. . . two of the twenty anti-gay proposals are constitutional amendments that would basically put Texas’s RFRA on steroids. Most RFRAs have the same formula: government may not “substantially burden” religious exercise without a compelling state interest. But Texas SJR 10 and HJR 55 would remove “substantially.”
Unlike a lot of legalese, that word can move mountains. If
any burden on free exercise, no matter how slight, is forbidden, then it’s easy for any litigant to claim a
de minimis burden and prevail in court. As someone who keeps kosher, for example, it definitely burdens my exercise of religion not to have kosher food at the Alamo. Not a substantial burden, but a burden nonetheless. Bring on the Hebrew National!
Or, to take an example from the
RFRA fight in Georgia, suppose my reading of the New Testament tells me I should be able to beat my spouse and child. If all I need to show is any burden, should surely get an accommodation from Texas.
Do I even need to mention Sharia Law here? Another delicious irony: Texas’s conservatives hate gays so much, they’re willing to help Muslim fundamentalists.
--Jay Michaelson
