he debate over Senate Joint Resolution 39 in the Missouri Legislature has been emblematic of the state of political discussion in America today.
Supporters of the proposal, which would make it legal for certain businesses to discriminate against gay people if they had a religious opposition to same-sex marriage, say they are standing up for religious freedom. If you’re against the bill, they say, you are attacking Christians.
Opponents of the resolution (and I am one) point out that same-sex marriage is the law of the land and that allowing discrimination by certain businesses opens a constitutional Pandora’s box. We sometimes use words like “hateful” to describe the motivations of those on the other side.
There is very little middle ground.
But a group of law professors may have cut through the noise.
Thirteen law professors with expertise in constitutional law, religious freedom and civil rights sent a 10-page memo to Missouri House Democrats that carefully, and with nuanced language, explains how SJR 39 tilts the existing balance between constitutional rights too far in one direction. The Democrats, including the House’s only openly gay member, St. Louis attorney Mike Colona, shared the legal analysis with their Republican colleagues. Enough of them on the House committee considering SJR 39 were influenced by the arguments that a vote on the resolution was delayed.
The memo doesn’t question the motivations of the Republicans who are pushing SJR 39; it doesn’t talk about potential devastating economic consequences as a result of business boycotts. Instead, it asks them to consider the Constitution that so many members of the GOP suggest is their guiding document.
“In the name of promoting religious diversity and freedom of conscience, SJR 39 disrupts the careful balance set forth in the U.S. Constitution, a balance between private religious practice, nonendorsement of religion by the state, and other fundamental rights such as rights to equality and liberty,” wrote the professors, who hail from Washington University, St. Louis University, the University of Missouri-Kansas City and Columbia University.
“It substantially oversteps the limitations on state action set out by the Establishment Clause by privileging religious believers and immunizing them from compliance with laws generally applicable to all other citizens of the state.”
SJR 39, the professors said, “essentially creates an immunity from liability and a license to discriminate in the name of religion.”
Missouri clergy already have rock-solid First Amendment protections in place, the law professors argue. But extending such protections to certain private businesses using overly broad language disrespects the intent of the balance struck by the Founding Fathers.
“By exempting certain religious entities and believers from an obligation to treat all Missourians equally, SJR 39 sacrifices the equality rights of many in order to accommodate the religious preferences of a few,” the professors write.
(Excerpted from St. Louis Post Dispatch 4/25/16)