The Pros and Cons of the Preservation of Religious Freedom Act

February 26, 2014 11:03 am

by Jon Richards · 108 comments

Two similar bills under consideration in the Georgia House and the Senate attempt to define the limits of the state in regulating religious activity. Senate Bill 377, sponsored by Josh McKoon, and House Bill 1023, sponsored by Sam Teasley, are both titled the Preservation of Religious Freedom Act, and both are causing controversy.

The House version of the bill came under fire during a Judiciary subcommittee hearing on Monday. A substitute bill to address some of the concerns raised during the hearing was supposed to be presented to the subcommittee today, but for whatever reason, the committee meeting was cancelled. As a result, the House version is dead for this session. However, the Senate version was favorably reported out by the Judiciary Committee and received a second reading in the Senate on Monday. It could come up for a vote by the full Senate next Monday, which is Crossover Day. The legislature will not be in session Thursday or Friday.

So, what’s going on here?

According to Senator McKoon, his bill is modeled after the Religious Freedom Restoration Act, passed by the U.S. Congress in 1993. The RFRA was introduced and passed after a Supreme Court decision that effectively took away the right of Native American Indians to use peyote in their religious ceremonies. The RFRA was the law of the land until 1997, when the Supreme Court decided it did not apply to the states. Since that time, eighteen states have adopted laws mirroring the RFRA. An additional eleven State Supreme Courts have ruled the federal law should applied in their states. McKoon’s bill would add those same protections here in Georgia.

The wording of the federal law and SB 377 are similar. Section 3 of the RFRA states,

(a) IN GENERAL. — Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) EXCEPTION. — Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Section 2 of SB 377:

(a) A state entity shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability unless such state entity demonstrates, by clear and convincing evidence, that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

Given that the bill mirrors current federal law, what’s not to like? Apparently, plenty.

To understand why there are concerns about Georgia’s proposed religious protection law, you need only look at the first item in today’s Morning Reads. Arizona Governor Jan Brewer has to decide soon whether to sign Senate Bill 1062, which broadens that state’s Religious Freedom Restoration Act to protect religious freedom not only from acts by the state, but those by businesses and individuals.

That bill appears to be a reaction to reports of retail businesses, including bakeries and florists, refusing service to gay couples planning their weddings because of their owners’ religious faith. The bill would allow these businesses to refuse to serve someone because of a valid religious concern. And some are wondering whether HB 1022 and SB 377 aren’t veiled attempts here in Georgia to achieve the same end.

But, concerns about the bill are broader than that. I spoke to a high-ranking official with the Atlanta Chamber of Commerce yesterday who was worried that passing the Religious Freedom Act might drive businesses away from Georgia, especially those who cater to a diverse clientele. For example, Delta Airlines, which yesterday released this statement:

As a global values-based company, Delta Air Lines is proud of the diversity of its customers and employees, and is deeply concerned about proposed measures in several states, including Georgia and Arizona, that would allow businesses to refuse service to lesbian, gay, bisexual and transgender individuals. If passed into law, these proposals would cause significant harm to many people and will result in job losses. They would also violate Delta’s core values of mutual respect and dignity shared by our 80,000 employees worldwide and the 165 million customers we serve every year. Delta strongly opposes these measures and we join the business community in urging state officials to reject these proposals.

I also had the opportunity to talk with some legislators, who were concerned about passing a controversial bill, especially after what happened last week.

I spoke to a young Republican activist about the bills. You may have seen him out campaigning for his preferred candidates over the last year. He’s a strong Christian. He’s very much against discrimination, but allows there should be certain religious exemptions for churches, for example in hiring. But he is also strongly for marriage equality, and he is concerned that the Religious Freedom Act will set that back. He supports the GOP, but he feels that by advocating bills like this, his party is pushing him away. You see, in addition to being a Christian Republican, he is also gay.

Senator McKoon plans to address the Senate today from the Well. In his remarks, he cites several examples from other states where their religious freedom laws protected individuals. In his remarks, he states,

From Obamacare’s mandate to require religious institutions to provide abortion services to the fact we had to bring forward legislation so school children and those employed in our public schools to be allowed to say “Merry Christmas” or “Happy Hanukkah” evidence abounds that the last group of people in America it is ok to pick on are people of faith. I felt that instead of continuing to deal with these issues in piecemeal, how about providing a defense to people of every faith who face a government that routinely is hostile toward fundamental religious liberty interests.

You can read the full text of his prepared remarks here. The letter he received from legal scholars is here. In addition, religious leaders have communicated support in a letter to House Speaker David Ralston.

A spokesman for the Faith and Freedom Coalition told me they support the bill, and would like to see it come to a vote.

The Senate version of the Preservation of Religious Freedom Act is much closer to the Federal RFRA than it is to Arizona’s bill, especially when compared to House Bill 1023. As I read it, it applies only to governmental entities, not private businesses and individuals. If that’s the case, some of the concerns about the bill may not be warranted.

It’s a challenge to balance one individual’s right to freedom of association with another individual’s desire to be free from unwarranted discrimination. In this case, it’s made more difficult because individuals and states are still changing their opinions and laws on gay marriage.

I believe Senator McKoon and the rest of the bill’s sponsors when they say they have no intention of fostering discrimination against the gay community, or any other group, for that matter. Given Speaker Pro-Tem David Shafer’s co-sponsorship of SB 377, it is likely there will be a floor vote on Monday. Georgia’s motto is “Wisdom, Justice and Moderation.” I hope our Senators will keep it in mind as they prepare to vote.

xdog February 26, 2014 at 12:22 pm

Thanks for the rundown, Jon.

