Like Georgia, Mississippi's religious liberty bill is a bridge too far

I wound up in a bit of a spat with several conservative critics when I supported the decision by Georgia’s governor to veto their recent religious liberty bill. Regardless of the laudable intentions of the legislation as it applied to ensuring freedom of religion even for less politically popular groups (read: Christians), the bill failed to set appropriate limits for where the protection of one group’s rights ended and the effective suppression of the rights of others began. We now have a parallel situation playing out in Mississippi, where Governor Phil Bryant is considering a similar proposal which lands on his desk this week.

As you would expect, this has led to a battle which is a mirror image of the one which just took place in Georgia. (Washington Post)

Mississippi’s House Bill 1523 says, among other things, that public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman. Same goes for people who act on the belief that “sexual relations are properly reserved to such a marriage” and that gender is determined at birth. It says the government can’t prevent businesses from firing a transgender employee, clerks from refusing to license a same-sex marriage, or adoption agencies from refusing to place a child with a couple who they believe may be having premarital sex.

As of Wednesday, HB 1523 has passed Mississippi’s House and Senate.

The “Religious Liberty Accommodations Act” must return to the House for to resolve differences, according to the Mississippi Business Journal. But it is expected to be approved there (it passed 80 votes to 39 in February). Then it will go to the desk of Republican Gov. Phil Bryant, who has championed religious liberty bills in the past.

The WaPo article obviously highlights criticism of the bill and quotes from opponents prominently, as most coverage tends to do, so I wanted to read the full text of the bill. (You may do so here.) It’s written in plain English rather than obscure legal jargon, which is good, but this also makes the flaws inherent in the legislation clear almost immediately. First, it outlines the specific beliefs being protected, with the first one being, “Marriage is or should be recognized as the union of one man and one woman.” So far so good. Anyone is entitled to believe that if they wish and it’s clearly grounded in religious doctrine as interpreted by many Americans. But that is immediately followed up with a second belief, which reads, “Sexual relations are properly reserved to such a marriage.” Again, you may believe that and are fully entitled to hold that opinion, but good luck enforcing that belief on others via legislation. In any event, these are the beliefs which are identified as “Section 2” of the bill in the later sections of the legislation.

Next we get to some of the specific protections afforded to citizens of the state in how they defend those beliefs. Here’s where we really get into trouble. Section 3 begins by saying that the state shall not take any discriminatory action against a religious organization wholly or partially based on several actions. The first, Section 3(1)(a), allows citizens to refuse to be forced to take part in any marriage which contradicts the beliefs set forth in Section 2. As I’ve said before, I support this proposal and it would apply to any number of vendors, including bakers, photographers, renters of facilities, etc. Unfortunately, the next sub-sections – (b) and (c) – takes off from there into uncharted waters.

(b) Makes any employment-related decision, including but not limited to, the decision whether or not to hire, terminate or discipline an individual whose conduct or religious beliefs are inconsistent with those of the religious organization, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act; or

(c) Makes any decision concerning the sale, rental, occupancy of, or terms and conditions of occupying a dwelling or other housing under its control, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 2 of this act.

These two sections are simply unsupportable under current law or simple concepts of fairness. There is once again a lack of guidance as to who qualifies as a “religious organization” and even if there were, the limits are off the charts. Actual religious organizations should be able to terminate employees whose actions are detrimental to the organization’s mission, but dismissing people based on nothing more than their personal, private beliefs or the fact that they may be gay is discriminatory. And in part (c) they essentially offer permission for any landlord to refuse to rent a dwelling if they suspect the tenants are gay or even heterosexual couples who may be engaging in sexual activity outside of marriage.

Are you kidding me?

There’s also a section on clerks signing off on marriage licenses for gay weddings which could have passed muster, but it could use a bit of tightening up.

From there, the legislation goes on in Section 3(3) to allow the refusal of adoption or fostering of children to gay citizens or those who don’t support the beliefs set forth in Section 2. Why they included that one is a mystery since they already passed a gay adoption ban and it was struck down in federal court. In Section 3(4) they allow doctors to refuse surgical procedures which are otherwise legal.

The real irony in all of this is that the bill could have had my support if they had simply remained in their lane (so to speak) and kept to the protection of those who seek recourse against the government forcing them to care by participating in ceremonies. In fact, the bill goes on in Section 3(5) and beyond to speak specifically to those providing goods, accommodations or services directly to gay wedding ceremonies. Those are protections of the rights of those vendors to refuse to directly participate in a ceremony which violates their religious beliefs. If they had trimmed out the offending sections I outlined above and tightened up the language a bit, this law could have been fully worthy of my support. But they went very far afield from the original concepts we’ve discussed here in the past and left the door open to all manner of abuse.

The real test for religious liberty laws is to determine if they are truly protecting the rights of citizens to adhere to their own beliefs without imposing their decisions on others who may not agree. It’s a fine line to walk, and one which the SJW will fight every inch of the way, but the Mississippi bill stomps all over that line and goes several large strides beyond it. I would recommend that the Governor veto this bill or at least send it back for a fresh look and some changes which could make it viable upon the challenges which are sure to follow if it is passed.

PhilBryant