When Liberties Collide

In April, Mississippi became the first state in the nation to succeed in establishing broad religious freedom protections in the wake of the U.S. Supreme Court’s 2015 ruling legalizing same-sex marriage.

When Gov. Phil Bryant signed the Religious Liberty Accommodations Act (RLAA)—also known as the Protecting Freedom of Conscience Against Government Discrimination Act—into law on April 5, supporters hailed it as a common-sense, balanced effort to avoid a collision between religious liberty and the expansion of homosexual privileges. The law prevents the state from taking action against people or institutions—including pastors, churches, adoption agencies, surgeons, counselors and wedding vendors—for acting in accordance with their traditional views about marriage, family and human sexuality.

“The Supreme Court overreached in redefining marriage,” says Roger Severino, director of the Heritage Foundation’s DeVos Center for Religion and Civil Society in Washington, D.C. “We should not be surprised that people are reacting to defend religious freedom by passing common-sense and balanced bills.”

But the backlash against the law was swift and harsh, with media outlets describing it as “bigotry.”

Based on such criticism, many businesses and politicians announced tourism bans against Mississippi, and two organizations—the American Civil Liberties Union and the Campaign for Southern Equality—filed federal lawsuits within weeks.

But Severino says the need for such religious-liberty protections is only increasing as the Left forces its views about marriage and sexuality upon the nation.

“The LGBT left is using a winner-take-all approach and is not satisfied with a court-imposed redefinition of marriage,” he explains, “but seeks to force everyone to affirm this new sexual and gender ideology or face government penalties.”

A Collision Course

Observers on both sides of the marriage debate have been predicting an oncoming collision between gay activists and defenders of religious liberty for years. It started in late 2003 when the Massachusetts Supreme Judicial Court ruled 4-3 that same-sex couples could legally marry in the Bay State, and picked up steam in May 2008 when the California Supreme Court declared that no basis existed for limiting marriage to the union of a man and a woman. The Connecticut Supreme Court also ruled in favor of same-sex marriage that October.

“Redefining marriage to include same-sex unions poses significant threats to the religious liberties of people who continue to believe that marriage is a relationship between man and a woman,” wrote Thomas Messner, senior fellow in legal policy at the Charlotte Lozier Institute in Washington, D.C., following the Connecticut decision.

Other states soon began to follow in their steps, declaring either through courts or legislative actions that same-sex marriage was valid. 

Still, when the U.S. Supreme Court ruled in favor of same-sex marriage in June 2015 in Obergefell v Hodges, the ruling nullified constitutional amendments in 12 states—including Mississippi—that defined marriage as between a man and a woman.

Around the same time, reports of lawsuits against wedding vendors—bakers, florists and photographers—began to appear in the news.

One of those cases involved Aaron and Melissa Klein of Gresham, Ore., the owners of Sweet Cakes by Melissa. Last July, the Kleins were ordered by the Oregon Bureau of Labor and Industries to pay a fine of $135,000 after they declined on religious grounds to bake a cake for a same-sex wedding ceremony. 

Like the Kleins, Josh Marks and his wife, Laurie, are wedding vendors, the owners of Thousand Words Photography in Meridian, Miss. Also like the Kleins, they believe God designed marriage to take place only between one man and one woman. And for that reason, they could never put their stamp of approval on same-sex marriage by contributing their creative abilities to the wedding ceremony.

Yet, until they heard the Kleins’ story last summer, they never really expected they could face government fines for refusing to shoot same-sex weddings.

“It was just a little bit unnerving to think that was a possibility,” says Marks. So he and his wife gave a sigh of relief when Mississippi established the RLAA. “There’s very much peace of mind,” he says, “to think that we’re now safe doing what we do.”

Discrimination in Mississippi?

After signing the RLAA into law, Gov. Bryant announced that it exists precisely to bring such peace of mind by protecting people who cannot in good faith support same-sex marriage. The RLAA, he said, “merely reinforces the rights which currently exist to the exercise of religious freedom as stated in the First Amendment to the U.S. Constitution.”

Mississippi Baptist Convention spokesman William Perkins says the law’s protection is welcome.

“We are certainly in favor of the religious liberty protections that it provides,” he tells Citizen. “It’s sad that the First Amendment to the Constitution of the United States is no longer sufficient to protect religious people.”

By contrast, activists and businesses supporting LGBT causes have decried the law as discriminatory. The American Civil Liberties Union filed a federal lawsuit at the U.S. District Court for the Northern Division of Mississippi in Jackson on May 9, urging the court to block the law prior to its enforcement on July 1. The following day, the Campaign for Southern Equality filed another lawsuit at the U.S. District Court for the Southern Division of Mississippi in Gulfport. The courts’ decisions were pending at press time.

But Lance Kinzer, director of policy and government relations at the 1st Amendment Partnership in Washington, D.C., says those are false accusations based on emotion.

