Don't Let Mississippi Establish Anti-Gay Religion
JUNE 16, 2016 12:43 PM EDT
By Noah Feldman
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 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.
http://www.bloomberg.com/view/articles/2016-06-16/don-t-let-mississippi-establish-anti-gay-religion
http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523SG.htm
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