On Thursday, Mississippi Governor Phil Bryant signed S.B. 2681, the Mississippi Religious Freedom Restoration Act, into law, bringing the state into line with federal law on the issue of religious freedom. To their credit, Mississippi's elected officials read the bill's text and did not yield to egregious misrepresentations of what is a fair and reasonable religious liberty measure. Why anyone thinks this bill is a bad thing is tough to know. Why this should be so controversial is even more perplexing.
The Free Exercise Clause of the First Amendment to the U.S. Constitution states: "Congress shall make no law … prohibiting the free exercise" of religion. The aim of the Free Exercise Clause is relatively clear from its text – to protect individuals wishing to freely exercise their faith from being restricting in doing so by the government. Historically, its interpretation by the U.S. Supreme Court has been less clear.
In Sherbert v. Verner (1963), and Wisconsin v. Yoder (1972), the Supreme Court explained that before the government could infringe on and burden religious exercise, it had to show that its burdensome regulations were advancing a compelling government interest, and were the least restrictive means to advance this interest. This requirement is known as "strict scrutiny," which is the toughest standard for the government to meet when it seeks to infringe on constitutional rights. Yet in its 1990 decision Employment Division v. Smith, the Supreme Court significantly restricted free exercise rights, holding that laws infringing on religious exercise did not violate the First Amendment as long as they were neutral and generally applicable.
Many rightly saw Smith as a reduction in the protection afforded religious liberty, and the reaction to the Court's decision was overwhelming. A coalition of groups from across the religious spectrum, including such unlikely partners as the Southern Baptists' Ethics and Religious Liberty Commission and the ACLU, came together to urge Congress to pass a law restoring the application of the strict scrutiny test to free exercise claims. The political support was also overwhelming, and in 1993, the federal Religious Freedom Restoration Act (RFRA) was passed unanimously by the U.S. House, 97-3 by the Senate, and signed into law by President Clinton. Upon signing RFRA into law, President Clinton described the event as "majestic" – it demonstrated "our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished." He reminded us we should not be "embarrassed to … advocate a course of action simply because they believe it is the right thing to do, because they believe it is dictated by their faith."
In 1996 the U.S. Supreme Court held in City of Boerne v. Flores that RFRA's protections only apply to federal and not state and local regulations. Since then, state legislators and governors across the country have responded by passing laws modeled after the federal RFRA.
Yet Mississippi had no law offering the level of protection available in the federal RFRA. Until now, a Mississippi church that was denied permission to operate by a zoning board, or a faith group that was barred by a municipality from preaching and serving food to the poor and homeless, still had no heightened religious protection from the Mississippi state or local governments. This law will protect people of faith like Pastor Telsa DeBerry in Holly Springs. When the city of Holly Springs used an ordinance to try to prevent Pastor DeBerry from building a new church in the downtown area, he stood up to the city. "Just because I'm a Christian, I'm no less an American. I'm no less a citizen," Pastor DeBerry said. However, without the protection of a state RFRA, he had to sue in federal court and was wrapped up in two years of litigation before settling his case. Pastor DeBerry testified before the Mississippi Legislature in support of S.B. 2681, explaining the law would have enabled him to seek justice more easily and with less expense in state court.
This law will not create a unilateral "free for all" in the name of religion. Rather, the law will simply make it harder for the government to justify its restriction when a claim of religious exercise is advanced in legal proceedings. Under S.B. 2681, the person claiming the law's protections still has to establish in court that they have a sincerely held religious belief, and that this belief is tied to a religious practice that is substantially burdened by the government. Moreover, even if a person makes these showings, the government can still burden religious practice if it can show that its regulation advances a compelling government interest and is the least restrictive means of furthering that interest.
The Mississippi Religious Freedom Restoration Act does not provide a blank check to act as one wishes in the name of religion. Instead, Mississippi's RFRA crucially recognizes the importance of religious freedom as our First Freedom, and simply applies heightened protection to religious exercise claims with the same vigor it is applied to other provisions of the Bill of Rights – something all Mississippians deserve.