Is it about religious freedom? Is it about LGBTQ discrimination? We cover all of that in our primer on the most controversial bill of the legislative session.

You’ve probably heard about Mississippi Senate Bill 2681. To supporters, it’s known as the “Religious Freedom Restoration Act.” Opponents prefer to call it the “Turn Away the Gays” bill or the “License to Discriminate.”

What’s all the controversy about? Megan McRaney and I have put together everything we think you should know about SB 2681.

What does SB 2681 actually do?

Well, it depends on what version of the bill you’re talking about. The bill passed by the Senate on January 31 is radically different from the bill waiting for a vote on the House floor. We’ll get to the differences in a second, but both versions include two sections. Section 1 establishes an exemption from state laws that burden religious beliefs and practices. Section 2 amends the state seal to add the motto “In God We Trust.”

The Mississippi Senate passed SB 2681 unanimously on January 31. It was voted out of the House Judiciary B Committee this week. The House version awaits action on the floor. If passed, it must be reconciled with the Senate version before final passage and the governor’s signature.

Why do we need a religious freedom bill anyway? Don’t we have the First Amendment?

Because Congress and state legislatures have decided that government should not be in the business of burdening religious practice unless the state has a compelling interest to do so. Mississippi is actually one of the few states that has no constitutional or statutory religious exemption already on the books:

From Volokh Conspiracy
From Volokh Conspiracy, “What is the Religious Freedom Restoration Act?”

As one would expect, the case law on religious liberty is long and varied. (For a comprehensive history, read this post at the Volokh Conspiracy.)

But the need for the Religious Freedom Restoration Acts (RFRAs) in Mississippi and elsewhere dates the Supreme Court’s Employment Decision v. Smith decision in 1990. The Court decided that laws burdening religious practice were constitutional as long as they were “facially neutral” and “generally applicable” — in other words, they did not appear to target a single religion or religious group, and they applied to everyone.

Here’s an example. The Smith decision would have struck down a law that forbade Orthodox Jews from wearing yarmulkes on government property, but it would have had no problem with a law that forbade anyone from wearing a round cloth hat on government property. The Jews would face the same burden under either scenario, but since the latter does not make reference to religion and applies to everyone, the Court ruled that the First Amendment did not provide them an exemption. Their only recourse would be to work through the legislative process to receive a statutory carve-out.

In 1993, Congress responded to the widely-condemned Smith decision by passing the first RFRA. The federal RFRA placed a higher constitutional scrutiny on state laws that burden religious free exercise, requiring those laws to have a basis in some important public interest. No longer could they simply appear to be neutral toward religion and religious groups. The government would have to offer a compelling explanation for why the burdensome law was necessary, and they would have to show that there was no less-burdensome means of achieving the same objective.

In 1997, however, the Supreme Court struck back in City of Boerne v. Flores. Congress’s RFRA, which had also applied to state and local laws, was pared back to cover federal laws only. That’s when states began drafting their own RFRAs to reinstate the federal language. Mississippi would be the 19th state to pass a version of RFRA.

If so many states have one of these, why all the controversy about Mississippi’s bill?

The version passed by the Senate has a few bits of language that set it apart from the RFRAs passed by Congress and other state legislatures. It was widely feared that these provisions would be wielded by religious conservatives to discriminate against LGBTQ Mississippians.

First, the bill passed by the Senate would have allowed for individuals to cite burdens to religious liberty even when no state entity is involved [Sec. 1.3(b)]. In other words, SB 2681 would go beyond simply exempting individuals from laws that offend their religious beliefs. It would extend to private transactions and policies as well. For instance, a hotel manager might be able to cite religious beliefs in order to refuse giving a single-bed room to a same-sex couple despite his chain’s non-discrimination policy.

Second, while the bill only references “persons,” Mississippi state code already recognizes the “personhood” of public and private corporations. Therefore, any mention of “person” in Mississippi law also applies to a business. The Senate version of SB 2681 would allow businesses to claim religious liberty when refusing service or employment to those who offended their beliefs.

