Douglas Laycock


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: “[T]he free enjoyment of all religious sentiments and the different modes of worship shall be held sacred.” In 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
580 MASSIE ROAD • CHARLOTTESVILLE, VA 22903-1738 • PHONE: 434-243-8546 • FAX: 434-924-7536 • DLAYCOCK@VIRGINIA.EDU

the federal Constitution’s guarantee of religious liberty, and any state agency or local government in Mississippi could urge the Mississippi courts to reverse course and read the new federal rule into the Mississippi Constitution. By putting it in the Mississippi Code, the Act would give religious freedom lasting protection. Its detailed provisions would also give more precise instructions to judges about what to do with religiousliberty claims. The message that some government officials take from Employment Division v. Smith is that they have no obligation to make any religious exceptions, and that they don't even have to talk to religious groups or individuals seeking exceptions. By clearly telling state officials that they have to consider burdens on the exercise of religion, a state RFRA opens the door for discussion. These issues can often be worked out informally if people will just talk to each other in good faith. A state RFRA—like the Mississippi Religious Freedom Restoration Act—would help make that happen. The fact that Mississippi has been interpreting its state constitution—for almost thirty years—to provide the same kinds of protections as the Act should be sufficient proof that the Act will not cause the sky to fall. Moreover, the standard it creates now applies to the federal government and more than 30 of the states, and was the standard for the entire country from 1963 to 1990. In the places where this standard applies, it has not been interpreted in crazy ways that have caused problems for those jurisdictions; if anything, these laws have been enforced too cautiously. These laws typically do not wind up applying to large numbers of cases. But those few cases are often of intense importance to the people affected. We should not punish a person for practicing his religion unless we have a very good reason. These cases are about whether people pay fines, or go to jail, for practicing their religion—in America, in the 21st century. You are authorized to share this letter with anyone who is interested. Institutional affiliations of the signers are for identification only; none of our institutions takes a position on the Act. Very truly yours, Prof. Michael W. McConnell Stanford Law School Prof. Marie Failinger Hamline University School of Law Prof. Richard W. Garnett Notre Dame Law School Prof. Mark S. Scarberry Pepperdine University School of Law Prof. Douglas Laycock University of Virginia School of Law Prof. Carl H. Esbeck University of Missouri School of Law Prof. Robert P. George Princeton University Prof. Emily Hartigan St. Mary’s University School of Law

Prof. Thomas C. Berg University of St. Thomas School of Law (Minnesota) Prof. Mark L. Rienzi Catholic University of America Columbus School of Law Prof. Christopher C. Lund Wayne State University Law School

Prof. Gregory C. Sisk University of St. Thomas School of Law (Minnesota) Prof. Michael S. Paulsen University of St. Thomas School of Law (Minnesota) Prof. Joshua D. Hawley University of Missouri School of Law

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