Law professors question religious liberty proposal

A group of Missouri law professors has questioned the impact of the proposed religious liberty amendment to the Missouri Constitution, generally known as Senate Joint Resolution 39 or SJR 39.

The 14 professors suggest, in two different memos totaling 18 pages, language in the proposed amendment could be used to prohibit prosecutions for criminal acts, including murder, if the acts occurred because of a person’s sincere religious beliefs.

The professors are from the Washington University, St. Louis University and University of Missouri-Kansas City law schools.

They warned the way the amendment is drafted could lead to other unintended consequences, as well — including violations of the U.S. Constitution’s Establishment Clause, which prohibits the government from favoring one religion over another.

However, the proposal’s sponsor, state Sen. Bob Onder, R-Lake St. Louis, said Saturday the law professors are reading too much into the proposal.

“To take the idea of SJR 39 immunizing from criminal prosecution — I think that’s particularly silly,” Onder said in a telephone interview.

“I think, sometimes when people are reading bills, they tend to jump into the minutiae of the bill, without reading the core of the bill.”

If voters approve, the proposal would add a new section to the Constitution’s Bill of Rights: “That the state shall not impose a penalty on a religious organization on the basis that the organization believes or acts in accordance with a sincere religious belief concerning marriage between two persons of the same sex.”

In their second memo, issued last Monday, the law professors noted, “The term ‘penalty’ under the amendment ‘means, but is not limited to, any adverse action taken by the state’ to alter the tax treatment of, deny grants, contracts, or benefits to, or to recognize a civil claim against, a religious organization or individual.

“The amendment would, therefore, prevent the state from bringing both criminal prosecutions and adjudicating civil claims where a religious organization acts in accordance with a sincere religious belief concerning marriage between two persons of the same sex.”

The law professors wrote, “SJR 39’s broad language, therefore, risks preventing the state from enforcing criminal laws against ‘religious organizations’” and points to the Westboro Baptist Church of Topeka, Kansas, as an example.

The church — an independent congregation not affiliated with other Baptist churches — is known for its protests at churches and military funerals, arguing it has an obligation to warn the American people soldiers have been killed in battle as a punishment for society’s acceptance of homosexuality.

The law professors wrote the proposed Missouri amendment “would prevent prosecution of a member of the Westboro Baptist Church for violations of state or local criminal trespass, property damage, harassment and assault laws, if committed because of a sincere religious opposition to marriage equality for same-sex couples.”

Similarly, the professors said, adding the proposal to Missouri’s Constitution would “severely limit enforcement of state and local hate crime statutes.”

Also, they wrote, “Even the murder of a same-sex couple could be shielded from municipal and state prosecution if committed by a member of a ‘religious organization’ and motivated by a religious belief about marriage.”

Onder — who is a practicing medical doctor and an attorney — said the penalty section of the proposed amendment lists the kinds of penalties the amendment restricts.

“There’s nothing about immunizing criminal penalties,” Onder said.

“Even if you said the penalty section was written broad enough to encompass criminal penalties — if the Westboro Baptist Church went in and broke up a wedding an committed property damage or assault and battery, they would be prosecuted by the local prosecutor” based on the action, not because of their religious beliefs.

“Why they did it would be completely irrelevant,” Onder said.

The professors wrote, “While not expressly included in SJR 39’s definition of penalty, criminal prosecution by the state clearly is a penalty.

“Missouri law routinely employs the term penalty to mean both criminal punishments and civil fines or actions.”

State Rep. Jay Barnes, R-Jefferson City, who is an attorney, wasn’t available to comment for this story, but he said during a KWOS Radio interview April 8: “There are things in this (resolution) that are too broad. …

“The way this is drafted, a criminal prosecution is an adverse action taken by the state — and that concerns me. There’s no case (law) on this — we haven’t been down this road before.”

The law professors’ memo cites a number of U.S. Supreme Court cases supporting their contention the proposed Missouri amendment targets religious practices in ways that violate the U.S. Constitution’s First Amendment.

The Establishment Clause says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

Among other things, they said, the proposed amendment appears to be “improperly endorsing, or seeming to endorse, certain religious beliefs.

“The amendment lends the color of law to religiously-motivated discrimination by state workers performing state functions.”

Onder said Saturday, “There’s a long line of cases addressing this issue of religious exemptions.

“And I think, if you look at that whole line of cases, SJR 39 would clearly fall into what the Supreme Court has upheld in the past.”

Onder has said numerous times — in committee hearings, news conferences and Senate debate — the proposal is a “shield, not a sword” and is intended to protect people from being forced to participate in same-sex marriages or receptions, not a way to discriminate against people.

The Senate passed the bill in March, after supporters ended a nearly 39-hour filibuster against it by forcing a vote.

The House Emerging Issues Committee took testimony on the measure almost two weeks ago but last week delayed until this week a vote to send the proposal to the full House for debate.

Onder said he’s confident the House ultimately will pass the resolution as it is and send the measure to the people for a statewide vote this fall.

The law professors’ two memos were released through the Columbia University (New York City) Law School’s Public Rights/Private Conscience Project and can be found online at web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project/policy.