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Legal Roundtable: Is Missouri's 'religious shield' proposal unconstitutional?

Kelly Moffitt | St. Louis Public Radio
William Freivogel, Justin Hansford and Mark Smith discuss the month's most pressing legal matters.

On Monday’s St. Louis on the Air, host Don Marsh led a panel of local legal experts in a conversation about the month’s most pressing news about the law.

Top of mind? Missouri’s ‘religious shield’ proposal, Senate Joint Resolution 39, and whether it violates the first amendment.

SJR39 is designed to allow business owners and clergy to refuse to participate in same-sex weddings.

Joining the discussion:

  • William Freivogel, J.D., professor, School of Journalism, Southern Illinois University - Carbondale
  • Justin Hansford, J.D., assistant professor of law, Saint Louis University
  • Mark Smith, J.D., associate vice chancellor of students, Washington University

“The part of the first amendment they’re concerned about is the establishment clause,” Hansford said. “The establishment clause argues there should be a separation between church and state and the state can’t be in any way involved in helping to establish or promote any sort of religious practices or beliefs. The idea that this ban would be something that takes something from the religious sphere and puts it into the public sphere is a major concern, which I think is justifiable.”
Freivogel said that the resolution is “clearly unconstitutional.”

“The government can’t endorse a particular view of religion,” Freivogel said. “They’re giving favored treatment here to the view that has religious objections to same-sex marriage. It wouldn’t provide the same protection for, say, a gay bakery that wouldn’t provide a cake for a heterosexual wedding. … other parts of it, major parts of it, aren’t even necessary.”

Smith reiterated that a religious officiant would not be compelled to perform a marriage against his or her will.

“What will happen with this law is that if I am a baker or a band that plays wedding receptions and I enter into a contract with the couple and then I find out it is a gay couple, I can breach the contract, and there will be no repercussions, they can’t sue me in civil court,” Smith said.  “That seems ridiculous to me. If I enter into a contract, I’m bound into that contract. That’s a business thing, that’s not an endorsement of anything, that’s just business.”

Among the other issues they discussed:

Listen to the full discussion here:
St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. St. Louis on the Air host Don Marsh and producers Mary Edwards, Alex Heuer and Kelly Moffitt give you the information you need to make informed decisions and stay in touch with our diverse and vibrant St. Louis region. 

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Kelly Moffitt joined St. Louis Public Radio in 2015 as an online producer for St. Louis Public Radio's talk shows St. Louis on the Air.
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