Just two months ago, the Mississippi Senate unanimously passed a “Religious Freedom Restoration Act.” The state House Judiciary committee referred the bill to the full House, which has until midnight Wednesday to vote on it. Yet with the deadline approaching, the committee gutted the bill's language.
Is this a victory for LGBT equality? Read the fine print. The new version of the bill is so ambiguously written, it might be almost as discriminatory as the old version.
One thing we know for sure: the defeat of a similar bill in Arizona has changed the Right's strategic calculations.
“This is not going to be like what we saw in Arizona,” said Andy Gipson, chairman of the House Judiciary Committee. Gipson is no liberal: a Southern Baptist minister, he once tweeted, in response to President Obama’s support for same-sex marriage, that “the only opinion that counts is God’s.” But after the firestorm in Arizona, even Gipson has backed off. Well, a little bit. And for now.
Arizona’s bill, and now Mississippi’s, are the latest of many state Religious Freedom Restoration Acts (lawyers call them “Rifrahs”) to be promoted in recent years by a national network of religious conservatives. This is a national campaign, with national conservative policy wonks writing the bills and local organizations promoting them.
That said, these are not the same folks shouting “God Hates Fags” and carrying pictures of aborted fetuses. They are more insidious than that. A few of these organizations chase the headlines – like the Alliance Defending Freedom (formerly the Alliance Defense Fund), founded by Religious Right heavyweights in 1994 to be a religious counterweight to the ACLU. But others, such as the DC-based Ethics and Public Policy Center and conservative-Catholic-funded Becket Fund, are hardly household names. Nor are their funders – the Bradley Foundation (which gives $30 million per year to conservative causes), Templeton Foundation, and others.
Yet over the last decade, led by a small circle of conservative Catholic intellectuals (Princeton professor Robert George, Harvard professor Mary Ann Glendon) and Protestant “foot soldiers” (Alliance Defense Fund president Alan Sears, American Family Association’s Bryan Fischer, Focus on the Family founder James Dobson, Family Research Council president Tony Perkins), this conservative constellation has successfully inverted the meaning of “religious freedom” to mean the freedom to discriminate against someone else, and won significant “religious exemptions” to Obamacare and anti-discrimination laws. They were on a roll.
Until Arizona. Arizona was a perfect storm: a more extreme bill in Kansas attracted attention; Arizona is preparing to host a Super Bowl next year and is still reeling from the fallout from its extreme anti-immigration bill; and Arizona’s pro-business fiscal conservatives were appalled. The “religious freedom” bill, which like Mississippi's had passed with overwhelming support, crumpled. The most recent polls show 81 percent of Americans oppose laws that would allow discrimination on the pretext of religion.
So where do we stand now?
Mississippi’s lawmakers don’t want another Arizona. But they don’t want to say they’ve given in to the gays either. The solution? Legalism.
The new version of the Mississippi law makes two changes from the old version. First, it protects discriminators from “state action” only, not individual action. Theoretically, that means I can still sue you if you ban me from your restaurant because I’m gay. Second, it says that such state action may not “substantially burden” religious freedom – not just “burden.” That added word means that some limits on religious freedom are acceptable, just not substantial ones.
Really, what the Mississippi lawmakers have done is just photocopy the federal RFRA, passed by Congress in 1993. That law was originally promoted by progressives, not conservatives. Passed in the wake of a Supreme Court ruling upholding the drug conviction of a Native American using peyote, it attempted to shield individuals practicing their religion from harmful state actions. It did so by stating that any government action that “substantially burdens” the exercise of religion must be justified by a compelling state interest, and must be the least restrictive means of furthering that interest. Very, very few state actions pass this test.
RFRA, though, was subsequently found unconstitutional as applied to the states just as conservative Christians again found themselves on the wrong side of civil rights laws, this time protecting women and LGBTs, in addition to African Americans. So conservatives have taken up the mantle from progressives, and changed RFRA from a shield into a sword. Under the Arizona law, not only were religious people to be free from state prosecution – but they could discriminate against others as well. That’s what led to the nightmare scenarios: hotels with “No Jews Allowed” signs, restaurants turning away gay people, and so on.
Does the “new” Mississippi law cure those problems? Not exactly. Rather, it is a perfect case of constructive ambiguity. The definition of “substantial burden” has been bandied about for years by courts, with very different results. And the Arizona law pioneered the strategy of using the term “substantial burden” but then defining it to mean, basically, any burden at all. So its use here may be a distinction without a difference.
Likewise, the Mississippi statute’s definition of “state action” doesn’t just mean legal actions initiated by the government. It also includes “state and local laws.” So, if I sue you for discrimination on the basis of a municipal law, it seems as though I’ll lose, because the legal basis of my suit would violate the RFRA.
These are subtle legal distinctions, to be sure. Yet they may well determine the outcome of real cases in the real world. One case that has conservatives up in arms is that of a photographer in New Mexico who refused to take pictures of a same-sex couple. The New Mexico Supreme Court held that this violated the state’s anti-discrimination statute. We’re all entitled to our religious beliefs and religious practices, the court said, but when you open up a business, you have to play by the rules of the marketplace.
How would that case turn out under the “new” Mississippi RFRA? It’s anyone’s guess. Certainly, the state couldn’t prosecute the photographer. But if the couple themselves sued, the outcome would turn on these fine legal distinctions. Is the law “state action?” Is “forcing” someone to take a photograph a “substantial burden” on the exercise of their religion? We may just have to wait and see.
One thing is for sure: the Mississippi legislators have no idea. One of the most revealing things to come out of the Arizona and Mississippi controversies is that state legislators clearly had no idea what they were voting for. More than one used the term “innocuous” to describe the laws. This indicates a devious ploy on the part of RFRA’s promoters. If legislators sincerely believe that they’re just protecting religious freedom, they have been lied to.
Now, maybe it’s the legislators who are lying. Maybe they knew all along that these laws would hurt gays and other minorities. But if not, if they’re telling the truth that they didn’t understand the ramifications of the bill, then that speaks volumes to the tactics of the Religious Right. They are hoodwinking their own allies.
But not, it seems, their opponents on the left. The Campaign for Southern Equality, the Human Rights Campaign, and the ACLU have all opposed even the “modified” Mississippi bill. Because of the way “religious freedom” has been redefined by the Right, they say that no RFRA is a good RFRA. And they argue that Mississippi’s version is an attempt to have it both ways: claim to be different from Arizona while still relegate gay people, as well as women seeking contraception, and anyone a religious person wants not to serve, respect, affirm, or otherwise support, to second class status.
How will the battle turn out this week? It may depend on whether anyone is reading the fine print.