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.