After a week of ups and downs for a measure that civil-liberties groups say could lead to legalized discrimination of LGBTQ people, a modified version now goes to the House of Representatives for debate.
An early version of the proposed Mississippi Religious Freedom Restoration Act that passed the Senate unanimously in late January drew sharp criticism as opening the door for legalized discrimination.
Opponents charged that the bill would permit business owners to refuse service to customers, citing religious beliefs.
However, a House committee amended the proposal to apply to only actions of governments, said Matt Steffey, a constitutional scholar at Mississippi College School of Law.
"The new bill requires government action; the old bill did not," Steffey said.
Steffey said the amended bill also requires a "substantial burden" on an individual's religious beliefs in order for those individuals to make a claim under the law. Adding "substantial burden" would also enable courts to dismiss frivolous lawsuits, Steffey said.
The change came after fierce nationwide protests. Civil-liberties groups were especially worried about the law's effect on the LGBTQ community, which federal anti-discrimination laws do not protect in the same way that racial, ethnic and religious minorities, for example, are protected.
A legal objection to SB 2681 on the basis of sexual orientation could have a tougher fight in the courts than other types of discrimination, observers say.
"The bill as amended mirrors the existing state statute (and) does an awful lot to mute the criticism that the Legislature is trying to follow suit (with Arizona)," Steffey said, where lawmakers passed a similar bill before Gov. Jan Brewer vetoed it last week amid concerns about economic development.
"It's bad for the state of Mississippi, it's bad for the people of Mississippi, and it's bad for business," said Jed Oppenheim, advocacy coordinator for the ACLU of Mississippi, one of the groups that has been busy circulating literature about the proposal, and remains cool to the amended bill.
"This bill has nothing to do with faith and everything to do with codifying shameful discrimination," said Chad Griffin, president of the Human Rights Campaign, in a press statement about the original Senate bill. "We have seen businesses, people of faith and political leaders from both sides of the aisle speak out against this type of legislation. Passing this bill would not only place Mississippi firmly on the wrong side of history, it would hurt the state's economy and tarnish its reputation."
At first, SB 2681 seemed to catch progressives flatfooted because its Republican sponsors presented only the part of the bill that would add "In God We Trust" the state seal—seemingly relatively harmless.
"We learned in the vetting of this bill that is clearly not the sole purpose of the bill," said Brandon Jones, executive director of the Mississippi Democratic Trust, which provides support to Democratic candidates and lawmakers.
"No one mentioned anything about discriminatory practices. There were no questions that it passed overwhelmingly. It also tells me that the folks who knew what was in this bill must not have felt too proud about it because, when they were presenting, they didn't fully explain it."
Sen. David Blount, a Jackson Democrat, admitted that he and many of his Senate colleagues were unaware the bill did more than add words to the state seal when they voted in favor of it.
"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 SB 2681," Blount said in a statement posted online.
When asked about the bill's chances of passing in the House—the House Judiciary A Committee has yet to act on it—Jones, a Pascagoula native and a former member of the House of Representatives, said Republican leaders have a history of passing knee-jerk legislation.
"You certainly can't assume that a bill like this one won't pass," he said. "I think that what some of us would like to see, at a minimum, is that some of these most negative parts of this bill will be amended out and the bill stopped." For example, Mississippi is currently embroiled in a lawsuit over the constitutionality of a 2012 law requiring free-standing abortion providers to only use doctors who have admitting privileges at a local hospital.
Jones said the bill harkens back to the days of Jim Crow laws in which businesses had the legal protection to subject African Americans to inferior customer service, requiring blacks to enter through back doors and wait until all white customers had been served first or not be served at all.
The Rev. C.J. Rhodes, director of Oakland Memorial Chapel at Alcorn State University, agreed that SB 2681's broad language is similar to Jim Crow-era "black codes."
"Upon reading the bill, the scope of the language is so broad and vague that it could very well, especially in regards to businesses, create exclusionary, discriminatory behavior," Rhodes said about the proposed bill.
Not only could it exclude LGBTQ individuals, but the bill could also allow discrimination against race or nationality, Rhodes told the Jackson Free Press last week.
"I don't think it could just be the LGBTQ community because the language is so broad. It could be LGBTQ, it could be Mexicans, it could be a whole host of things," Rhodes said. "The question is: Does the state have the right to allow private businesses to make these sort of sweeping generalizations?"
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