I wish McKoon would stick to ethics and leave it to others to make everything pickrick in the state.

CJBear71 February 26, 2014 at 12:36 pm

I’ve read both bills, and I think they are substantially the same. There is some “lighter” language in the definition of burden in SB 377, and removes references to “state and local laws, ordinances, rules, regulations and policies”… that “directly or indirectly constrains, inhibits, curtail, or denies the exercise of religion by any person…” While that seems to imply more direct burden by the state (or cities or counties), lines 66-68 says that no encroachment shall be permitted whether direct or indirect. So these bills are largely the same.

There are several problems with this bill. This bill codifies the strict scrutiny test, which first arose in a famous case regarding the incarceration of Japanese Americans by the United States in World War II. When it reached the Supreme Court, the Court stated that whenever the government acts on the basis of race, it must do so based on a compelling government interest. This set up the next several decades of jurisprudence on race, from desegreation cases to employment nondiscrimination cases. So nondiscrimination statutes on race, sex, and the several other factors in the law would likely survive the compelling interest test.

But there is no protection in the law for LGBT Americans (like me), not federaly nor in Georgia. There is only local ordinances in Atlanta and a few other cities. Some additional governments have local employment policies also protecting their own employees, but do not extend to private business. So there is only a patchwork of protections in Georgia. To my knowledge, only one federal court for the first time last year stated that an anti-marriage law failed the compelling interest test. (Other courts have used a rational basis test – a lower standard) But in the past, federal courts have turned away LGBT discrimination claims, precisely because we aren’t included in the federal nondiscrimination statutes. There is real concern as to whether a court here in Georgia would recognize a local ordinance as a compelling interest when there is no state law. Adding a religious protection clause would further confuse the issue of what compelling interest the court should consider.

Second, the federal law only protects a person – an individual. This law defines a person to include business, partnerships, and other corporate definitions. This allows business interests who have come together as for-profit institutions to claim a religious exemption to laws that should apply to the entire marketplace. Separating whether they want to discriminate, there are several ways this law could be used to claim exemptions to various laws – food safety laws, zoning restrictions, etc. – the claims could be limitless.

Third, this law provides specifically for sanctions for fraudulent claims. Courts have largely stayed out of whether a person’s religous beliefs are sincere. By providing for fraudulent claims, this legislation appears to give litigants the right to inquire on the basis of the religious belief being burdened, the applicability and the validity. That’s a nightmare.

Other states may have already enacted this law, and maybe there haven’t been a lot of lawsuits over it. But the motivations behind it springing up now specifically because states that do protect LGBT Americans from discrimination in the public marketplace are enforcing those laws. Most people who open their own small business do so by incorporating in some manner. It provides protection under State laws, separating your private assets (home, bank accounts, etc.) from your business assets. And therefore the business can and should be subject to the laws of the state equally. While I would have preferred that people just move on to another baker or another florist, when you open a for-profit business to serve the public, then you should serve the public. All of us.

Chris Huttman February 26, 2014 at 12:37 pm

Here’s what I don’t understand.

Let’s say a non-religious person owns bakery #1. And a Christian owns bakery #2. #1′s owner was screwed out of some money in the past by a gay person, so he hates all gay people now. #2 hates gay people because the Bible says so.

Why is it ok to tell #2 he doesn’t have to serve gay people, but not #1? Would we extend the same rights to someone who got their information from the Sorcerers Handbook instead of the Bible? What if guy #1 decides he’s the next coming of Joseph Smith or Jesus Christ and writes his own religious text?

seenbetrdayz February 26, 2014 at 3:42 pm

Why can’t we all just shop at bakery #3, whose owner doesn’t give a crap who believes what, and just wants to make money?

Chris Huttman February 26, 2014 at 5:20 pm

Ideally but like two use cases for why that may be a problem:
1 – what if you’re a gay guy or a black person who lives in a small town where there is only one of something like this
2 – same setup but you went to a publix because you thought publix as a giant corporation doesn’t give a crap about whether i’m gay or white or black and then you (and publix) find out that actually the guy making cakes that day does – publix probably can’t ask him this in advance or fire him after they find this out if this type of legislation passes.

seenbetrdayz February 27, 2014 at 9:03 am

What if the only baker in town says that rather than serve gays he’ll just shut down his whole business, no cake for anybody? Or does he get forced to reopen his doors by the govt’? If gays have a right to be served, does it compel the business owner to meet their orders?

And I’d have to review the publix baker’s ‘terms of employment’ contract before answering case number 2. If he agreed that publix can terminate his employment at any time (as most employment agreements do), then I don’t think he’d be baking cakes in their stores for much longer, especially considering how most large corporations tend to freak out at the slightest hint of bad publicity. (think how A&E flipped out due to a few hundred calls from gay organizations, compared to the millions of people who would keep watching the show even if the old man started carving pentagrams in his chest and spouted off demonic chants, which might actually increase viewership even more, come to think of it).

If the baker wants to be a **** and discriminate, then he should probably consider opening his own bakery, where he is the business owner and gets to make the rules, just as the owners of publix do.

maddik February 26, 2014 at 12:57 pm

Please take this survey I’ve created in preparation for a blog post pertaining to these pieces of legislation https://www.surveymonkey.com/s/YKPVWWD

GAcitizen1 February 26, 2014 at 12:59 pm

Being a young, republican activist and gay myself, bills like this remind me why I am still in the closet to most people. In addition, “legislation” like this makes me question why I even try sometimes.

Lea Thrace February 26, 2014 at 2:07 pm

Honest question here. Why remain an announced republican considering the track record with the rights of people in your class? What makes you stay?

