Everything you wanted to know about Georgia's 'religious freedom' bills but were afraid to ask

Posted By Adriane Quinlan on Wed, Feb 10, 2016 at 1:46 PM

In 1983, two Native American men working in Oregon as drug counselors were fired and denied unemployment benefits because they had used peyote, a substance common in the rituals of their religion. Their case made headlines, and in 1993, Congress passed federal legislation intended to keep government meddling out of the rituals of religious minority groups.

That legislation, the federal Religious Freedom Restoration Act, was cited in a 2014 Supreme Court decision in favor of the Christian owners of the Hobby Lobby craft store, who said their beliefs did not correspond with covering contraceptives for female employees, as required by the Affordable Care Act. The court sided with the company and, in a dissent, Justice Ruth Bader Ginsburg warned that the justices may have opened a “minefield.”

Welcome to the Georgia General Assembly, where that “minefield” is now being oh-so-tenderly tiptoed through by legislators who have put forward eight or nine or 10 — depending on how you count them — pieces of legislation that extend or spring off of the federal Religious Freedom Restoration Act.

To navigate the murky waters, we spoke to LGBT activists, pastors, rabbis, lawyers, and professors who are universally concerned about a Georgia where one individual’s “religious freedom” becomes code for making another feel unwelcome, bullied, deprived, disenfranchised, or simply discriminated against. 

Senate Bill 129 – “Religious Freedom Restoration Act”

Sponsor: Sen. Josh McKoon, R-Columbus

Individuals and businesses who broke local laws in the name of a religious conviction could use this law as their defense. Boundaries between a religious interest and a local law, including local non-discrimination laws, would wiggle out in the court system, under a rubric put forward in this bill that would require the state to show its “compelling” interest, which legal scholars say would likely open up religious-based challenges to non-discrimination laws. “That’s the general consensus in the legal community, the academic community,” said University of Georgia legal scholar Anthony Kreis.

The law could not apply to prisoners, whose claims of burden are quite obvious, but makes no other exceptions, despite opponents’ worries over how claims of religious conviction could give firefighters, police officers, and other public safety employees an excuse to not save lives and protect citizens.

A report “Striking a Balance: Advancing Civil and Human Rights While Preserving Religious Liberty” by the Leadership Conference Education Fund found that, in other states that had passed or mulled over similar legislation, the “extremely broad language of some RFRA proposals” had raised “concern among child welfare advocates and law enforcement officials that religious beliefs about disciplining children or the submission of women could be invoked in child abuse or domestic violence cases.” The study also noted that defense along religious grounds could go much further, as some believe that “the Bible opposes minimum wage laws, collective bargaining…and progressive taxation."

Georgia Unites Against Discrimination, a project of Georgia Equality and the Human Rights Campaign, interpreted the law as opening up an “excuse to discriminate…especially as it relates to the LGBT community,” according to its breakdown of legislation that it is actively watching.

“All of this legislation has been motivated by animus toward the LGBT community,” said Sarah Warbelow, legal director for the Human Rights Campaign. Warbelow said that though the Federal RFRA was in place since 1993, it has become much more popular in the wake of the Supreme Court same-sex marriage decision.

While the bill’s sponsor, McKoon, has said the bill is not motivated to counter LGBT rights efforts, its backers have consistently connected it to same-sex marriage. 

“Sen. McKoon has some strange bedfellows there if he thinks these people are not anti-LGBT,” said Allen Fox, spokesperson for Georgia Republicans for the Future, a group of conservatives who oppose the legislation and see it as a poor reflection of Republican voters’ real concerns. “My group is more concerned about this agenda hijacking, I think, the good will of what the Republican Party stands for – which is free markets, expanding economic opportunity, and smaller government. And all these bills essentially do is create this space to discriminate.”

To answer the financial question: a study financed by the Metro Atlanta Chamber found that adoption of RFRA could result, as it did when passed in Indiana, in boycotts of Georgia companies; relocation of conventions and sporting events away from Georgia; and more difficulty for companies that seek to recruit snake person workers. McKoon, a tireless defender of the bill on Twitter and panel discussions, has pointed to other cities hosting large sporting events that already have RFRA legislation on the books. 

Josh Noblitt, a gay pastor of St. Mark United Methodist Church who is running for a seat in the state House of Representatives, said the bill simply doesn’t reflect the Southern hospitality at the core of Georgia, and at the core of American values. 

“We live in a diverse pluralistic society,” Noblitt said. “All this legislation we are seeing coming before the Georgia legislature seems to miss the point of all of that. It singles out people of faith to get an exemption that other people, for whatever reason, don’t get.”

And that worried rabbi Joshua Lesser, who leads Congregation Bet Haverim: “There’s a long-standing xenophobia in lots of different parts of this country, a cultural sense of defending the mainstream. But when we look at the scariest moments of history it’s bills like this that begin paving the way… We see this issue as much larger than just an LGBT civil rights issue.”

