Religious Freedom vs Freedom to Discriminate: The Case of Mississippi's "Religious Freedom Restoration Act"

In February, the Kansas House of Representatives passed a bill aimed at protecting the "right" of its citizens to discriminate against gays and lesbians on religious grounds. In the wake of cries of segregation, the Kansas State Senate killed it.

A few weeks later, the Arizona governor vetoed a similar bill that had passed both branches of the Arizona legislature.

Earlier this month, both branches of the Mississippi legislature passed its own version of the bill, which the governor promptly signed into law. The law goes into effect in July. Unlike the earlier bills, the Mississippi bill received little media attention--despite actually becoming a law (unlike its predecessors).

Perhaps this is because the Mississippi law is a bit different from the Kansas and Arizona bills.
The kerfluffle over those other bills inspired Mississippi legislators to revise the wording of their version. They avoided any direct reference to gays or to a right to discriminate or refuse service. The freedom to exercise one's religion without state-imposed "burdens" is the sole focus of the so-called "Religious Freedom Restoration Act."

So who can complain about that? Isn't freedom of religion a foundational American principle?

As always, so much hinges on the details. First of all, we have the name of the bill, which suggests that religious freedom has been threatened in Mississippi and that this bill is aimed to counter that threat. But what, exactly, is the threat?

Well, that's no mystery: State actions protecting gays and lesbians from discrimination have imposed "burdens" on those who want to discriminate against gays and lesbians, many of whom justify their desire to discriminate on religious grounds. This is what has motivated the recent spate of "religious freedom" bills--and it is the reason why so many are calling them "anti-gay bills," regardless of how generic their wording.

Despite the change in wording, the underlying motivation remains--as does the underlying idea that freedom of religion should be construed to include the freedom to discriminate on religious grounds.

But does the new Mississippi law really entail that those who want to discriminate should be free to do so--without any consequences from the state--so long as their discriminatory behavior is underwritten by their purported religious convictions? Let's look a bit more closely at the wording of the Mississippi law.

As it now reads, the law prohibits the state from engaging in actions that "burden a person's right to exercise of religion"  where the "exercise of religion" is taken to include "the ability to act or the refusal to act in a manner that is substantially motivated by one's sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief." "Burdens" are taken to include such things as "withholding benefits, assessing criminal, civil or administrative penalties or exclusion from governmental programs or access to governmental facilities." (You can find the entire text of the bill here.)

But all of this applies only absent a "compelling governmental interest"--a qualification that raises some interesting questions. Is preventing discrimination against gays and lesbians a compelling governmental interest that could justify burdening the exercise of religion? If so, then gays and lesbians may have nothing to fear from the Mississippi law, because the state will be free to pass laws and policies that discourage or preclude discrimination, even when those inclined to discriminate maintain that an ambiguous stray passage in their holy book commands it of them.

But given the origins of the bill and its original motivation, one can hardly take it as given that the prevention of anti-gay discrimination will be construed as a compelling governmental interest for the sake of this law. And that raises all kinds of worries. The law holds that even if the burden on religious expression "results from a rule of general applicability," the constraint against the state applies.

So, suppose the state makes funds available to organizations with the condition that the funds be used in a nondiscriminatory way. Suppose it's some state-sponsored program for supporting the performing arts. Now imagine that I am an anti-gay bigot who heads up a group of anti-gay bigots that wants to put on a short play festival. We underwrite our anti-gay bigotry by appeal to the first chapter of Romans and call our group "Godly Theatre." And suppose we want to make sure that no gays sully the stage of our festival with their gay-ness, and so impose strict requirements that only straight actors are allowed to perform (a sure-fire way to gut the number of talented actors willing to perform in the festival). And suppose that we don't stop there. We're so homophobic that we don't want gays even attending the festival. And so we intend to instruct our ticket agents to refuse to sell tickets to any "known homosexuals."

We'll assume there is no state law that prevents us from engaging in our little orgy of bigotry. But there is a condition on state funding, one which implies that my little group is denied access to a source of funds that more non-discriminatory groups have access to. And by the wording of the Mississippi law, "withholding benefits" based on "exercise of religion" is a burden on that exercise--and so it seems that this condition for state funding would impose a "burden" on my freedom to discriminate-under-the-banner-of-religion.

So, does the Mississippi law entail that the state--and by implication the tax-payers--may be required to fund such exercises in anti-gay bigotry? What about the Mississippi Ku Klux Klan? They cloak their racism in loads of religious talk. "God" is on their lips all the time. Is this new law an unexpected boon for them? Will Mississippi taxpayers find themselves helping to fill the coffers of hate groups?

Or, as Mark Joseph Stern notes in a recent Slate piece,

A landlord need only insist that renting to gay people “burden[s] [his] exercise of religion,” and a city ordinance banning anti-gay housing discrimination would be suddenly unenforceable. Every attempted protection for LGBT people would be rendered toothless in practice by the religious liberty defense, thus creating a regime of discrimination that looks strikingly similar to the Romer dystopia that the court so resoundingly rejected.

In short, in any community where anti-gay bigotry is widespread and justified by appeal to religion, gays and lesbians may find themselves systematically marginalized, unable to access basic social goods generally available to others. The law will preclude the state from doing anything about it, and may furthermore require that the taxpayers help to pay for it so as not to "withhold benefits" from religiously-motivated opponents of homosexuality.

Unless.

Unless opposing such anti-gay discrimination is construed by the courts as a "compelling governmental interest." Stern seems to think that, facing the specter of systematic discrimination, this is exactly what will happen. This leads Stern to conclude that the likely outcome for the Mississippi law is something like the following: The first time anyone tries to use the law in court for the purpose that the law-makers had in mind, the courts will conclude that any defensible understanding of the law precludes using it for such a purpose.

In short, the Mississippi law will end up protecting religious freedom in ways that it already enjoys ample protection, but will not protect the freedom to discriminate.

And if that's the case (and I'm not enough of a legal scholar to say that it is), then maybe there really is nothing wrong with the Mississippi law--even though there's a great deal wrong with the motives of those who made it.