Third, SB 2681 seeks to set a higher bar for defining a compelling government interest that permits the burdening of religious exercise — no less than a government interest “of the highest magnitude” [Sec. 1.2(b)]. It’s not clear what that means or how it will be interpreted in court, but the bill’s authors wanted to make sure Mississippi’s RFRA placed even higher scrutiny on any laws that burden religious exercise than in other states.

What did the House change? Is the bill still discriminatory?

The House Judiciary B Committee stripped the most egregious elements of the Senate version. It restricted the application of the law to government action, not actions between individuals or businesses [the Senate’s Sec 1.3(b) clause]. It also raised the threshold from merely “burdening” religious exercise to “substantially burdening” [Sec. 1.2(c)], and it clarified that the religious exemptions could not be granted to employees at businesses that have adopted internal non-discrimination policies [Sec. 1.6].

The result is a bill that looks similar to the federal RFRA and those of other states. Courts would likely interpret it as they have in other states, which means that it will not open the door for new forms of discrimination.

So, under the House version, a business cannot discriminate against LGBTQ Mississippians, right?

Not so fast. Current state law does not prohibit discrimination based on sexual orientation in the ways that race or gender are shielded. That means businesses in Mississippi can discriminate against LGBTQ citizens in the same manner that they say “no shirt, no shoes, no service.” The shirtless don’t have legal protection from discrimination in Mississippi, and neither do gay, lesbian, or trans individuals. Unless employers have a private non-discrimination policy that includes sexual orientation, LGBTQ employees can be fired at will.

Federal law remains unsettled about whether sexual orientation is a “protected class,” though the Supreme Court is expected to move in that direction soon. Until then, LGBTQ Mississippians will have no right to equal treatment — no matter what happens to SB 2681.

However, it’s important to note that if the bill does pass, each case of discrimination will still have its day in court. Those looking for a religious exemption must prove their beliefs or practices have been “substantially burdened.” The government must prove that the potentially-burdensome law served a government interest “of the highest magnitude.” The surest path to eliminating discrimination is not to kill SB 2681, but to elect judges who believe LGBTQ equality is a clear and compelling state interest.

I see lots of opposition on Facebook. Who supports this bill?

Opponents of SB 2681 have adopted the Mississippi equality logo as their Facebook profile.
Opponents of SB 2681 have adopted the Mississippi equality logo as their Facebook profile.

The Senate bill was written in the same vein as the vetoed Arizona RFRA. Its sponsors were mostly conservative Republicans (and two Democrats), though it ended up passing on a unanimous voice vote. As Sen. David Blount (D-Jackson) later admitted on Facebook, he and his Democratic colleagues hadn’t read the bill closely. Most of the attention centered around the “In God We Trust” motto, and the remainder was assumed to be boilerplate RFRA language. A conservative coalition of political and religious leaders still support the Senate version.

However, those who stand to benefit from the amended House version are religious minorities who do not have the political influence to create statutory exemptions through the democratic process. For instance, the Amish who have religious objections to affixing reflectors to their buggies, or Hmong families who refuse autopsies for loved ones.

RFRAs have traditionally enjoyed wide support across the country. Congress passed the federal RFRA almost unanimously in 1993, after it received the endorsement of the ACLU and the Southern Baptist Convention. They are on the books in states ranging from liberal Connecticut to conservative Texas. Their intention is to protect religious minorities from undue discrimination — only in the hands of a malicious few have they become vehicles for more discrimination.

Ok, sum all this up for me.

Here goes: SB 2681 does not create a right to discrimination that didn’t already exist in Mississippi. At worst, it affixes the state seal — complete with new motto — to existing forms of discrimination.

The energy that has gone into opposing the bill has taken it from malignant to benign. And vigilance is necessary to make sure that dangerous language does not slip back in during the conference committee. But RFRAs do serve a valuable purpose in protecting the civil liberties of religious minorities. Killing this bill outright will not prevent much, if any, LGBTQ discrimination that is not already permitted in Mississippi. Instead, the activism needs to shift toward pushing Mississippi’s leaders to create an affirmative right to equality on the basis of sexual orientation and identity.

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