Most Americans are aware of the recent controversy in the state of Arizona, in which the legislature passed a bill which would have given business owners the right to refuse service to gays and lesbians on religious grounds. After facing intense pressure from opponents of the bill, including Arizona’s two Republican Senators, Governor Jan Brewer ultimately vetoed the measure.
What most people don’t know is that a bill very similar to the one debated in Arizona was quietly proposed in the state of Mississippi. And while the Arizona law was eventually vetoed, the Mississippi bill was just signed into law by Governor Phil Bryant.
The new law, misleadingly titled The Mississippi Religious Freedom Restoration Act, had some of its most divisive language modified before its final passage. The big question is whether the law will be able to pass Constitutional muster, if challenged.
The law prohibits any “state actions” that “burden a person’s right to exercise of religion” unless the actions are “essential to further a compelling government interest” and “the least restrictive means” of furthering that interest.
As you can see, the law is facially neutral and does not specifically allow for discrimination against the LGBT population. However the fear is that it will be used for this very purpose.
For example, a business owner could refuse to hire a LGBT person by asserting that doing so goes contrary to their devout religious beliefs – and make the claim that any state law or local ordinance which seeks to end employment discrimination against gays is at odds with the Restoration Act.
When this new law in Mississippi finally ends up in the U.S. Supreme Court, I expect it to be struck down, not for being unconstitutional on its face, but due to its application.
In the landmark 1995 case Romer v. Evans, the Court made clear that it did not have much patience for laws which seem designed specifically to discriminate against gay and lesbian individuals. If the new Mississippi law is being used to accomplish this goal, the Court will hopefully apply the Romer precedent to hold that the law’s true goal of promoting and legitimizing discrimination against a specific group violates the Equal Protection Clause of the 14th Amendment.
Laraine E. Schwartz, Esq.
Winograd and Schwartz Attorneys at Law, PC