“Very often, claims of discrimination are not related to the actual content of the bill,” he explains. Efforts to protect religious liberty are “pegged as discriminatory” simply because they send “a message”—broadly speaking—“that we’re not a welcoming community, a message that is discriminating in tone.”

But in reality, such laws “act to stop the government from being discriminatory” against people of faith who still affirm marriage as the union only of a man and a woman, Kinzer says.

Severino agrees.

“The (RLAA),” he tells Citizen, “is a precise and balanced response to the Supreme Court redefining marriage and overturning Mississippi’s popularly enacted constitutional amendment defining marriage as the union of one man and one woman.”

And it is specific, applying only to religious beliefs about marriage and human sexuality: namely, beliefs that marriage is “the union of one man and one woman,” that “sexual relations are properly reserved to such a marriage,” and that “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at the time of birth.”

Among its provisions, the law declares that the state can’t penalize:

• people who, based on their religious beliefs, decline to provide photography, baking or similar services for a same-sex wedding;

• organizations that, for religious reasons, implement “sex-specific standards or policies” regarding bathrooms, locker rooms or dressing rooms;

• adoption agencies that, because of their religious beliefs, will not allow same-sex couples to adopt children in their care;

• churches and other religious organizations that decline to host or solemnize same-sex marriages or that make decisions about employment based on their religious beliefs; and

•counselors or surgeons who on religious grounds decline to take part in sex-reassignment surgeries or the transition of gender identity, although Severino points out that it ensures “no one is denied emergency care or visitation rights.

Ultimately, Severino says, RLAA “keeps government out … so that one view of human sexuality will not be imposed on everybody by force of law.” And this promotion of religious liberty has “broad support” across the nation.

“When you put it to a popular vote, it is a winning issue,” he explains. “However, we’re seeing that the cultural Left and big business have teamed up to bully state governments with threats of boycotts and economic retaliation for standing up for religious liberty.”

The Economics of Religious Liberty

Indeed, companies like Tyson Foods, MGM Resorts International, Nissan and Toyota spoke out against the law. Moreover, the governors of Minnesota, New York, Vermont and Washington, as well as the leaders of various cities, banned non-essential, state-sponsored travel to Mississippi. 

Of course, Mississippi hasn’t stood alone in receiving such warnings and threats. Efforts to broadly protect religious liberty in Georgia and Missouri failed earlier this year because of such pressures. North Carolina, which passed a narrower law this spring requiring individuals in government buildings to use the restrooms for the gender listed on their birth certificates, likewise is facing the threat of tourism bans from several states and cities; PayPal scrapped a plan to invest $3.6 million and hire 400 people at an operations center in Charlotte, and in May, the U.S. Department of Justice sued the state.

Yet, says Kinzer, threats of economic sanctions will carry little weight in the long run.

“There is a strong link between the free exercise of religion and economic health,” he explains. So any efforts to protect religious freedom will ultimately result in a healthier society, and a more robust economy.

Moreover, most of the businesses speaking against the law won’t put their money where their mouth is at the end of the day, he says. Threats don’t cost money, and ultimately many of these threats will remain just that—simply threats. Financial growth will drive their long-term business decisions. 

“I don’t believe that, for the long term, businesses will be making decisions about where to do business based upon these issues,” Kinzer says. “Their concern is really to put out a cultural marker and try to affiliate with an ascendant view of marriage, family and sexuality. This is much more about politics than about any real concern about the discriminatory effect of these laws.”

If businesses were truly concerned about potential discrimination, Kinzer says, wouldn’t they also pull their businesses out of those states that passed broad Religious Freedom Restoration Acts (RFRAs) two decades ago? 

Modeled after a federal RFRA signed into law in 1993, state RFRAs provide protection for religious citizens when laws conflicts with their sincerely held religious beliefs. RFRAs require the government to show prove a “compelling interest” for quelling someone’s religious expression and that less restrictive alternatives for pursuing the state’s interests have already been explored. RFRAs exist in 21 states, including Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Virginia. 

Left-leaning businesses are not only ignoring long-standing state RFRAs, but also international discrimination against LGBT people. Why, Severino asks, are these businesses still willing to work in predominantly Muslim nations that penalize homosexual conduct—sometimes with death?

“The big business interests that have come out against religious liberty need to look in the mirror because they have operations in countries that criminalize the same-sex conduct of their own employees,” Severino says. “Yet because they’re still making money in those countries, they’re not pulling out.”

Ultimately, he says, the religious-liberty victory in Mississippi will “prove the Left wrong, because the sky will not fall.”

Kinzer agrees.

“I think the difficulty is that we live in a culture that is increasingly unsure about what the appropriate role of religion is in society,” he says. “It may be an emerging societal consensus, unfortunately, that free exercise really should be restricted to what happens within the four walls of a church, purely to worship or individual belief, that we shouldn’t be protecting manifestations of belief as they work themselves out in the public square.”  

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