As the Mississippi House weighs SB 2681, the Religious Freedom Restoration Act, a group of legal scholars has written to Mississippi legislators in opposition to the bill, arguing that “the Bill’s combination of context, timing, and specific provisions will send a powerful message that religiously justified refusals to serve particular classes of customers are legally superior to any state or local prohibitions on invidious discrimination.”
It was rumored the Mississippi House would vote on the bill last week; that vote could come today or tomorrow.
The letter makes the case that although the federal Religious Freedom Restoration Act (passed in 1993) and state statutes modeled on it were once seen as “politically even-handed,” they have now become a means to give religious cover to discrimination. The Mississippi bill, as I noted here, has been criticized for its overbreadth, and how it could be construed to permit individuals and business owners to use religion to discriminate on the basis of race, gender, sexual orientation, and other factors. SB 2681, the legal scholars’ letter notes, may not be limited to refusals to participate in same-sex weddings; it could be interpreted to permit a religious exemption from other Mississippi statutes which prohibit discrimination in the provision of medical care, lending, and housing, based on “the patient’s race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.”
The legal scholars point out that in light of federal court decisions striking down same-sex marriage bans, “the timing and context of SB 2681 reinforces the perception that it is designed to strengthen the ability of commercial actors to avoid the restrictions of state and local civil rights laws.” But while one line of jurisprudence—which could well be headed toward the rendering of same-sex marriage bans unconstitutional—seems to be provoking the supporters of these state religious freedom laws, another line of jurisprudence could make these bills, should they become law, even more far-reaching than “protecting” religious actors from having to participate in same-sex weddings.
First, the scholars note the pendency of the Hobby Lobby case has “intensified” their concerns about the definition of a “person.” “The Hobby Lobby case involves federal RFRA,” they write, “the operative terms of which are nearly identical to Senate Bill 2681. One of the principal questions in Hobby Lobby is whether for-profit corporations are ‘persons’ within the meaning of RFRA. If that position prevails in the Supreme Court, it may well influence state courts to similarly interpret state RFRA’s, especially those with identical language.”
But the heart of their concern is how federal courts, including the Supreme Court, have interpreted RFRA in favor of objectors’ religious interests, and against the government’s interest in generally applicable laws. Claimants under RFRA must prove the law or regulation at issue imposes a “substantial burden” on their religious exercise, a standard the scholars say is “remarkably easy to satisfy.” Once the plaintiff makes that relatively easy showing, the government must show a compelling interest in the law or regulation at issue, and that it is the least restrictive means of furthering that interest. That standard, they argue, is more difficult to satisfy.
They offer this analysis of the consequences of SB 2681:
In the most prominent federal RFRA decision to date, Gonzales v. O Centro, 546 U.S. 418 (2006), the Supreme Court unanimously ruled that the federal government had not sufficiently proven that it had a compelling interest in stopping importation of a hallucinogenic drug (hoasca tea), banned by the federal Controlled Substances Act. The government could not show in court that the risks of trafficking and harm to human health from the drug were sufficient to satisfy the compelling interest test. In addition, the exemption in the Controlled Substances Act of peyote use by Native American tribes led the Court to conclude that the federal government does not have a compelling interest in suppressing the use of hoasca tea, a hallucinogen comparable to peyote.
Suppose Senate Bill 2681 becomes law. If a person raises a RFRA defense to a charge under state or local anti-discrimination law (whether already enacted or enacted after Senate Bill 2681), that person would likely include as part of his defense that other, non-objecting persons provide the same or similar goods and services. Such a person would assert that the existence of alternative providers renders application of the law not “essential” as to him. Whatever the outcome of such a case, we hope you see that the existence of market options should never be enough to make up for the indignity and lost opportunity inflicted by discrimination.
In addition, a person asserting defenses based on a Mississippi RFRA would exploit the O Centro decision by pointing to gaps in coverage in state or local civil rights law. The person would assert that these gaps or exceptions, whatever they may be, undercut the government’s compelling interest in fighting discrimination against vulnerable minorities. Thus, if state courts follow the model of O Centro, the state’s RFRA might protect exactly that kind of discrimination.
Twenty years ago, the Religious Freedom Restoration Act might have been less fraught with legal and policy peril. Now, when it will most likely be both seen and used as a shield against enforcement of civil rights laws (current and future), enacting it seems like a uniquely poor idea. Doing so will harm the state’s reputation as well as its legal culture. Article 3, section 18 of the Constitution of Mississippi already protects as sacred “the free enjoyment of all religious sentiments and the different modes of worship.” Senate Bill 2681 is unnecessary to protect freedom of belief and worship in Mississippi, and potentially quite harmful.
The professors are Ira Lupu and Robert Tuttle of George Washington University, Carlos A. Ball of Rutgers University, Sarah Barringer of the University of Pennsylvania, Douglas NeJaime of the University of California, Irvine School of Law, Eduardo M. Peñalver of the University of Chicago Law School, Richard C. Schragger and Micah J. Schwartzman of the University of Virginia School of Law, Nelson Tebbe of Brooklyn Law School, and Laura Underkuffler of Cornell University Law School.