GAcitizen1 February 26, 2014 at 2:39 pm

Because I believe in limited government ,a strong national defense, free markets, low taxes.

pettifogger February 26, 2014 at 3:44 pm

I can understand why you question the motivations of this legislation. But as someone who favors “limited government,” you don’t see any value in allowing merchants to make decisions for themselves, and society to respond accordingly?

Lea Thrace February 26, 2014 at 4:51 pm

Is it still limited government when one legislates what you can and cannot do in the privacy of your home?

V Chip February 27, 2014 at 8:58 pm

Why be a Republican then? They’re not in support of most of those things. Better to declare as Independent and vote the stances instead of the party.

Rick Day February 28, 2014 at 1:05 am

because they would have to acknowledge firebrands like Moore and Gregory are more ‘right’ than their precious status quo.

Robin Wheeler February 26, 2014 at 1:00 pm

Excellent reporting Jon!

rwlee2 February 26, 2014 at 1:35 pm

I think this is a fair, fair representation of the difficulty conservatives reasonably have right now, both in terms of this specific issue and the generational issues that are arising in general.

I’m right there with you, too. I, quite personally, don’t know how to think on this. I firmly, firmly believe people have the right to do business with whom they choose for whatever reason they choose. It’s hard to convince me the Constitution values much above that considering the Contract Clause was one of the key features that separated it from the Articles of Confederation. Considering contracts are mutually agreed business relationships, it’s hard to say business relationships are not fundamentally protected, including our right to NOT enter into any such contract.

That said, I also hate the idea of people refusing to do business with people because of their particular type of “sin” they commit. I’m not religious, so I view “sin” differently on a very fundamental level, but I just cannot imagine at all that people who profess to love the sinner, but hate the sin, would pass up the opportunity to engage someone on a very personal level about their beliefs and try to bridge a gap.

Where someone chooses to use a business opportunity to prove a point is guilty of douchebaggery; supplier and client alike are missing the point of a business relationship at that point and merely look to enforce their dogmatic views. That goes for customers who want to force businesses to act against their beliefs, but I equally think that businesses that try to make a point to refuse service to “sinners” are just as guilty.

The point of all that being, Republicans have a great, great opportunity to engage people on a very personal level and I think are missing the boat with legislation like this. We’re seeking to protect ourselves from the “icky” people and I don’t think we need any protection at all. I do believe in our right to refuse service, and that right should be protected at some level, but I also believe in the right to ignore businesses that do that in favor of other businesses, religious or not, that are more friendly to who we are as individuals.

This is a great chance we’re missing to rise above and connect with folks.

John Konop February 26, 2014 at 1:57 pm

In all due respect, the real question is how do you draw the line? Bob Jones U banned interracial couples. BTW what is next divorce, affairs……? This is not about religious freedom, it is about supporting religious intolerance.

I support the right to believe what you want as long as it does not infringe on the freedom of other people. I am against affirmative action, but bills like this hurt the concept of all people being giving fair shake. And to do this bill in the name of GOD is really scary……This is the type of extreme casting of stones that hurts the middle east in the name of religion….

rwlee2 February 26, 2014 at 2:09 pm

Well, that’s what I mean – it’s a tough, tough line to draw on something like this.

It does bother me that someone can force a service or good to be sold to them simply because they want it, regardless of what the seller wants to do. That’s not a good thing. Discrimination happens at many levels, and who’s to say what’s worse than the next? There is so much subjectivity here that it’s problematic on both ends.

John Konop February 26, 2014 at 2:28 pm

Honestly, this is what Barry Goldwater the father of the conservative movement talk about the GOP losing the battle…..this is a no brainer….

Barry Goldwater:

…..”I am a conservative Republican, but I believe in democracy and the separation of church and state. The conservative movement is founded on the simple tenet that people have the right to live life as they please as long as they don’t hurt anyone else in the process.”
(in a 1994 Washington Post essay)

“The religious factions will go on imposing their will on others,”……..

pettifogger February 26, 2014 at 3:34 pm

So separation of church and state is good, until we want the state to force the church to do something.

pettifogger February 26, 2014 at 2:10 pm

How does it support religious intolerance? It doesn’t incentivize intolerance, it merely restores us to the status quo of allowing the public to reward and punish businesses for their selectivity.

John Konop February 26, 2014 at 2:29 pm

Hate is hate…..people like you are the reason why people like me have a hard time fighting affirmative action….

pettifogger February 26, 2014 at 3:22 pm

This is an idiotic reply. How is not wanting to have your products featured in something you find religiously objectionable considered “hatred.” By all means, point out the hate in my comment (you won’t, for the same reason you exhibited such intellectual cowardice in your first response).

People like you are the reason why people like me have trouble maintaining any sort of ideological consistency on the right.

Chris Huttman February 26, 2014 at 5:24 pm

So let me get this straight – the religious baker is going to go home and cry or punch a hole in the wall if one of their delicious cakes is eaten at a gay wedding?

But – what if a straight guy wants to buy that same cake and smear it over a stripper and eat it off of her at a bachelor party? They’d be fine with that?

Maybe the cake baker, once their cake is baked, just shouldn’t ask questions about what’s going to be done with it – or just grow up and not give a crap who eats it and how.

Salmo February 26, 2014 at 5:42 pm

Is anyone arguing that the baker should be prohibited from refusing to bake stripper cake for a bachelor party? Currently, that’s completely legal in every state as far as I know and I wasn’t aware anyone was attempting to change that. I’m perfectly fine with the baker refusing to sell the cake to the straight guy in this case. Are you?

