RFRA: The Civil Rights Act of the First Amendment Law

Before the year began, many legislators were expecting a relatively noncontroversial session. This was, perhaps, wishful thinking. But one bill that did not seem controversial was SB 2681, the Mississippi Religious Freedom Restoration Act (MS-RFRA). Indeed, SB 2681 sailed through the Senate with little debate and even seemed an appropriate vehicle for the governor’s proposal to add "In God We Trust" to the state seal.

The intent of Mississippi’s RFRA is to help protect the rights of conscience of people all across the state. According to the Pew Research Center, "The U.S. annually has had at least 1,300 hate crimes involving religious bias." In addition to these hate crimes, there are thousands of other instances of religious intolerance and harassment across the country. These cases are documented in the Survey of Hostility to Religion in America published annually by Liberty Institute. Such cases prove discrimination against people of faith is a reality even in Mississippi. Just ask Telsa DeBerry, a black pastor in Holly Springs, whose church was targeted by a discriminatory zoning ordinance; or Jagjeet Singh, a faithful Sikh, who raised a religious objection when ordered to remove his turban by a Pike County judge. And then there is the steakhouse in Wiggins, threatened with a private party lawsuit for sponsoring a church member appreciation day.

The federal version of the Religious Freedom Restoration Act was passed in response to the 1990 Supreme Court decision, Employment Division v. Smith. As the Harvard Law Review explained at the time, Smith "eviscerated" and "gutted" the First Amendment. Congress’ response was to pass RFRA. The bill was supported by a diverse coalition that included groups on both the Right and the Left: the Christian Legal Society, the American Civil Liberties Union (ACLU), Americans for Democratic Action, Concerned Women for America, the National Council of Churches, the National Association of Evangelicals and many others. Chuck Schumer sponsored it, Ted Kennedy ushered it through committee, and Bill Clinton signed it.

Originally RFRA was meant to apply to both the federal government and the states. But in a subsequent decision (Boerne v. Flores), the Supreme Court indicated states would have to pass their own RFRA protections. Since then, 18 states have passed RFRA laws. States like Illinois, where Barack Obama cosponsored RFRA. States like Connecticut, which recognizes same-sex marriage. Neighboring states like Alabama, Louisiana and Tennessee. Mississippi became the 19th RFRA state last week.

So how did commonsense get to be so controversial?

Enter Arizona, which passed its own RFRA in 1999. Earlier this year, Arizona legislators sought to clarify that RFRA could be used as a defense when a private party sues another private party. This clarification was informed by and consistent with federal case law, which almost always and everywhere (e.g., the Second, Eighth, and D.C. Circuits, as well as the U.S. Department of Justice), has affirmed that RFRA can be used as a shield in suits between private parties. One exception to almost everywhere is New Mexico, which also has a state RFRA. There, the state Supreme Court ruled that RFRA could not be used as a defense in a lawsuit filed against a wedding photographer who declined to photograph a same-sex "commitment ceremony."

After the New Mexico case, RFRA became target number one of an aggressive and well-funded lobbying effort. Yet, this same photographer raised other First Amendment objections – for instance, regarding her rights to free speech and artistic freedom of expression. Are we to throw out the First Amendment entirely for that reason? RFRA was praised by the ACLU in 1992 as "the Civil Rights Act of First Amendment law" and by the NAACP in 2009, as "the most significant free exercise protection of the post-Smith era." In turning against RFRA, folks are coming perilously close to rejecting the First Amendment itself.

Setting aside arguments over whether Mississippi’s initial RFRA bill was similar to Arizona’s or whether Arizona’s RFRA amendment was remotely similar to what was said about it, Mississippi lawmakers saw fit to pass a bill that almost exactly mirrors the federal RFRA. The commonsense protections RFRA provides should not be controversial, but that’s the way politics is sometimes. Our legislators and governor deserve credit for carefully studying this issue and deciding to protect the rights of conscience of all people in Mississippi.

This op-ed originally appeared in the Northside Sun.