Can Small Businesses Start a Gay Rights Movement in Mississippi? (BusinessWeek)

By Claire Suddath   May 22, 2014

A hair salon displays a window sticker declaring “We don’t discriminate. If you’re buying, we’re selling” on April 22 in Jackson, Miss.

A 600-word provision signed into law by Mississippi Governor Phil Bryant last month will soon prevent the state from ”substantially burden[ing]” people’s religious freedom unless there’s a “compelling justification.” The brief legislation mentions the ”framers of the Constitution” and decades-old court cases while remaining, at least on the surface, rather vague as to its purpose. The law doesn’t mention any specific religions or describe any burdens—as if Mississippi had just reminded everyone that the First Amendment was a pretty good idea.

But the new law, which takes effect in July, has ignited a political firestorm over the belief its broad wording allows businesses to turn away gay and lesbian customers. “The bill will ensure that Mississippi business owners, such as photographers and wedding cake bakers, can refuse to serve homosexuals if they feel that doing so would violate their religious beliefs and moral convictions,” explained the John Birch Society’s New American in an article applauding the law.

The legislation was introduced by Philip Gandy, a Republican state senator who is also a Baptist preacher, and found support from the Christian Action Commission, the Family Research Center, and the state’s division of the United Pentecostal Church. Before passage, a second Baptist pastor who serves in the state legislature, Republican Representative Andy Gibson, told the Jackson Free Press that the  measure was designed to “protect Christians in the state from discrimination.”

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In response, some Mississippi business owners have launched an opposition campaign under the slogan, “If You’re Buying, We’re Selling.” The campaign has already sold over 3,000 “We don’t discriminate” stickers that shop owners can place in their windows, and the stickers have spread as far Oregon, Tennessee, and Texas. In New York, chefs are even protesting an upcoming Mississippi-themed catfish event in Central Park.

“We’ve struck a nerve nationwide,” says the campaign’s co-founder, Joce Pritchett, 46, who owns a civil engineering firm in Jackson and is “not in the closet, but I play by the rules.” “There are a lot of these religious freedom bills going around in the country right now, but this one actually got passed here. And it turns out that even in Mississippi, a lot of business owners are angry about it.”

Mississippi’s law—along with its scrapped predecessor in Arizona—are state versions of the federal law that’s currently at the center of Hobby Lobby’s Supreme Court case. The $3.3 billion craft-store chain owned by a family of Evangelical Christians argues that the 1993 Religious Freedom Restoration Act (RFRA) exempts it from having to cover all types of birth control under the Affordable Care Act. The Obama administration contends that corporations do not qualify for protection under the RFRA. The Supreme Court is expected to release its decision in July, around the time Mississippi’s law will go into effect.

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Taken together, the cases mark the start of an unexpected and almost unprecedented legal battle. “Most of the past RFRA cases involve obscure laws and very minor religions,” says Douglas Laycock, a University of Virginia law professor who has written letters in support of the Mississippi law and filed a brief on behalf of several Christian organizations in the Hobby Lobby case. The questions in front of the Supreme Court and now raised again in Mississippi are big: What are the limits of religious freedom? Do those limits change for corporations? And why has it taken Americans so long to figure this out?

For a long time, courts generally believed that the government couldn’t interfere with someone’s religious practice unless it served a “compelling interest,” which essentially means that the harm caused by the religious practice—say, killing people for human sacrifice—outweighed the need for freedom of religion. When that line was crossed, the government could stop the practice.

But then came the 1990 court case Employment Division v. Smith. It involved American Indians in Oregon who were fired from their jobs and denied unemployment benefits because they had smoked peyote during a religious ritual. The case went all the way to the Supreme Court, which decided against the Indians. Surprisingly, Justice Antonin Scalia wrote in the majority opinion that a compelling state interest was a “luxury” that the government didn’t necessarily have to meet.

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In a “Wait, what? That’s not what we meant at all!” moment, Congress passed the 1993 Religious Freedom Restoration Act that explicitly required the compelling interest. The act passed so overwhelmingly—97 to 3 in the Senate—that when President Bill Clinton signed it into law, he marveled that “the power of God is such that even in the legislative process, miracles can happen.” The law has remained more or less unchanged, aside from a 1997 Supreme Court decision that it applied only to federal laws. When that happened, a number of states passed similarly worded state laws. Everything was more or less legally settled. Until now.

RFRA cases almost always involve individual citizens or religious institutions. But corporations are arguing that in the eyes of the law they are people, too. The RFA doesn’t explicitly agree that they are—but it doesn’t say they aren’t. Lawmakers even argued about this oversight in the 1990s but never resolved it. And for a long time, it wasn’t a problem because few for-profit corporations have concrete religious beliefs.

Hobby Lobby isn’t run like other companies, as Bloomberg Businessweek’s Susan Berfield pointed out in her magazine story in April, which is why its case is so controversial. “You didn’t see a lot of companies coming out in in support of Hobby Lobby,” says Laycock. “Most businesses just want to make money.”

Last year, as the Hobby Lobby fight was gaining steam, several state courts decided in favor of same-sex couples that were denied wedding services. New Mexico, one of the few states that prohibits discrimination based on sexual orientation, found that a wedding photographer violated state law when she refused to photograph a same-sex commitment ceremony. Colorado ruled that a bakery couldn’t turn away same-sex customers who order wedding cakes. Alarmed conservatives in such states asKansas and Tennessee began to push for bills that explicitly protected businesses from serving gay and lesbian customers. None of those bills passed.

Arizona tried a different approach with a bill didn’t mention sexual orientation or wedding services, but it was so sweeping in its language that opponents feared it would achieve such things as allow Muslim cabdrivers to refuse service to women traveling alone. Both Arizona Republican Senator John McCain and Mitt Romney spoke out against it, and Arizona Governor Jan Brewer ultimately vetoed it in February. So far, Mississippi’s bill is the only one that has passed. It, too, is pretty broad.

“It’s a bad business model to say, ‘We’ll only serve these people or those people,” says Pritchett, the business owner and activist fighting the new law. “I’m worried that it could open Mississippi up to discrimination against anyone,” says Eddie Outlaw, a hair salon owner in Jackson who is also fighting the law. “It’s not good for state business. We don’t have a great track record down here.”

Because Pritchett’s engineering firm deals with state transportation projects, she doesn’t know what will happen to her if persons in the government decide they don’t like that she’s gay. “I’m just waiting for someone to call the transportation commissioner and close me down,” she says, half-jokingly.

So Pritchett, Outlaw, and several other Mississippi business owners have started the website, IfYoureBuying.com, and are in the process of launching a national campaign for business owners who want to assure customers that they won’t be turned away. “I honestly didn’t think a movement like this would happen here—I didn’t know so many of us existed,” says Pritchett.

Mississippi hasn’t had much in the way of a gay-rights movement until now; the Human Rights Campaign is launching an $8.5 million civil rights campaign in the Deep South to address this disparity. A 2013 Public Policy poll found that 69 percent of Mississippi residents were against same-sex marriage, a much higher proportion than in than the rest of the country. Perhaps surprisingly, however, almost the same number (66 percent) agreed it was a wrong to let businesses discriminate against people based on sexual orientation.

There’s still a chance Mississippi activists can turn the broad new religious freedom law to their own ends. “I’ve heard that there are couples waiting to file lawsuits the day the bill becomes law, saying it’s against their religion not to be able to get married,” says Pritchett. “This could work against [the bill’s supporters] in a really big way.”