John Konop February 26, 2014 at 7:47 pm

Is that a serious question? HUH? You equate a black, jewish, gay……person denied service to eat at a restaurant, stay at a hotel, use a restroom, order a cake….to person asking for pornographic object? Do you have any idea how many people you have insulted?

Salmo February 26, 2014 at 10:29 pm

I didn’t equate anything. Chris did. I simply pointed out that his scenario was completely legal and that I’m unaware of any effort to change that.

You aren’t a very strong reader, are you?

John Konop February 26, 2014 at 11:14 pm

I respect Harry, because even though we disagree with the issue , he is man enough to not play games about his views….You on the other hand…..

seenbetrdayz February 27, 2014 at 8:46 am

Actually I was keeping track, and Chris did come up with the outlandish scenario first, Salmo just went with it.

Blake March 4, 2014 at 5:48 pm

It’s really not such an outlandish scenario, nor playing games. A group in Washington state (I believe) ordered cakes from the same cakemaker for an unwed mother shower, a divorce, etc.–the cake company accepted all of them.

In other words, the only scenario that conflicted with their religious beliefs that they had a problem with involved gay marriage.

Salmo February 26, 2014 at 3:39 pm

This is a bit different, though. Let’s go with the situations that caused these types of legislation: marriage ceremonies. One could make the argument that these people were not discriminated against because of their sexuality, rather they were discriminated against because of what they planned to use the businesses’ products for. A baker may feel that specifically baking a cake for a gay marriage ceremony implies participation and endorsement of said ceremony, and I can see how someone would object to participation. Would we apply the same provision to a Baptist minister who was asked to perform a gay marriage ceremony? After all, he’s ultimately selling a service if he charges other couples to perform marriage ceremonies. Do business owners have any legal say in how their products are to be used at the point of sale? Would we argue that a gun store owner has no right to use discretion in who he sells a gun to provided all legal requirements for the customer were met?

If someone walks in a store and says “I’m gay and I’d like to buy a cake” and the baker says “I’m not selling you one because you’re gay”, I consider that a problem and don’t think there’s any need for legal protection for the baker in this case.

However, when someone walks in a store and says “bake me a cake for my homosexual wedding”, I can see a heck of a lot more gray area if we want to start thinking about legal implications. Ultimately, somebody is going to be forced to have their beliefs disrespected in the exchange, whichever side you take.

John Konop February 26, 2014 at 3:44 pm

Salmo,

What if someone walks in and wants a cake for their interracial marriage, two different religions…? As I said hate is hate….

Salmo February 26, 2014 at 4:27 pm

If someone honestly believes that there’s something wrong with interracial marriage or interfaith marriage, then they at least have an argument that they shouldn’t be required by law to participate in celebrating those marriages. Hate doesn’t even have to be a part of the discussion, though I readily admit that it could certainly be a motivating factor for many of the people who would object to such marriages.

John Konop February 26, 2014 at 4:39 pm

Salmo,

In all due respect you want to open up Jim Crow laws again….ie back of the bus, banning kids from schools, dances……?

Salmo February 26, 2014 at 4:43 pm

No. I do not want to open up Jim Crow laws again. You’re making a huge jump here. Generally speaking, those things are public resources and in no way would be relevant to this discussion.

And lest you accuse me of being in favor of allowing private businesses to discriminate against minorities, I’ve already said that I do not support allowing businesses to refuse service to a customer simply based on that customer’s sexual orientation.

John Konop February 26, 2014 at 4:52 pm

…………If someone honestly believes that there’s something wrong with interracial marriage or interfaith marriage, then they at least have an argument that they shouldn’t be required by law to participate in celebrating those marriages. …

Seems real clear you are supporting Jim Crow laws. You do remember the days of denying people like the above use of restaurants, hotels…..? They used your argument.

Salmo February 26, 2014 at 4:58 pm

I see you’re not interested in actually participating in a nuanced, detailed discussion of the issue and are instead just looking for ways to call people names and accuse them of things that are untrue. If you’ll look back and re-read, you’ll realize that I never once took a position on any of this; I only brought up some questions that might help you understand the motivation (beyond pure hate) of the side opposite you.

I apologize for misunderstanding what you were doing here. Please carry on.

John Konop February 26, 2014 at 7:18 pm

I was only trying to follow your logic….in my opinion nothing” nuanced” about hate…..God = love, think about it!

seenbetrdayz February 27, 2014 at 8:54 am

Jim Crow laws were exactly that: laws. It was an instance where the gov’t institutionalized racism and sanctioned such viewpoints.

In such cases, the state can’t rule one way or the other without in effect sanctioning one belief over the other.

John Konop February 27, 2014 at 9:51 pm

Bottom line you have no issue with restuarants, hotels…..denying service for race, religion…….?

seenbetrdayz February 28, 2014 at 12:55 pm

Why is it that if I don’t think gov’t should get involved it always becomes the extreme of “oh so you don’t care.”?

I would not patronize a business that discriminated based on race/religion/sexual preference. So yeah, I have an issue with it, but I also have an issue with gov’t butting in and telling people how to run their business if it means going against their religious beliefs. A business is either private property, or it isn’t.

Ghost of William F. Buckley February 26, 2014 at 1:54 pm

G’d, Guns, and Gayz

HB1023 addresses the concerns of Party conservatives for issues #1 and #3, in a stunning display of legislative efficiency. And, Senate Bill 301 helps Georgians get their gun on with issue #2.

Gladly supported by the armament bidniz, as well it should be: http://www.ammoland.com/2012/03/georgia-silencer-hunting-bill-needs-your-help/#axzz2uSIz4RR7

Yep, it’s an election year here in the Peach State.