House Bill 837 – “Religious Freedom Restoration Act”

Sponsor: Rep. Ed Setzler, R-Acworth

The language of this bill would seem to be non-threatening; it is less specific than its Senate counterpart, as it simply extends the 1993 federal law, the Religious Freedom Restoration Act, to apply to the state of Georgia.

But “even if you’re just applying the exact same language you’re applying something that is no longer working,” said Warbelow, of the Human Rights Campaign, noting the problematic Hobby Lobby decision, and a 2008 Supreme Court decision that specifically limited the federal law’s scope.

And if you thought it seemed harmless to “extend” the provisions of a federal law to the state level, think again. As a federal law, RFRA only applies to situations where the government reaches into religious life. As a state law, RFRA would apply to situations between individuals.

Here’s how: Georgia has no civil rights public accommodation protections, which means that if John Doe claims that he was discriminated against by his employer, Acme Inc., Doe cannot sue Acme. Rather, a local government with a local anti-discrimination statute must enforce Doe’s claim against Acme. Therefore, even in seemingly private situations between an employee and an employer, the local government is an actor — meaning that RFRA would apply to more diverse, varied, and personal situations on the state-level in Georgia. 

“The language might be the same, but the enforcement mechanisms will be different,” said Kreis.

And on top of these concerns, Georgia Unites Against Discrimination and other watchdogs are concerned that this bill could be a Trojan Horse, which could come up for a friendly floor vote and be modified and amended quickly to include troubling provisions. 

House Bill 218 – “Preventing Government Overreach on Religious Expression Act”

Sponsor: Rep. Sam Teasley, R-Marietta

Last year’s version of the Religious Freedom Restoration Act is still preserved in the cryogenic chamber of this lingering house bill, whose sponsor says it will not come up for a vote. But the legislation is still being monitored by Georgia Unites Against Discrimination.

Senate Bill 284 – “First Amendment Defense Act of Georgia”

Sponsor: Sen. Greg Kirk, R-Americus

This is the bill for LGBT rights activists to be afraid of, a version of the Religious Freedom Restoration Act that has broader protections for those who claim religious exemptions — including court damages with lottery-winning-level payouts — and specifically targets issues of sexual orientation, gender, and marriage. Opponents have called it “RFRA on steroids.” And Democratic Party of Georgia spokesman Michael Smith said that it highlighted an “anti-LGBTQ agenda…so transparent” it could have been written “on cellophane.”

The bill would allow people or businesses who believe “marriage is or should be recognized as the union of one man and one woman or that sexual relations are properly reserved for marriage” to not provide a service to anyone who does not align with their beliefs. The bill doesn’t require government involvement or religious protections, is not grounded in religious protections, but rather would protect an individual who discriminated against another individual, even if their beliefs are not religious but simply in “accordance with a…moral conviction.”

The law appears to “almost be creating a protected class of people who disagree with the marriage decision,” said Allen Fox, of Georgia Republicans for the Future.

The ramifications of protecting that class are frightening. The law could potentially be cited by a landlord who refused to rent to an unmarried couple; a clerk who refused to help a single, pregnant woman; or a hospice nurse who refused to tend to a gay man. A construction contractor who refuses to build a road named for an unmarried woman could, under this law, not only be allowed to not build the road, but could not be punished for not fulfilling its duties if the firm bids on another project. Think that’s a crazy idea? What about if it becomes legally easier to fire employees who fulfill their duty without objection, than to fire employees who protest, and the state heads into a drastic staff cut? Would anyone be left to carry out government work?

The Human Rights Campaign envisioned this law as a form of “taxpayer-funded discrimination” that threatened to “create a breakdown of state government services,” according to a statement.

“Georgians could legally face discrimination from organizations that their own tax dollars fund,” said Jeff Graham, director of Georgia Equality, in a statement.

The law could also be unconstitutional, as it protects only one viewpoint: people who believe that marriage is the union of one man and one woman, as Cathy Woolard, a lobbyist for Georgia Equality and Atlanta mayoral candidate, told the Senate Rules Committee. That means that at least one result of the legislation could be expensive, drawn-out legal challenges that reach the highest court levels.

House Bill 756 – the “Discrimination Protection Act”

Sponsor: Rep. Kevin Tanner, R-Dawsonville

Like the First Amendment Defense Act of Georgia, above, the Discrimination Protection Act would give people and businesses the right to deny services. But this bill would expand those denials past issues over sexual relations, to issues related more broadly to “a religious organization or for a religious or matrimonial ceremony, in violation of such a seller’s right to free exercise of religion.”

The legislation would appear to reverse the 1964 Civil Rights Act, which required for-profit businesses engaged in commercial transactions to not discriminate against protected classes, said Kreis, the legal scholar. “I’m terribly unpersuaded that this legislation is about anti-discrimination principles,” Kreis said. “Because I certainly believe it would enshrine discrimination and not deter it.”

“If you had a shop owner that didn’t want to serve people who were Jewish or Muslim they could make a claim,” said Sarah Warbelow, of Human Rights Campaign.

So, on a hot day, when the air-conditioning snapped at the synagogue led by Rabbi Joshua Lesser, would HVAC contractors refuse to serve him? 

