Reacting to the Obergefell decision, 135 S. Ct. 2584 (2015), the Mississippi legislature passed a law that entitled those with specific religious beliefs to special legal protection. For example, it allowed a small business owner to decline to provide services for a same-sex wedding and a government employee to recuse herself from issuing marriage licenses to same-sex couples. H.B. 1523, 2016 Leg., Reg. Sess. (Miss. 2016). In June, a federal district court struck down that law for violating the Establishment Clause by expressing “an official preference for certain religious beliefs over others” and by creating a broad religious exemption that “comes at the expense of other citizens.” Barber v. Bryant, 2016 WL 3562647 (S.D. Miss. June 20, 2016).

Clashes based on religious exemptions are becoming common across the United States, and Barber cites a Volume 124 Article to explain the origins and consequences of the phenomenon. In Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, Douglas NeJaime and Reva Siegel distinguish RFRA free exercise claims from what they term “complicity-based conscience claims.” The latter of these claims arise when religious groups seek exemptions from laws related to sex and marriage by claiming that these laws infringe on their right to free exercise. NeJaime and Siegel argue that these claims inflict material and dignitary harm on other citizens, and may extend, rather than quell, conflict.

In Barber, Judge Carlton Reeves cited NeJaime and Siegel twice. First, in discussing the law’s defenders, he looked to this Article as support for the argument that legislation like Mississippi’s is increasingly common. Later, Judge Reeves used the Article to explain Mississippi’s underlying premise in passing this law: “[M]embers of some religious sects believe that any act which brings them into contact with same-sex marriage or same-sex relationships makes the believer complicit in the same-sex couples’ sin, in violation of the believer’s own exercise of religion.” NeJaime and Siegel provided the judge with background that supported his invalidation of Missippi’s law. As a result, Barber set a standard that prevents a legislature from discriminating against minority groups by affirmatively protecting complicity-based conscience claims.