Harry February 26, 2014 at 2:08 pm

You don’t have to try to understand my religious or moral beliefs, nor do I have to understand yours. The homosexual lobby is making clear that they will seek to limit my individual freedoms in order to advance their own ungodly agenda. If we force either you or me into a certain set of uniform anti-individual-conscience behavior, it will be to the detriment of all, and lead to further conflict. MLK could speak to that.

smvaughn February 26, 2014 at 2:52 pm

Exactly Harry. If MLK were around today he would surely speak out against the government forcing God-fearing Americans to accommodate persons who engaged in what they considered to be sinful behavior. And he certainly wouldn’t have stood behind the President smiling as the President signed a bill that limited the religious liberties of those God-fearing Americans.

John Konop February 26, 2014 at 3:04 pm

Help me understand the line? Obviously, adultery, divorce, lying, envy….were way bigger topics by God….should that be a reason to refuse service?

Harry February 26, 2014 at 3:31 pm

Yes that should be a reason, if my moral sensibilities are sufficiently offended by the behavior.

Ellynn February 26, 2014 at 4:03 pm

Last I checked, the 1st amendment do not state anything on moral sensibilities.

Chris Huttman February 26, 2014 at 5:26 pm

What an honor to have MLK’s press secretary commenting on the site now.

smvaughn February 26, 2014 at 6:55 pm

I was being sarcastic. Hence the picture of the Civil Rights Act signing, which in to Harry’s weird universe is the type of thing MLK would have opposed.

Ghost of William F. Buckley February 26, 2014 at 5:28 pm

I find it cunning that Uganda and Russia take a strong, populist homophobic stand, thus humiliating the US for having the temerity to recognize same-sex partnerships.

Recall that prior to WWII, Germany had lost its’ moral compass. Perhaps there is a parallel?

We are a society in great stress and I just don’t believe that the average American cares more about the legality of sexual matters of others as compared to more pressing issues, such as [virtually anything else].

But, if there is a sword to be found, someone will fall on it.

MaidenCrow March 27, 2014 at 3:56 am

Ungodly. Hm. Hey Harry how do you like your sex? Do you even have a partner? Or do you have multiple partners? Do you like bondage? Do you have a sort of foot fetish? Guess what Harry, all that is none of my damn business. What you do in your own time is none of my business. So why are you so special? Why is it your business to know what homosexuals do behind closed doors? Why is your “choice” to be straight, godly, and those who “choose” to be gay, ungodly? Why are you allowed to discriminate and do work that even god won’t do. In your bible, God claims that he will not interfere in your free will. So why are you so powerful that you believe you can interfere with others’? Your sexual life isn’t being put on bills to stop or to protect because most people in power are religious bigots that abuse their power because homosexuals aren’t like them. And it scares you.

Posner February 26, 2014 at 2:53 pm

As a threshold matter, what (in Georgia) currently prevents a private business from refusing service to gays? (there are potentially exceptions for “public” establishments such as hotels, restaurants, etc.)

I ask because the “landmark” case everyone always cites–the photographer being “forced” to photograph a gay wedding–arose because of a state law (in New Mexico) expressly forbidding discrimination against gays by business open to the public. To the best of my knowledge, Georgia has no such similar law. I could be wrong.

Jon Richards February 26, 2014 at 10:53 pm

Posner: To the best of my knowledge, gays are not a protected class in Georgia, nor are they under federal law. So, I don’t believe there is any legal prohibition against a store (or hotel, other place of public accomodation) refusing to serve gays. Of course, if the person happened to be black, female or one of the other protected classes, they couldn’t be refused service.

Posner February 27, 2014 at 11:31 am

Right.

It seems like almost every comment in this thread is based on a false assumption that gov’t is somehow forcing people to violate their religion to serve people. In Georgia, that simply isn’t the case.

There was a thorough examination of a business owner’s right to refuse service, on both secular and religious grounds, in the Volokh Conspiracy the other day.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/24/business-operators-right-to-choose/

If people actually want to be educated on the issue, that post is a good start.

Rick Day February 26, 2014 at 3:38 pm

If these bills pass into law, I will now be legally protected to discriminate against all self-identified Christians because my morals and beliefs feel that the recent Christian activity in Uganda is the work of the minions of Evil. Therefore all Christians who identify themselves as such are considered complacent in the new Death2allGays laws in Uganda, and other 3rd world ‘testing grounds’ of natives who thrive on myths and cool creation stories. Clearly, the work of Satan, in the guise of Jesus’ name amen. False prophets, etc.

I should, under this law, be allowed to ask a potential customer what their faith is, and then if I just don’t like the person or their ‘christian moralizing’, their ‘christian agenda to brainwash innocent children with their lifestyle’ or even their ‘family values’, I can persecute and freely discriminate against them because the law give me a right of Religious Freedom, which also clearly means the right to deny any group who, based upon my own morals, is clearly codified.

Why, I could claim that all African Americans are Christian, therefore I have to ban them all because some won’t self-identify when convenient. Because, my freedom, etc.

Oh yes, by all means, let’s finally even the playing field and give the atheists, Muslims, Satanists and non believers equal opportunity to discriminate against the evil majority. We have been waiting a very long time.

Sew the wind…. please.

Salmo February 26, 2014 at 3:43 pm

Could the product you sell be used by said Christians to further these things that you find objectionable?

Harry February 26, 2014 at 3:51 pm

Rick runs a club in midtown that a real Christian would most likely not frequent. Therefore, he’s just being “academic” with his remarks.

MattMD February 26, 2014 at 6:33 pm

What gives you the right or temerity to speak of “real Christians”?

