SC refers plea regarding Section 377 to Constituition Bench

Laura Christensen
January 9, 2018

Criminalisation of gay sex was thrown into doubt again in August 2017 when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy.

A law in MS called the Protecting Freedom of Conscience from Government Discrimination Act, enacted in April 2016, notes that the state cannot punish citizens, public servants, businesses, and religious institutions who oppose same-sex marriage, homosexuality and transgender rights.

"We will keep fighting in MS until we overturn this harmful law, and in any state where antigay legislators pass laws to roll back LGBT civil rights", said Beth Littrell, a lawyer with gay rights group Lambda Legal.

The Barber challenge was brought by former Obama administration USA solicitor general Donald Verrilli Jr., head of the Washington office of Munger, Tolles & Olson. "HB 1523 fails to honor the tradition of religious freedom in America - instead, it allows people to use religion as a license to discriminate".

Article 21 of the Indian constitution reads: "No person shall be deprived of his life or personal liberty except according to procedure established by law". The bench noted that "a section of people or individuals who exercise their choice should never remain in a state of fear" and "societal morality also changes from age to age".

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The law was enacted in April 2016.

The justices did not comment Monday in their decision to leave in place a federal appeals court ruling that allowed the law to take effect.

The Alliance Defending Freedom assisted MS in its defense of the law.

"Good laws like Mississippi's protect freedom and harm no one", said Kevin Theriot, one of the group's lawyers. "Because of that, we are pleased that the Supreme Court declined to take up these baseless challenges, which misrepresented the law's sole goal of ensuring that Mississippians don't live in fear of losing their careers or their businesses simply for affirming marriage as a husband-wife union".

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