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October 27, 2016

Dr. Virginia Young, Superintendent
Newton Municipal School District
205 School Street
Newton, MS 39345

RE: Constitutional Right to Freedom of Religion

Dear Dr. Young:

My name is Mike Hurst and I am the Director of the Mississippi Justice Institute ("MJI"). We are a division of the Mississippi Center for Public Policy, an independent, non-profit, public policy organization based in Jackson that works to promote and protect the concepts of free markets, limited government, and strong traditional families. MJI's mission is to represent

Mississippians whose state or federal Constitutional rights have been threatened or violated, and to defend the principles and ideals of MCPP within and throughout the courts.

I read with astonishment the October 13, 2016, letter addressed to you from an out-of-state group called the Freedom From Religion Foundation ("FFRF"), threatening legal consequences for the actions of a high school football coach baptizing one of his players.

The facts as they now stand: Newton High School football coach Ryan Smith engaged in private religious expression outside school hours, after his official duties as a coach had ended, on private property, not during a school-sponsored event, and with other individuals wishing to express their own privately-held religious beliefs. He did not request, encourage, or require anyone, including his players, to attend or participate in this private expression of his and others' religious beliefs. Under these specific circumstances, there was absolutely no constitutional violation by Coach Smith, as he, like all of us, have a First Amendment right under our Federal Constitution and a right under our Mississippi Constitution to freedom of religion.

The allegations by FFRF, taken to their logical conclusion, would prevent any school or government employee from being able to attend a church where a student also attends and prohibit that government employee from ever speaking to students or others at their church about their private religious beliefs. Such allegations are outrageous, ludicrous and in direct contravention of the religious freedoms upon which our country was founded!

The First Amendment to the United States Constitution forbids the government from "prohibiting the free exercise" of religion of private individuals. U.S. Const., Amend. I. This restriction applies to state and local governments through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Lovell v. Griffin, 303 U.S. 444, 450 (1938). In addition, the Mississippi Constitution states that "the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred." Miss. Const., Art. III, Section 18 (1890). The United States Supreme Court has rejected the notion that public school employees relinquish First Amendment rights by virtue of their government employment. See Tinker v. DesMoines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) ("It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

Government may not exclude or suppress the speech of private individuals for the singular reason that their speech is religious. See Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981). As the Supreme Court explained in Pinette:

[P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. ... Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.

Pinette, 515 U.S. at 760. While the First Amendment forbids religious activity that is established by the government, it also protects religious activity that is initiated by individuals acting privately. As the Court explained in numerous cases, "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (plurality op.).

These assaults on our religious freedoms by those with an agenda to dismantle our Constitution and our founding principles are the exact types of cases MJI was created to litigate. Thank you for your courage in the face of such threats to protect everyone's right to express their religious beliefs privately in accordance with our federal and state constitutions.

No one likes a bully, and we will not stand by while some out-of-state group threatens our fellow citizens with legal actions for doing nothing more than exercising one's constitutional rights. The Mississippi Justice Institute stands ready, willing and able to defend the actions of those like you who seek to protect such rights as well as others who simply want to exert their unalienable rights privately, which our state and federal Constitutions were intended to secure.

Sincerely,

Mike Hurst, Director
Mississippi Justice Institute
Mississippi Center for Public Policy

By Forest Thigpen

To hear this commentary click here.

What happens when two Constitutional rights are in conflict?

After the Roe v. Wade abortion decision, the federal government and almost all states enacted conscience protections for health professionals whose deeply-held beliefs or moral convictions would not allow them to assist in performing an abortion.

Last year, another Supreme Court decision created potential conflicts for people of faith. There now exists the freedom of religion and the freedom of same-sex couples to marry. What happens when those two rights conflict?

HB 1523 provides the framework for addressing that question so that both of those rights can be exercised.

If bakers and florists choose not to be involved in a same-sex wedding, the same-sex couple will still be able to exercise their right to get married. But if the government were to force the bakers and florists to participate, those business owners would not be allowed to exercise their right to the free exercise of religion.

For more perspective on this issue, and to read the bill for yourself, go to mspolicy.org.

Protecting Freedom of Conscience
from Government Discrimination

Why is the "Protecting Freedom of Conscience from Government Discrimination Act" (HB 1523) needed today?

Before the Supreme Court case regarding same-sex marriage (Obergefell v. Hodges), we saw states discriminate against people who believe in one man/one woman marriage. For instance:

• California judges were barred from joining organizations that affirm one man/one woman marriage.

• A Washington state judge was admonished by the state judicial commission for saying he was "uncomfortable" with performing same-sex marriages due to his religious beliefs. He was ordered to not make such statements in the future.

• Governments in Illinois, Mass., and D.C. cancelled contracts to Christian-run adoption agencies because they only place a child with a married mother and father, even though the agencies referred other couples elsewhere.

Then, during oral arguments in Obergefell, the U.S. Solicitor General admitted that the tax-exempt status of private universities and colleges (and, by implication, all religious organizations) that define marriage as the union of one man/one woman would "be an issue" if the Supreme Court found a constitutional right to same-sex marriage -- which it did.

Following the Obergefell ruling, the pressure to approve of same-sex marriage has only increased for religious schools, nonprofits, public employees, small business owners and others. All of these individuals and organizations should be protected from government coercion that would force people with sincerely held beliefs about one man/one woman marriage to violate their conscience.

What does HB 1523 do?

The Protecting Freedom of Conscience from Government Discrimination Act (HB 1523):

• Protects individuals and entities from being penalized by the state or local governments for their moral or religious beliefs that marriage is the union of one man and one woman.

• Protects individuals and entities who believe that sexual relationships are properly reserved to such marriages -- such as a religious school that requires students and faculty to refrain from engaging in sexual activity outside of marriage.

• Protects individuals and entities from being penalized for believing that "male" and "female" are biologically based.

• Is supported by a majority (63 percent) of Miss. voters from both parties and every major demographic.

What does HB 1523 NOT do?

The Protecting Freedom of Conscience from Government Discrimination Act does NOT:

• Change the legal definition of marriage.

• Hinder or slow the process for providing marriage licenses to same-sex couples.

• Prevent the government from providing benefits or services authorized under state law.

• Create a "license to discriminate."

The Protecting Freedom of Conscience from Government Discrimination Act is focused on preventing government discrimination. States should not be in the business of forcing pastors, business owners and public employees to affirm conduct or practices that violate their sincerely held beliefs. Our government should never discriminate against, punish, or penalize people based on their sincerely held belief that marriage is the union of one man and one woman.