I think some time in hell (if it were to exist) would serve you right.

Rick Day February 26, 2014 at 9:18 pm

It is OK Matt, they can’t help but judge. Hard wire.

Also, the club is my better known business. I also own a small convention and events center where we have had church services of many faiths and er, orientations. I’d let that building sit empty and drain a bit of profit than allow a Death2Ugandan Christian rent my space.

Meanwhile, HoliDay is approaching! Those Hindus know how to par-tay!

Harry February 26, 2014 at 3:48 pm

Private business has always had the right to discriminate against whomever they please. What is identified as public accommodation has always had the right to discriminate against anything other than statutorily protected groups. Homosexuals are not one of those statutorily protected groups except regarding marriage and other specific laws in certain blue states. Of course, the real problem is activist judges who like to make law rather than interpreting it.

Ellynn February 26, 2014 at 4:11 pm

So if a LGBT couple were in matching wheel chairs (statutorily protected group) they would legally have to be served?

Harry February 26, 2014 at 4:17 pm

Depends.

tribeca February 26, 2014 at 7:11 pm

You tell ‘em, Harry. I hate it when those durn #activistjudges ignore the Constitution and make laws striking down segregated schools, child labor, interracial marriage, and women’s rights. Why, I say they should interpret the Constitution the way our sweet, 7lb, 6oz, Baby Jesus intended for it to be interpreted when he whispered every word of the Constitution into Thomas Jefferson’s ears.

In all seriousness, homosexuals are a protected group, just not to the Constitutional extent of racial and religious minorities. The courts have struck down plenty of laws which discriminated against homosexuals. While nearly all of them have been limited to the public sector, there is a plausible Constitutional argument that can be made against this law.

Rick Day February 26, 2014 at 9:23 pm

how about we don’t wait for a law forcing us to be nice to each other, and actually be nice to each other?

Christians can’t judge people, by definition they are all nasty assed sinners. Converting souls to Christ is not a form of heaven currency meant to buy favor with The Lord In Charge. The mindset is “God is Angry with America. This is why I can’t make my pile like the rich I support through votes and General Dollar Store purchases. If people were Christian, He would be happy with us again, and I can (fill in personal desires).”

Christ’s love, down the Holy Toilet with the gays.

To be honest, the more gay bashing politicians come out of the closet, the more I am convinced all homophobes secretly want a big bear in their inner circle of, um, friends.

Three Jack February 26, 2014 at 3:47 pm

Why would a gay couple want to spend big bucks on a wedding cake if the cakemaker does not want to make the gay couple cake? Go to another cakemaker.

Just one more issue that is not an issue, but serves to divert attention from real issues. The GOP is not good at much anymore, but they have truly mastered the art of diversionary tactics to ensure the vast majority has no idea just how inept they are as leaders.

tribeca February 26, 2014 at 7:20 pm

Great point. If tomorrow a cake maker denied service to a gay couple because of his/her “personal beliefs” what are the odds the couple brings a lawsuit? Wouldn’t the more likely scenario be a complete blacklisting of that person’s business in the LGBT community and among the couple’s friends both gay and straight?

I just don’t see the point of this law. If you refuse service on religious grounds you’re losing business and running the risk of losing even more business through developing a bad reputation (this risk is way higher if you act like a jerk when you deny service). Yay, you’re protected from a lawsuit, but you probably weren’t going to get sued anyway. No cake is worth the court costs.

The only thing this law does is continue to perpetuate the stereotype that we’re all intolerant hicks.

Rick Day February 26, 2014 at 9:14 pm

Why would a black couple want to spend big bucks at my restaurant if I don’t want them to use my bathroom? Let them go use the blacks only.

See how that works? If it’s good enough for Paula, it’s good enough for Peter.

Three Jack February 27, 2014 at 1:11 pm

Rick,

I’m confident market forces would prevail in either situation without need of the police power of government. As others have noted, refusal to do business with a person due to their sexual orientation (or color in your erroneous analogy since it is already illegal to discriminate based on color) will more than likely out the business such that it will have serious difficulty surviving.

The Last Democrat in Georgia February 26, 2014 at 10:33 pm

Three Jack February 26, 2014 at 3:47 pm-
“Just one more issue that is not an issue, but serves to divert attention from real issues. The GOP is not good at much anymore, but they have truly mastered the art of diversionary tactics to ensure the vast majority has no idea just how inept they are as leaders.”

…+10,000,000

…I couldn’t have said it any better myself…Well said!

Blake February 28, 2014 at 5:04 pm

I would agree, except that some areas don’t have friendly alternative cakemakers/florists/photographers.

Ellynn February 26, 2014 at 3:56 pm

This opens the door for other forms of discrimations in the name of any “personal religious beliefs”. Some Penticostals will not allow women in pants into there stores. Some Baptists can ban people who drink beer (in public of course). Jewish business can stop serving all Christians. If you practice Pastafarianism, you can ban anyone on a gluttin free diet from entering your place of business. Buddist who practices ahimsa can bann all legal gun owners from his store. Irish American Catholics could ban North Irish non-Catholics. It’s endless.

On the other hand, just think of all the new stores that will have to open just because I can not shop at Business A, B and C, because they disagree with my equally protective personal religious belief (written with a sacrcastic font…)

Harry February 26, 2014 at 4:02 pm

Freedom and liberty are amazing concepts, really only available to mankind since the Enlightenment.

Ellynn February 26, 2014 at 4:08 pm

Enlightenment… oh the irony.

Ghost of William F. Buckley February 26, 2014 at 5:31 pm

That’s pretty funny, I don’t care who you are…

Harry February 26, 2014 at 5:37 pm

May be funny to you, but a lot of people died to support it.

