or awolfe@gannett.com. Follow @ayewolfe on Twitter.