“I don’t want them to refuse services if our air conditioning, if our water goes out,” said Lesser. “There is such a narrow understanding expressed by a more conservative Christian perspective about how they are affected that completely eclipses an understanding of the common good and the understanding we have to each other as citizens.”

“The problem is these bills are so vague and so wide open that you may end up with collateral damage to minorities and others far beyond any benefit,” said Heller. “They might cause much more harm than they might possibly heal.”

House Bill 816 – “Student Religious Freedom Act”

Rep. Billy Mitchell, D-Stone Mountain

Voluntary prayer could be allowed in Georgia public schools under this law, which opponents worry could lead students who practice minority faiths to feel singled out or worse — to be actively bullied for their different convictions.

In schools, a student is already allowed to pray on his or her own. And the Supreme

Court has been clear that prayer cannot be performed in schools “when you have a captive audience,” said Kreis. So the law walks a line that in many ways, has already been defined by the courts.

Noblitt worried that the law could be loosely interpreted by those who misunderstand it to allow for evangelizing in school, if a student argued that the ability to evangelize was a tenet of the prayer of his or her religion.

Sarah Warbelow worried that the law would open up prayer groups in schools that don’t provide the opportunity for non-religious groups, such as a LGBT rights group, as many schools have restricted clubs to those related to school curriculums, Warbelow said. “It’s not about opposing student prayer groups from meting at all, providing that it’s optional. The concern is that it’s not treating all groups equivalently.”

House Bill 870 and Senate Bill 309 – Student Athletic Uniforms and Play

Sponsor: Rep. Brian Strickland, R-McDonough; Sen. Burt Jones R- Jackson

Can a student athlete wear religious statements on his or her uniform, and can a public school team play against a private school team that may or may not be a religious school? These pieces of linked legislation would like to open the floor to those possibilities.

But there’s a big problem: student athletes can’t modify their uniforms under national guidelines that have nothing to do with religious expression, said Gary Phillips, the executive director of the Georgia High School Association, who spoke at a hearing on the legislation. “Adornments” on uniforms run against a national policy designed to keep order on the fields. And the idea that public schools can play private, religious schools? That will change only when the national association allows it. 

In either case, the Human Rights Campaign raised a concern that the legislation could at some point allow an athlete to wear something that said something that offended other students. “Those statements could, in that context, end up feeling like bullying to other students,” Warbelow of the HRC said. 

House Bill 757 - the “Pastor Protection Act”

Sponsor: Rep. Kevin Tanner, R-Dawsonville

Finally, a religious freedom bill with broad bipartisan support. And here’s why: it’s a redundant and completely unnecessary legal instrument, whose sole utility appears to be in public relations. This is a calming, happy bill for any politician to bring to a flock worried over the impact of same-sex marriage: it would simply put into writing that a religious leader cannot be forced to preside over a marriage ceremony that doesn’t accord with his or her beliefs.

That’s a right that is already protected by the First Amendment. Think of rabbis who refuse to preside over inter-faith marriages, of pastors who require couples to participate in faith counseling before a ceremony. Noblitt, who already has refused to marry couples simply on his own judgment call that they are not ready to go through with the rite, called it “redundant.” Lesser called it “gratuitous.”

“This is just a law to appease their fears,” he said.

The bill, which enjoys the support of House Speaker David Ralston, R-Blue Ridge, also includes one troubling provision, though it could be amended in the coming weeks. It would allow religious organizations to refuse to “rent, lease or otherwise grant permission for property to be used by another person for purposes which are objectionable to such religious organization.” Most states already would not require a religious institution to rent out its main facility against its will, Kreis said. But if a religious institution owned property, such as homes on church grounds that it was renting out, such a law could allow an institution to “engage in housing discrimination,” Kreis said. “This would open the door to that.”

Senate Resolution 388 – Georgia State Constitutional Amendment to Fund Religious Organizations 

Sen Bill Heath, R-Bremen

Under the Georgia Constitution, “No money shall ever be taken fro the public treasury… in aid of any church, sect, cult or religious denomination, or any sectarian institution.” A constitutional amendment currently being discussed in the Senate would reverse that, allowing “religious or faith based organizations to receive public aid.” But first, the idea would have to be put to Georgia voters. And it’s not even coming to the Senate for a floor vote — yet.

The idea stalled after the Georgia Anti-Defamation league and state Sen. Elena Parent, D-Atlanta, put forward the idea of adding an amendment to the resolution, which would require religious organizations that want to receive such aid to open their financial books, filing the same paperwork for 501(c)(3) tax status that nonprofits that do receive such aid.

Noblitt said the idea seemed, like other “religious freedom” legislation to counter a long-held belief in this country. “We need to keep state and church separate; state and religions separate. That’s just established precedent in our country.” 

Note: An earlier version of this story said that Kreis believed that courts would likely favor SB 129 over non-discrimination laws. Kreis says the legal and academic communities believe that the opposite is true: that courts would likely favor non-discrimination laws. In addition, the campaign started by Georgia Equality is Georgia Unites Against Discrimination.