Lathan Watts and Jeremy Dys

Guest Columnists

The recent ruling by the United States Court of Appeals for the Fifth Circuit on Mississippi House Bill 1523, the “Protecting Freedom of Conscience from Religious Discrimination Act” is the latest, but not likely the last, word in an ongoing American conversation on religious liberty.

The opinion focuses almost exclusively on the issue of standing, whether the plaintiffs who filed suit in the case have suffered any harm or whether any anticipated harm is certain enough to give them the right to sue. The opinion rightly rejected the lawsuit because it is really impossible to determine whether a religious adherent will meet the test outlined in H.B. 1523.

More:Controversial HB 1523 now Mississippi's law of land

More:5 things you need to know about HB 1523

The Mississippi law merely guarantees a process, it does not guarantee an outcome for people of faith. Whether a person of faith invoking the law will, in fact, prevail remains unknown. In that regard, it is the latest in a tradition dating back to Senator Ted Kennedy.

In the early 1990’s, Senator Kennedy, along with Senator Orrin Hatch, led a bipartisan effort to pass the Religious Freedom Restoration Act (RFRA). As envisioned by Senator Kennedy, RFRA would remedy the damage done to religious freedom in the wake of Employment Division v. Smith, a decision—written by the late, conservative Justice Antonin Scalia—that unraveled decades of Supreme Court precedent protecting religious liberty.

Kennedy saw a threat to religious liberty and moved to protect our first freedom. “The compelling interest test has been the legal standard protect­ing the free exercise of religion for nearly 30 years,” said “the Lion of the Senate” in his opening remarks before the Senate Judiciary Committee considered RFRA in 1992. “Yet, in one fell swoop the Supreme Court [in Smith] overruled that test and declared that no special constitutional protection is available for religious liberty as long as the Federal, State, or local law in question is neutral on its face as to religion and is a law of general application. Under Smith, the Government no longer had to justify burdens on the free exercise of religion as long as these burdens are ‘merely the incidental effect of a generally applicable and otherwise valid provision.’”

According to the liberal leader of the United States, Smith left the constitutional protection of religious liberty vulnerable to the very government it was intended to restrain. Senator Kennedy clarified the intent of his bill, “In essence, [RFRA] codifies the requirement for the Government to demonstrate that any law burdening the free exercise of religion is essential to fur­thering a compelling governmental interest and is the least restric­tive means of achieving that interest.”

Kennedy’s hope was to restore a fair standard under which government could govern and Americans could exercise religious liberty. But, would the act go to far? Did it give religious litigants a trump card over the rest of their fellow citizens?

Ted Kennedy did not think so: “The act creates no new rights for any religious practice or for any potential litigant. Not every free exercise claim will prevail.”

Kennedy was not alone in his commitment to giving religious liberty a fighting chance in court. At the signing ceremony for the law, President Bill Clinton concluded his remarks by reminding us all, “We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about.”

Such praise for religious freedom is not uncommon among politicians. But, President Clinton pressed further, pushing the American people toward the national commitment reflected in the law Senator Kennedy pushed through the Senate: “But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another's faiths, fight to the death to preserve the right of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.”

Not every religious claim will prevail, as Senator Kennedy explained. As the Fifth Circuit found, it is impossible to know exactly how any particular case will fit within the standard articulated in H.B. 1523. Yet, tolerance and respect for people on all sides of this debate demand we wait to see how this law weaves it way into lives of everyday Mississippians.

Some people of faith will be disappointed that their actions based on their faith are not protected by H.B. 1523. Others will be disappointed when they are protected.

Nonetheless, as Americans, we have an obligation to carry on the legacy of Senator Kennedy, President Clinton, and others to continue the great American discourse on freedom in a civil society and tolerance for sincerely held beliefs with which we might disagree.

Lathan Watts is a graduate of the University of Mississippi School of Law and director of community relations. Jeremy Dys is deputy general counsel for the First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all.