Ellynn February 26, 2014 at 5:53 pm

Many of whom were gay. And Atheist. Lots of Atheist.

Harry February 26, 2014 at 5:57 pm

Ja, und?

MattMD February 26, 2014 at 6:38 pm

The irony is that you don’t seem to understand what the Enlightenment was about any more than what cherry-picked information you may have read in some Hannity or Beck ghost-written book.

That is why everyone is laughing at you.

Hint: Google it.

Harry February 26, 2014 at 7:37 pm

Thanks for the heads up.

moser February 26, 2014 at 7:41 pm

Posner has a good point. I believe this was to preempt the eventuality of expanding the anti-discrimination list to include homosexuals. Also, the House bill is out. That is good news because that language was reckless and focuses the argument to the Senate version.

From a Christian perspective, my takeaway from Martin Luther (not the King Jr one) is to never codify piety but codify the ability to be pious – aka liberty. To do a public business, I only do business with sinners and I myself am a sinner, too. I can’t pick and choose the sins I don’t like because they’re all wrong. Therefore, I have no Christian discrimination backing. Additionally, I work for an employer. I have obligated myself to perform those duties expected of me. If I am at odds with that expectation, my faith compels me to find a more suitable station or to otherwise find my way through the challenge. It does not give me a free pass to not meet that obligation without recourse – unless laws offer such an alternative.

Here’s one place where I think it gets interesting. I don’t think societally we’ve reached a tipping point where every job so affronts religious faith to the point where to work is to deny God. So, I don’t think the employment and employer elements of the law are appropriate for this time. I do think the Peyote/Native American challenge between the federal government and the religious practice was worthy and timely to consider.

The second place where I think this gets interesting is small business. And I probably mean so small as to be 3 employees-ish. Here’s the rationality I see from the Christian perspective. Perhaps I make cakes. I only make cakes for sinners. I don’t get to pick and choose my cake destinations, basically. Now, for example, let’s say I also deliver and setup cakes and I find out that I need to deliver this cake to a private swingers get together (sin). Some non-Christians are also starting to be a bit squeamish about what might come next. And, I expect, the big Publix store manager would also be a tad worried about sending an employee into that situation. Generally, I think these situations don’t happen as the cake buyer accepts that they might need to pick up the cake. But, the cake provider at this point isn’t participating in the sin. Their cakes are only given to sinners. The imposition is the graphic exposure rather than being a sinner. I really don’t want to think about the court and law-making in this example. But it does set up the thought experiment in place for another proprietor.

Using the second setup, now let’s make me a photographer. Being legally bound to photograph the swinger get together converts me into a participant and thus a sinner. My liberty is now infringed.

Now let’s make the cake maker/deliverer in a small company and at Publix and the photographer back into serving a homosexual wedding. Selling the cake doesn’t pass scrutiny. Delivering the cake probably doesn’t pass scrutiny. The photographer actually has a different concern.
I see difficulties in the whole business/individual confusion. I don’t want that mixed into a single portion of law as I believe those two entities should be dealt with separately on this matter, with a possible exception to some small business considerations.

Well, darn. My computer battery is dying and can’t get to the legal language. I am just sharing the thought process I’m using to consider portions of appropriate codification or if it’s even necessary at this time. I was very bothered by the house bill and was concerned regarding the language about children as well. Admittedly, I didn’t read the Senate version as the House bill was written in a way that needed to be stopped quickly. I’m glad to only consider the Senate version. I wish I were more educated on other religious faith systems so that I could more adequately consider those differences.

Harry February 26, 2014 at 7:59 pm

I’m a CPA/tax preparer, and for my own reasons I don’t prepare tax returns for homosexuals. Sue me.

John Konop February 26, 2014 at 8:56 pm

Seriously Harry? When it comes to business, I must do what is the best interest of my stock holders, end of story. I see one color it is green, on paper and usually has dead presdents on it….as an accountant I am sure you get it…..

Harry February 26, 2014 at 9:02 pm

I don’t work with homosexuals for my own reasons. The money is not the issue. Would you really do anything for money, even if it offends your morals or sense of propriety?

John Konop February 26, 2014 at 9:34 pm

I do business with sinners everyday…..btw I am in the club……

Harry February 26, 2014 at 9:44 pm

Would you do business with the mafia? With someone who had sex with animals? I have my standards, they may not agree with yours. I believe the anal cavity was meant for elimination, not sex. Any other use disgusts me, yes even in the case of a man using a woman in that way. The Bible happens to agree with me. I will do business with sinners, but I draw the line when they are flagrant about it and telling me that I must do business with them or they will sue.

John Konop February 26, 2014 at 9:53 pm

I would not knowingly do business with the mafia or a person having sex with animals, it is illegal…not the same as a person being gay, jewish, Black……

Harry February 26, 2014 at 9:57 pm

So when it was legal to discriminate against blacks, MLK should have just accepted it and not looked at his own moral compass?

tribeca February 26, 2014 at 10:32 pm

Wait, are you co-opting MLK in order to support your close-mindedness? I’m prettay, prettay, prettay sure he’d be on the side of the LGBT community. For support, look no further than Rep. John Lewis’ newly minted status as a co-chair of Southerners for Marriage Equality.

Look, the discrimination MLK faced was coming from a vitriolic hatred for him based upon the color of his skin. It was violent, brutal, and state sanctioned. He was beaten, jailed, vilified, and (ultimately) killed because of his skin color. The only “discrimination” you’re facing is having to think about two men kissing. Pretty sure those don’t rise to the same level.

