UPDATED: House subcommittee tosses discrimination elements from religious freedom bill
by Ted Carter
Published: February 26,2014
The Mississippi House of Representatives Civil Subcommittee late Wednesday voted to strike provisions of a so-called “religious freedom” bill that the ACLU and other legal experts said invites widespread discrimination, especially against gay, lesbian and trans-gender people.
The action came on Senate Bill 2681, a measure approved 48-0 on Jan. 31 and sent on to the House. The bill was more popularly known for an amendment that requires inserting “In God We Trust” into the state seal, but a closer examination of it led legal experts to conclude that it would allow private businesses and government entities to discriminate based on religious grounds.
The subcommittee removed a key provision of SB 2681 ahead of Thursday’s consideration of the bill by the House Judiciary Committee B. The provision provides that a defendant in a discrimination lawsuit can assert a claim of defense on the grounds of a burden being placed on religious beliefs.
The ACLU said the provision would allow businesses to turn away customers on religious grounds and government officials to refuse to hire based on religious beliefs.
Seeking to quell the tide of state and national opposition that has grown the past couple of days, the Civil Subcommittee voted to mold the bill after the federal government’s 1993 Religious Freedom Restoration Act. The amendment limits the bill to addressing actions by government — not individuals or businesses.
The amended bill is far more acceptable to the Mississippi business community, said Blake Wilson, president & CEO of the Mississippi Economic Council, which serves as the state Chamber of Commerce.
Wilson said the leadership of Rep. Joey Hood, chair of the Civil Subcommittee, and Judiciary Committee B Chairman Andy Gibson helped to “work this out.”
What the judiciary panel will get “is not the same bill” as the original SB2681, Wilson said.
The MEC chief said the original measure came out of the Senate with “unintended consequences.”
The subcommittee’s amendments followed warnings from the Mississippi chapter of the ACLU SB2681 would invite discrimination by both the private and government sectors.
It’s passage, the ACLU said, would hearken to Jim Crow-style discrimination practices in place in Mississippi and elsewhere before passage of civil rights laws in the mid 1960s.
While the national media has focused on a similar law in Arizona and whether Gov. Jan Brewer will veto it, the ACL said the measure approved by the Mississippi Senate would provide for a broader level of discrimination. Under the original SB2681, not only could a business refuse service to someone on religious grounds, government agencies could refuse to hire or retain employees based on a department head’s religious belief, said Jennifer Riley-Collins, an attorney and executive director of the Mississippi ACLU.
“This bill allows a person to claim an exemption from” state and federal civil rights laws, Riley-Collins said.
“We are worried that this bill is broader than the Arizona bill. The bill would allow the government funding of discrimination by defining ‘burden’ to include withholding government benefits. “
In Arizona, lawmakers have belatedly learned that the religious freedom bill they passed and sent to the governor opens the door for businesses to refuse service to gay, lesbian and transgender people on religious burden grounds. Some, including legislative leaders, admitted to not having read the legislation and have asked Gov. Brewer to veto the bill.
In Mississippi, courts will be clogged with discrimination lawsuits against the state and private businesses through enactment of the original version of SB2681, Riley-Collins predicted.
She said it would not take long for a test case challenge to arise once the legislation went into effect.
Unless personally requested by a senator, it is unlikely Senate lawyers provided legal guidance to the Senate Colleges and Universities Committee members before they voted to forward the bill to the full Senate. Veteran representative and Democratic House leader Bobby Moak said legal counsel would take no position on the legal soundness of a measure before a vote unless asked by a member.
And members, Moak said, are not inclined to ask. “The egos are too big here. Everybody knows more than the lawyers,” he said, only half jokingly.
He said he thinks they “were probably all wrapped up in this ‘In God We Trust’ language” and didn’t seek out sufficient information on the rest of the legislation.
Sen. David Blount, a Jackson Democrat, said on Facebook Tuesday morning that he was unaware that SB2681 included language that could be interpreted as discriminatory.
He would not comment further in an interview Wednesday. He declined to say what level of review he gave the bill ahead of voting for it.
“I was not aware (nor was any other senator or interest group or citizen that I have talked to aware) of this intention or possible result when we voted on the bill on Jan. 31,” he said.
“I am opposed to discrimination of any kind, including discrimination based on sexual orientation. Obviously, I should have (all of us should have) been aware of this. I have already talked with House members about removing language relating to legalized discrimination in SB2681.”
The ACLU’s Riley-Collins said her staff has been at the Capitol seeking to brief lawmakers on the ramifications of SB2881. “As I watched this thing unfolding I came back to my staff and said, ‘Let’s tell our elected officials not to get duped.’ This is not about religious freedom.”
Riley-Collins, a Mississippi native, said such legislation only reinforces an image of Mississippi depicted pitted in such films as Mississippi Burning, a retelling of the June 1964 killing of free college students in Neshoba County and the FBI investigation of the murders.
In an interview before the Civil Subcommittee voted Tuesday, Moak said he thinks House members will give the bill far more scrutiny than did their Senate counterparts and will remove any discriminatory language.
“I believe knowing now what we know, that bill cannot be considered with the language it has,” he said.
Passing it, he said, would “simply be asking for the scrutiny that you deserve.”
The MEC’s Wilson issued a statement on behalf of the statewide business organization after Wednesday’s subcommittee vote:
“As the State Chamber of Commerce for a state that has proven its hospitable and business-friendly approach, MEC opposes efforts that would intentionally or unintentionally prevent Mississippi businesses from implementing and enforcing non-discrimination policies impacting their customers and employees.”
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