ROBERT E. SCOTT DISTINGUISHED PROFESSOR OF LAW PROFESSOR OF RELIGIOUS STUDIES ALICE MCKEAN YOUNG REGENTS CHAIR IN LAW EMERITUS, UNIVERSITY OF TEXAS AT AUSTIN
February 11, 2014 Rep. Philip Gunn Speaker of the House Mississippi House of Representatives 400 High St. Jackson, MS 39201 Dear Speaker Gunn, We write to provide you our opinion about the Mississippi Religious Freedom Restoration Act, which recently passed the Mississippi Senate as part of Senate Bill 2681. We heartily endorse the Act, based on our years of teaching and scholarship on the law of religious freedom. The proposed Act is a version of the Religious Freedom Restoration Acts (RFRAs) that have been enacted at both the federal level (to govern federal law) and in eighteen states: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. A number of other states
including Alaska, Hawaii, Indiana, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin
have interpreted their state constitutions to provide similar protection. All in all, more than thirty of the fifty states and the federal government have provided, in one form or another, the protections for religious liberty that would be provided by the Act. In fact, Mississippi too has long provided this kind of protection for religious liberty. Passed in 1890 but still applicable today, Article 3, Section 18, of the Mississippi Constitution specifically addresses the free exercise of religion
he free enjoyment of all religious sentiments and the different modes of worship shall be held sacred.
1985, the Mississippi Supreme Court interpreted this passage to provide the very kind of protection for religious liberty that the Act now establishes by statute.
See In re Brown
, 478 So.2d 1033, 1039 (Miss. 1985)
(noting that only “compelling considerations”
can justify infringing religious freedom). This does not make the Act unnecessary. Article 3, Section 18, of the Mississippi Constitution unambiguously protects religious freedom. But it speaks in quite general terms. State courts are always free to change their interpretations of state constitutions. Future courts hostile to religious liberty might re-interpret Article 3, Section 18, to give less protection to religious liberty (or to give none at all). In 1990, in
Employment Division v. Smith
, 494 U.S. 872 (1990), the United States Supreme Court did just that to