To pick up where we left off: “free exercise” of religion applies to beliefs, but not necessarily to religious practices. The government can pass laws that restrict religious practices if there is a “compelling interest” to do so . For example, the government cannot pass a law mandating that citizen stand and salute the flag. However, a religious practice that involves sex with minors could be outlawed.
Now I’m not a lawyer, so I can’t get into the nuances of how the Supreme Court has interpreted the First Amendment in all of its guises. But what I am curious to know is how the new law in Mississippi – the Mississippi Religious Freedom Restoration Act – allowing businesses to discriminate against LGBT people will be interpreted. We seem to have a conflict here between the First Amendment (freedom of religion) and the Fourteenth Amendment (equal protection). Section 1 of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As we know, this clause has been interpreted to outlaw discrimination by public organizations and public individuals based on race/ethnicity, yet this mostly hearkens back to the Civil Rights Act of 1866. It has also been interpreted to prohibit discrimination based on gender (Reed v. Reed, Craig v. Boren) – but again, only in relation to public entities and individuals, not private.
So what happens when a public company – even a mom-and-pop shop – discriminates against an individual based on their sexual orientation? Is the religious freedom of the public entity protected? Or is the equal protection of the LGBT individual?
This is different from the recent rulings on same-sex marriage and the Fourteenth Amendment, because there is not the religious objection component (overtly, anyway). The Supreme Court has never ruled on the issue of classifications based on sexuality (see Loving), and states are traditionally understood to be able to make regulations regarding morality. And yet these new laws hearken back to the Civil Rights issues of African-Americans not being able to eat in certain restaurants. Do we need a new Civil Rights Act, with sexual orientation added? Does religious freedom trump equal protection? Does the government have a “compelling interest” to prohibit the “religious” practice of discrimination against LGBT people in public spaces?