On Thursday, ThinkProgress reported that Mississippi lawmakers had amended a “religious liberty” bill (SB 2681) to remove provisions that would have allowed for anti-LGBT discrimination, like Arizona’s SB 1062 would have. The text of the amendment is not yet public, but new insights into Mississippi law suggest that there may not be any version of this bill that is not problematic in this way.
It’s helpful to understand what exactly was problematic with Arizona’s bill to appreciate why Mississippi’s bill might not be salvageable. Several states (including Arizona), as well as the federal government, already have a law on the books known as the Religious Freedom Restoration Act (RFRA). RFRA basically reinforces the idea that the government cannot impose on individuals’ religious practice, and it was originally passed in the 1990s with Native American spirituality in mind. Under RFRA, for example, the government could not intrude on Native Americans’ sacred land or deprive them of using peyote in religious ceremonies.
Arizona’s attempted upgrade to RFRA would have expanded the law in two problematic ways. First, it contained a provision that allowed for religious belief to be used as a defense in any proceeding, not just a proceeding between an individual and the government. Thus, it would no longer be about protecting religious beliefs from the government, but would actually allow individuals to assert their religious belief against each other, such as if one citizen sued another citizen. This is the provision that was removed from Mississippi’s bill, suggesting that it was a typical RFRA bill with no new complications.
The other alarming issue about Arizona’s bill was that it redefined the word “person” to include “any individual, association, partnership, corporation, church, religious assembly or institution, or other business organization.” This corporate personhood would have meant that if the Phoenix Human Relations Commission attempted to fine a business for discriminating on the basis of sexual orientation, for example, the business itself could use religious beliefs to defend that practice. Similar to the imposition of the other expansion, this would have changed the nature of RFRA from protecting private religious practice from government intrusion to allowing for licensed business owners to impose their beliefs on the public.
Nothing in Mississippi’s bill attempted to define “person,” which suggested that this second provision wasn’t a problem in that legislation. Mississippi state law, however, has this problem built in. According to Title 1, Chapter 3, Section 39 of Mississippi state code, a “person” is defined as such:
The term “person,” when used in any statute, shall apply to artificial as well as natural persons; and when used to designate the party whose property may be the subject of offense, shall include the United States, this state, or any other state, territory, or country, and any county, city, town or village which may lawfully own property in this state; also all public and private corporations, as well as individuals.
With this law already in place, any version of RFRA in Mississippi — even one identical to those in other states — would seemingly open the door to legitimized discrimination by businesses.
RFRA itself, as it has been passed in other states, does not implicate nondiscrimination protections in this way. For example, New Mexico has a RFRA on the books, but that didn’t stop the New Mexico Supreme Court from unanimously ruling against Elane Photography for refusing to take pictures for a same-sex commitment ceremony. But corporate personhood would make it a very different law.
One other provision in Mississippi’s bill that could also be problematic is the standard it sets for how much the government can intrude on a person’s religious belief. Other RFRA laws simply state that the government shall not “substantially burden” religious beliefs. Mississippi’s bill suggests that only a “government interest of the highest magnitude” would be allowed to burden the exercise of religion. It’s not clear what would qualify as the “highest magnitude,” but that change in language could open the door for individuals to use their religious beliefs to circumvent laws or government actions in ways that have not previously been demonstrated.
The fate of Mississippi’s bill is unclear, both in terms of how it may have been amended this week and what chances it has to advance. Thanks to the backlash in Arizona, these complicated issues are coming to light to reveal whether this legislation would allow for harmful discrimination under the guise of “religious liberty.”