My perspective on SB 2681, the state Religious Freedom Restoration Act (RFRA) passed this spring, has been slightly out of step with my fellow equal rights advocates in Mississippi. While I solidly oppose efforts to discriminate against LBGT Mississippians, I believe that the threat to equality was not how the bill was written, but how judges might choose to interpret it. Therefore, I called for the energy spent rallying opposition to the bill to be refocused on electing judges who supported LGBT equality. An opinion issued this week by the Rankin County Chancery Court (copied in full below) reaffirms that perspective. Allow me to explain why.
RFRA gives individuals and businesses the right to ask a court for an exemption from state or local law that burdens their First Amendment right to religious free exercise. The court then decides whether the government a) had a compelling interest to pass the law and b) used the least restrictive means to accomplish its interest. In other words, if the state wants to pass a law that impinges upon religious freedom, it needs to be able to prove in court that it had a very good reason for doing so and exhausted all less-burdensome options first. SB 2681 merely brings Mississippi in line with the federal religious freedom standard adopted by Congress in 1993.
What’s important for equality advocates to remember is that the law doesn’t set any iron-clad definition for compelling interest. It’s up to judges to determine what counts and what doesn’t. And in Mississippi, the judges making that determination are more than likely going to be elected, not appointed.
As it stands, Mississippi has almost no legal protections for LGBT individuals or couples. The state has no problem if you’re fired for being gay. They have no problem if you are thrown out of a restaurant for being transgender. SB 2681 didn’t create a license to discriminate, because Mississippians could already discriminate at will. The only place that state law expressly prohibits discrimination on the basis of sexual orientation (though not gender identity) is in healthcare. Mississippi physicians or hospitals cannot turn away patients for being gay.
Since that’s the only new avenue that RFRA might open for LGB (but not T) discrimination, let’s use it as an example. Imagine that a doctor in, say, Brandon refuses to treat a gay patient because of a religious objection to homosexuality. He or she would be in violation of Mississippi Code § 41-107-5, but the doctor may cite RFRA in court to claim a religious exemption from the statute. It’s likely that the Rankin County Chancery Court would then be tasked with deciding whether the state’s interest in providing healthcare access to gay patients is strong enough to justify the incursion on the doctor’s religious beliefs.
I and other LGBT rights supporters would argue that the state absolutely has a compelling interest to protect equal access to healthcare. Doctors can’t turn away patients because of their race or their religion; sexual orientation deserves the same legal protection.
However, the voters of Rankin County may elect judges who see it differently. They could say that gay patients should merely find another doctor, especially if it’s for non-emergency care. Or they could say that since the U.S. Constitution does not make the same provisions for sexual orientation as it does for race and creed, the state’s interest in protecting LGBT rights is not compelling enough to burden the doctor’s First Amendment religious rights.
I’m not necessarily saying these arguments would be made — or that they would hold up upon appeal. What we do know, though, is that the decree that Rankin County Chancery Court judges Dan Fairly and John Grant issued this week makes it clear that they aren’t inclined to grant any rights to LGBT persons that they don’t absolutely have to.
The decision regarded the Rankin County Chancery Clerk’s registration of the New York marriage of two female Rankin County residents, Chrissy Kelly and Anna Guillot. Without hearing testimony, the Chancery Court judges nullified the recognition of the same-sex marriage under Mississippi’s constitutional and statutory prohibitions. But instead of merely citing the relevant law, Fairly and Grant went into great detail about their hostility toward Kelly and Guillot’s relationship and their application for recognition in Mississippi:
“It is the sound public policy, which this Court fully supports and endorses, of the State of Mississippi that any recognition of same sex marriages is violative of the Mississippi Constitution and the statutes of this Sovereign.”
“It is abhorrent and repugnant under the same Constitution and statutes that any person would scandalize or attempt to scandalize the public policy of this State by trickery or subterfuge to create the impression that this County or State in any way or manner endorses or supports same sex relationships or marriages.”
“Equally, if not more compelling, that any effort by any person or persons who, by pretense or otherwise, to utilize the Chancery Court and the Clerk of this Court of Rankin County, Mississippi to advance his/her personal sexual proclivities and worldview is purely and effort to promote his/her self interest, worldview and political or social agenda.”
Mississippi elects its state court judges — from municipal courts all the way to the state Supreme Court. The majority run without opposition, as the Rankin County judges Fairly and Grant did in 2010. Those two will both run unopposed again this fall.
If advocates want to put an end to LGBT discrimination, we better start working to elect judges who think equality is more than just “the self-interested advancement of sexual proclivities.”