Don't Let Mississippi Establish Anti-Gay Religion
The first wave of state legislative reactions to the Supreme Court’s 2015 decision legalizing gay marriage typically involved state versions of the federal Religious Freedom Restoration Act. The motive might have been anti-gay, but the form was hard to criticize legally, since other states and federal law already provided the same religious-liberty protection.
Not so for Mississippi’s new law, which gives opponents of gay marriage special protection. Now facing its first challenge in federal court, it should be held unconstitutional because it violates the establishment clause of the First Amendment 1 by singling out one set of religious beliefs for positive treatment.
Signed in April, the Mississippi law calls itself the "Protecting Freedom of Conscience from Government Discrimination Act." It's different from laws in other states modeled on the federal religious-freedom legislation. Those laws seek to restore the status quo as it existed between the Supreme Court’s 1963 Sherbert v. Verner decision and the 1990 case of Employment Division v. Smith.
In that golden age, believers were entitled to an exemption from any law that incidentally imposed a substantial burden on their religious exercise, unless the government had a compelling interest not to exempt them and tailored its law narrowly to achieve it.
The federal law and its many state imitators apply equally to all sincere religious believers and their beliefs. The Mississippi statute doesn't.
It begins by singling out three religious beliefs or moral convictions for protection. They are that “marriage is or should be recognized as the union of one man and one woman”; that “sexual relations are properly reserved to such a marriage”; and that “male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
The law then goes on to insulate believers in those principles from a whole range of anti-discrimination actions by the state. These include housing discrimination, employment discrimination and refusal to offer commercial services like photography and flowers to gay couples who are getting married. It allows any entity to refuse to participate in sex-reassignment therapy or treatment. It also protects entities from having to allow transgender people to use bathrooms corresponding to the sex to which they have transitioned.The law also says that anyone authorized to perform marriages in Mississippi can choose not to perform gay marriages.
What makes the Mississippi law unconstitutional is that it chooses a specific religious beliefs for protection. That violates the establishment clause in at least two ways. It favors particular religious beliefs over others. And it sends a message that the state endorses some religious beliefs more than others.
Consider those religious faiths that think gay marriage is fine. They’re not being given any special exemptions. Now consider a faith that says interracial marriage violates God’s laws. That faith isn’t getting any special protection, either. The protection is going only to the specific faiths that condemn gay marriage.
When he was on the court, Justice John Paul Stevens used to worry about the danger that religious exemptions designed to safeguard the free exercise of religion might run afoul of the establishment clause. In the 1986 case Goldman v. Weinberger, involving an Air Force psychologist who wanted an exemption from military regulations to wear his yarmulke, Stevens wrote a concurrence explaining why the exemptions would be a bad idea.
“The very strength of Captain Goldman's claim,” he wrote, “creates the danger that a similar claim on behalf of a Sikh or a Rastafarian might readily be dismissed.” He concluded that “an exception for yarmulkes” – however reasonable in itself – “would represent a fundamental departure from the true principle of uniformity.”
Stevens’s concern was that exemptions applied on a case-by-case basis would favor some religions over others. That’s exactly what the Mississippi law does.
There’s no case law expressly stating that an exemption targeting one type of religious belief is inherently unconstitutional. But that’s at least partly because such laws are exceedingly rare. The only vaguely analogous law I can think of is an old Connecticut law that allowed non-Sunday Sabbath observers an exemption from Sunday closing laws. The Supreme Court struck down that law in 1985.
The Mississippi law is an outlier, a case of religious liberty gone so far that it turns into a religious establishment. The federal court in Mississippi should strike it down.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
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Noah Feldman at firstname.lastname@example.org
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