The Scholars' Mississippi Letter: RFRAs in General Are Now Bad

Several days ago, Michael posted the letter from several legal academics opposing the proposed Mississippi RFRA (religious freedom restoration act; the latest proposed text, which has now been tabled, is here). I've meant to write a responsive post but have been slow in doing so. The opposition to the Mississippi bill grows out of the intense reaction to the earlier Kansas and Arizona bills. Here is another article likewise lumping together Mississippi and Kansas (because after all, these bills all come from red states and from legislators unsympathetic to gays and lesbians: "Can anything good come from Mississippi?"). But the opposition to Mississippi's bill crosses a new threshold. It essentially says that it's bad, period, to enact a RFRA, a general rule that substantial burdens on religious freedom must have a strong justification.

As Paul Horwitz notes today, the increasing per se opposition to RFRAs reflects a substantial breakdown of consensus among Religion Clause scholars. My claim is that the opposition to Mississippi's proposal is counterproductive even from the progressive premises that motivate many of the opponents.

The scholars' letter primarily argues that the Mississippi RFRA would send a message that commercial businesses might be exempt from anti-discrimination laws. As in Kansas and Arizona, the focus is on exemptions that would undermine civil rights laws protecting gays and lesbians. But here's the problem: even assuming that RFRAs have any such effect (which is itself highly doubtful), MIssissippi does not have gay-rights laws for a RFRA to undermine (and likely won't in the near future). There is no state law against sexual-orientation discrimination. There are no local laws: as the letter notes, three cities have passed resolutions condemning discrimination, but these are non-binding. The only hypothetical the letter can conjure up involving an actual Mississippi law is wildly implausible. The state "conscience clause" that protects doctors from having to perform procedures that violate their conscience also says that they cannot refuse to treat a patient because of his/her sexual orientation; so the letter hypothesizes that the state RFRA might allow a doctor to simply refuse on religious grounds to treat a gay patient who has AIDS. The letter gives no evidence (because, I expect, there is none) that any doctor has ever made such an objection, let alone successfully. In short: whatever the motivations of the bill's proponents (I do not vouch for their attitude towards gays and lesbians), the Mississippi RFRA would make no difference in the area of gay rights and religious objections.

For critics of the bill, that's one of its many problems. They say that to pass religious-freedom protection, even in the form of a general statute, when objectors to gay rights don't need it is just a mean-spirited slap at gays and lesbians. But if we consider it a little longer, it seems to me, the conclusion should be the opposite.

Whatever the authors' subjective intentions, the far more likely effect of a Mississippi RFRA would be to protect religious minorities, many of them non-Christians, against laws passed in a state whose officials have frequently shown indifference or hostility to minorities. These cases ought to matter far more to liberals than the completely hypothetical conflicts with nonexistent civil-rights laws. RFRAs make a difference because they replace the narrow free-exercise rule of Employment Division v. Smith with a standard that requires the government to offer a strong reason for imposing substantial restrictions on religious practice. In a listserve post, Professor Chris Lund, probably the leading expert on state RFRAs, has cataloged a number of cases in which they have protected religious minorities: for example, "the Native American student who got the right to wear his hair long in A.A. v. Needville Indep. School Dist., 611 F.3d 248 (5th Cir. 2010), the Santeria folks who got to continue their religious rituals sacrificing animals in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), the Jehovah’s Witness who got a bloodless liver transplant that was necessary to keep her alive in Stinemetz v. KHPA, 252 P.3d 141 (Kan. App. 2011)."

There are other cases that were not decided directly under a state RFRA but whose facts could easily recur in Mississippi and in which the state RFRA would likely be crucial to protecting either a religious minority or a religious practice with which progressives should sympathize. In next-door Alabama, the state's draconian law against assisting illegal immigrants was challenged by Catholic, Protestant and other social-service ministries; they had a far better chance of prevailing under Alabama's RFRA than under the Smith rule. The Newark, NJ police department enforced a no-beard rule against a devout Muslim officer for doubtful reasons; the same situation could easily happen in Mississippi, and if so the officer would have a much stronger argument under a state RFRA than under Smith. When a deceased Hmong man was autopsied by a Rhode Island coroner, the family was deeply distressed because they believed the autopsy imprisoned their loved one's soul: but a district judge, after first ruling for the family, then reversed himself under Smith without regard to whether the coroner had a good reason for the autopsy. I've no doubt that if and when Hmongs settle in Mississippi, they could face the same kind of unnecessary imposition from indifference or hostility.

We should judge a proposed law by what its text would do in the legal context, not by the motivations (or  perceived motivations) of its sponsors. The actual effect of a newly enacted RFRA in a state like Mississippi, it seems to me, would be quite different from the picture that was painted.

I want to be clear about the distinctions I see among the recent "religious liberty" bills, because I think the critics have now blown past important differences as they oppose RFRAs wholesale. In my view, the Kansas bill that focused on objections to gay marriage was terrible: it gave no weight to the interests of same-sex couples and was indeed a symbolic slap at them because Kansas has no sexual-orientation nondiscrimination laws from which objectors even arguably needed protection. Unlike a general RFRA statute, the Kansas bill covered only the specific situation and thus provided no religious-freedom benefits in any other situation. I can also understand, while not necessarily agreeing with, people who attacked the amendments to Arizona's state RFRA. Those amendments took a statute  already protecting various religious minorities and added language expllicitly covering claims by for-profit businesses and in claims lawsuits by private parties. If you oppose all exemptions for for-profit businesses, then it made sense to oppose the amendments.

But with the Mississippi bill, we saw opposition to the enactment of a state RFRA in the first place, a statute that will change or clarify the law to protect a wide range of potentially sympathetic religious-freedom claims like those above. And the opposition to the bill rests on hypothetical threats to nonexistent state and local civil-rights laws. I believe that many of the signers of the letter opposing this RFRA value religious freedom in general. But when such utter speculation about nonexistent gay-rights disputes overrides the benefits of protection for minority faiths in many other cases, the result is to dismiss the free exercise of those faiths as quite unimportant.

(All this is water under the bridge for now: the Mississippi proposal is tabled, and politically this is an impossibly toxic time to propose a state RFRA. But I hope the time will come when we can again consider RFRAs on their real merits.)