Mississippi lawmakers resurrect ‘license to discriminate’ bill, SB 2681

Jackson_marriage_rally 031Photo by Ashton Pittman.

Senate Bill 2681 has returned to the Mississippi legislature, resurrected by Senate and House Republicans during the last week of the three-month legislative session. SB 2681, the Mississippi Religious Freedom Restoration Act (PDF here), is one of many bills introduced in the states this year aimed at creating a “license to discriminate” against lesbian, gay, bisexual, and transgender people into law.

SB 2681 was filed as a conference report just 13 minutes before the 8 pm deadline.

Opponents thought the bill had been temporarily defeated in early March when the controversial language was amended to institute a study committee in its place. Now, it’s closer to its original form.

Section 1 of the bill says, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in paragraph (b) of this subsection.”

In practical terms, for example, that would mean that a hotel or restaurant owner could refuse service to gay customers while claiming “exercise of religion” and government would have no recourse.

New to the bill is this, found in lines 16-18 of Section 1:

(b) Laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; (c) Government should not substantially burden religious exercise without compelling justification;

The target of this section seems to make it clear that the bill is meant to reach far beyond just attacking LGBT rights. In fact, it seems to hint at a case before the Supreme Court right now, Sebelius v. Hobby Lobby. In what could prove to be a landmark decision, the Supreme Court will decide whether or not corporations can refuse to provide female employees healthcare that includes birth control on the basis of religious belief (and thus whether or not corporations are people with all the rights people enjoy – including free exercise of religion).

The requirement that all healthcare plans include birth control for women may be one of those “neutral” laws that SB 2681 now mocks with quotation marks. This bill would make it clear that employers in Mississippi can refuse to comply with laws that don’t like on religious grounds. So if an employer who happens to be a Jehova’s Witness wants to deny employees access to healthcare that includes blood transfusions (which Jehova’s Witnesses are religiously opposed to), the government would have to provide a compelling justification before “interfering with” the employer’s “free exercise.”

The possibilities the quote-unquote “neutral” language introduces are truly myriad. The point, of course, is to say that there is almost nothing over which a claim of religious belief does not take precedence. A law doesn’t have to be intended to interfere with religious exercise; a religious person just has to claim it interferes.

This version of the bill goes beyond protecting free exercise of religion, instead solidly establishing claims of religious exercise in a privileged position above all else.

The bill makes explicit that it applies to all state laws, rules, regulations, and municipal and county ordinances. That could jeopardize recent advances made in Starkville, Hattiesburg, and Oxford, where anti-discrimination effort – including discrimination against LGBT people and other minority – via diversity resolutions have passed to great fanfare in recent months.

The bill still protects the interests of the business community, ensuring that “nothing in this act shall create any rights by an employee against an employer if the employer is not the government.” So, while the act does mean that employers can discriminate against employees and customers on the basis of religious exercise, employees are definitively barred from doing the same in reverse.

The Arizona-style “license to discriminate” bill goes back to a vote on the Mississippi House and Senate floors for an up-or-down vote. The bill would also amend the state seal to add “In God We Trust.” No further changes will be allowed. If it passes both houses, SB 2681 then goes to the governor’s desk.

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