mississippi rfra
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Letter from various law professors concerning the Mississippi version of the "Turn Away the Gays" bill.TRANSCRIPT
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Douglas Laycock
R O B E R T E . S C O T T D I S T I N G U I S H E D P R O F E S S O R O F L A W
P R O F E S S O R O F R E L I G I O U S S T U D I E S
A L I C E M C K E A N Y O U N G R E G E N T S C H A I R I N L A W E M E R I T U S , U N I V E R S I T Y O F T E X A S A T A U S T I N
580 MASSIE ROAD • CHARLOTTESVILLE, VA 22903-1738 • PHONE: 434-243-8546 • FAX: 434-924-7536 • [email protected]
February 11, 2014
Rep. Philip Gunn
Speaker of the House
Mississippi House of Representatives
400 High St.
Jackson, MS 39201
Dear Speaker Gunn,
We write to provide you our opinion about the Mississippi Religious Freedom
Restoration Act, which recently passed the Mississippi Senate as part of Senate Bill 2681.
We heartily endorse the Act, based on our years of teaching and scholarship on the law of
religious freedom.
The proposed Act is a version of the Religious Freedom Restoration Acts (RFRAs)
that have been enacted at both the federal level (to govern federal law) and in eighteen
states: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky,
Louisiana, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Texas, and Virginia. A number of other states—including Alaska,
Hawaii, Indiana, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina,
Ohio, Washington, and Wisconsin—have interpreted their state constitutions to provide
similar protection. All in all, more than thirty of the fifty states and the federal
government have provided, in one form or another, the protections for religious liberty
that would be provided by the Act.
In fact, Mississippi too has long provided this kind of protection for religious liberty.
Passed in 1890 but still applicable today, Article 3, Section 18, of the Mississippi
Constitution specifically addresses the free exercise of religion: “[T]he free enjoyment of
all religious sentiments and the different modes of worship shall be held sacred.” In
1985, the Mississippi Supreme Court interpreted this passage to provide the very kind of
protection for religious liberty that the Act now establishes by statute. See In re Brown,
478 So.2d 1033, 1039 (Miss. 1985) (noting that only “compelling considerations” can
justify infringing religious freedom).
This does not make the Act unnecessary. Article 3, Section 18, of the Mississippi
Constitution unambiguously protects religious freedom. But it speaks in quite general
terms. State courts are always free to change their interpretations of state constitutions.
Future courts hostile to religious liberty might re-interpret Article 3, Section 18, to give
less protection to religious liberty (or to give none at all). In 1990, in Employment
Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court did just that to
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the federal Constitution’s guarantee of religious liberty, and any state agency or local
government in Mississippi could urge the Mississippi courts to reverse course and read
the new federal rule into the Mississippi Constitution. By putting it in the Mississippi
Code, the Act would give religious freedom lasting protection. Its detailed provisions
would also give more precise instructions to judges about what to do with religious-
liberty claims.
The message that some government officials take from Employment Division v. Smith
is that they have no obligation to make any religious exceptions, and that they don't even
have to talk to religious groups or individuals seeking exceptions. By clearly telling state
officials that they have to consider burdens on the exercise of religion, a state RFRA
opens the door for discussion. These issues can often be worked out informally if people
will just talk to each other in good faith. A state RFRA—like the Mississippi Religious
Freedom Restoration Act—would help make that happen.
The fact that Mississippi has been interpreting its state constitution—for almost thirty
years—to provide the same kinds of protections as the Act should be sufficient proof that
the Act will not cause the sky to fall. Moreover, the standard it creates now applies to the
federal government and more than 30 of the states, and was the standard for the entire
country from 1963 to 1990. In the places where this standard applies, it has not been
interpreted in crazy ways that have caused problems for those jurisdictions; if anything,
these laws have been enforced too cautiously.
These laws typically do not wind up applying to large numbers of cases. But those
few cases are often of intense importance to the people affected. We should not punish a
person for practicing his religion unless we have a very good reason. These cases are
about whether people pay fines, or go to jail, for practicing their religion—in America, in
the 21st century.
You are authorized to share this letter with anyone who is interested. Institutional
affiliations of the signers are for identification only; none of our institutions takes a
position on the Act.
Very truly yours,
Prof. Michael W. McConnell Prof. Douglas Laycock
Stanford Law School University of Virginia School of Law
Prof. Marie Failinger Prof. Carl H. Esbeck
Hamline University School of Law University of Missouri School of Law
Prof. Richard W. Garnett Prof. Robert P. George
Notre Dame Law School Princeton University
Prof. Mark S. Scarberry Prof. Emily Hartigan
Pepperdine University School of Law St. Mary’s University School of Law
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Prof. Thomas C. Berg Prof. Gregory C. Sisk
University of St. Thomas School of Law University of St. Thomas School of Law
(Minnesota) (Minnesota)
Prof. Mark L. Rienzi Prof. Michael S. Paulsen
Catholic University of America University of St. Thomas School of Law
Columbus School of Law (Minnesota)
Prof. Christopher C. Lund Prof. Joshua D. Hawley
Wayne State University Law School University of Missouri School of Law