Harry February 26, 2014 at 10:44 pm

Think whatever you like, just don’t sue me.

smvaughn February 26, 2014 at 10:02 pm

So you’ll do business with lesbians and gay men who don’t engage in anal sex?

What about people who wear wool sport coats with suede elbow patches? The Bible denounces that as much as it does homosexuality.

It must be exhausting running all of your potential clients through the Leviticus checklist.

Harry February 26, 2014 at 10:12 pm

Just don’t sue me.

Rick Day February 26, 2014 at 9:48 pm

Harry answers to no one but God

and Hannity.

Harry, I certainly hope if you are in an accident and injured, that you don’t demand there only be hetro cops, paramedics, er staff and doctors work with you.

Not a good last thought to take before your Judge in your afterlife.

Harry February 26, 2014 at 9:54 pm

You’re free to express your opinions and I won’t sue you.

Rick Day February 26, 2014 at 11:42 pm

Wow, do you have a ‘gay test’ all your clients have to take before you interview them, or do you have a magic cross that glows red when someone is lusting for your hot spreadsheets?
Or do you just rely on ‘gaydar’?

A man reflective of God’s Love you truly are, beancounter.

Jackster February 27, 2014 at 12:42 am

Yes – if Harry’s advances towards his female clients are rejected, they are lesbians and therefore will need to go hit up the big green square.

If Harry’s advances towards his male clients are rejected, then it’s a toss up. They’re either gay and need their taxes done and therefore do not out themselves, or straight and need their taxes done.

Either way, Harry knows his clients will entertain his advances, male or female.

Oh, and this law is absolute crap – Civil Rights should be respected and Christians should love their neighbor. I don’t understand why that’s so hard to accept.

Harry February 27, 2014 at 12:48 am

Just don’t sue me.

Blake February 28, 2014 at 11:04 am

I make no guarantees.

jbgotcha February 27, 2014 at 6:48 pm

CPAs are a dime a dozen. It’s not like people are knocking down his door to get service. Harry is on here flexing…I bet he doesn’t talk so openly in everyday life, and I’m willing to bet he has done work for someone who is gay.

Harry February 28, 2014 at 3:28 pm

Of course I don’t mind working for gays as long as it’s on a don’t ask don’t tell basis.

Dave Bearse February 27, 2014 at 12:21 am

The GOP is against special rights for special classes of people, except when they aren’t.

The country won’t elect a representative of desperation and backwardness to the White House. Time to get to work on the ’24 campaign.

Jackster February 27, 2014 at 12:45 am

I would hope the GOP would be for applying laws universally – when you start to identify special classes of people, it’s probably because the laws weren’t being applied equally in the first place.

When I have to explain my actions to the govt, I start to question whether I had that liberty in the first place.

Harry February 27, 2014 at 12:49 am

Then don’t ask me to explain my actions to the government either, and don’t tell me who I should accept as a client.

Charles4Truth February 27, 2014 at 8:40 am

Please help me understand.
I am not in support of the bill because it isn’t needed..

Think about the hypocricy.
In order to make a business serve every person no matter what, the government must discriminate against business owners.

They shut down businesses based on their beliefs. How is that not discrimination?

Do we believe in free markets or not.

xdog February 27, 2014 at 9:21 am
objective February 27, 2014 at 11:10 am

i’ve always pondered that re: this type of law, there should be a difference of standards between public and publicly-held corporations, and closely-held corporations. religious organizations already get the exemptions they need. in the end, to a large extent, this law just iterates existing case law. and that same case law will, as it keeps moving, provide the legal basis of protection against suits if you choose to discriminate. but some exercises of belief, legitimate belief or not, should carry risk. that’s why god gave us (at least most of us :? the ability to use wisdom and good judgment.

Charles4Truth February 27, 2014 at 12:08 pm

The Risk comes from losing customers, not losing your business at the hands of the government.

How is it not Hypocritical to tell one person to repect the other person lifestyle and beliefs all the while condemning and shutting up the others just because it is opposit?

It is important to respect both. If the business owner wants to exclude someone and you diagree; walk away and spend your money elswhere and tell everyone you know. If it is known and the public disagrees, they will go out of business. “Note PUBLIC not Government”

Just as if the roles were reversed… If one opens a business that I disagree with and will not to serve me, I take my money elsewher and tell all who fall in my circle.

Raleigh February 27, 2014 at 11:57 am

I can’t believe I read this whole thing but I did and I’m enlightened by everyone’s comments. All this for a baker who refused to service a customer because they were asking him to do something that insulted his religious convictions. In Oregon what he did is illegal under state statue and he is now voluntary out of business.

So here are two questions.

1. Why would anyone want to force anyone especially someone in the food industry into doing something they don’t want to do? Unless it is to force their own agenda upon said person.

2. How would the customer feel if the baker took their business and donated their money to say the nuts at Westboro Baptist Church in the customer’s name? As far as I know there is no statue telling the baker what he must do with the money.

Just for full disclosure I would have baked the cake for them and took their money but if you are going to eat a cake I bake please have your doctors number handy or at the least a big bottle of Tums.

Mrs. Adam Kornstein February 27, 2014 at 1:38 pm

Oh brother, so it’s all boiling down to cake, except that’s not at all what this was about.

These bills were always a Pandoras box of “what if’s” but in the end it’s redundant Georgia law, since in very limited circumstances LBG sometimes T people have no Federal or Georgia protections. They can be refused service or a job based on a persons individual prejudice religious or otherwise.

Harry, you were never going to be sued, in Federal Court or any Georgia court.

The rights and protections for same sex couples are at a tipping point, and it’s not in favor of denying their rights. It’s time to let this go.

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