Why I support RFRA.
I’m a staunch supporter of religious liberty; I support the federal Religious Freedom Restoration Act (RFRA). That law requires if a person’s religious exercise is “substantially burdened” by government, that burden can be upheld only if it serves a compelling governmental interest and there is no less restrictive means to serve that interest. As a religious liberty scholar, an LGBT person, and a person of faith, I could support similar legislation in Georgia.
I support RFRA because I do not believe people of faith should have their freedom restricted without government demonstrating good cause. In this, the LGBT community has much in common with religious objectors. Religious minorities don’t want the unnecessary intrusive hand of government in their lives, just as LGBT people don’t want it in theirs.
Narrowly crafted state-level RFRAs can achieve laudable ends. Take, for example, a 1996 Wisconsin case. Members of the Old Amish faith were fined for failing to display bright orange triangles on their horse-drawn buggies. They objected on religious grounds. The Amish asserted, among other things, the colors were too “loud and bright” and that they could achieve the state’s traffic safety concerns with lanterns and duller reflecting tape. The Wisconsin Supreme Court, using the same test codified by the federal RFRA, ruled in the Amish’s favor. At the end of the day, safety protocols were satisfied and individual religious liberty was preserved without negative externalities for unwilling third parties. This case illustrates a fundamental point: religious liberty is a shield from government, not a sword to injure others.
Why I opposed SB377 and HB1023.
As originally drafted, SB377 and HB1023 included a definition of “person” that would have broadly protected for-profit businesses. The marketplace falls outside the bounds of constitutionally protected religious practice. Businesses do not— and should not— have any more right to challenge neutral laws and regulations in courts on religious grounds than they do on non-religious grounds.
Philosophically, businesses have no soul to be saved. Practically, businesses that successfully secure a religious accommodation could gain an unfair competitive edge over non-objectors. For these reasons, just as the Constitution does not provide the right for businesses to raise religious objections, statutory law must not confer such a general right.
Some argued Georgia’s legislation was fundamentally different than Arizona’s controversial SB1062. But, this for-profit inclusion was one of the two main goals of the Arizona legislation, now vetoed by Governor Brewer. Arizona already had a mini-RFRA. The attempt to extend that law’s protections to businesses, which could be used to raise objections to nondiscrimination laws, was exactly why the general public and corporations rejected Arizona’s SB1062.
Why the LGBT community opposed SB377 and HB1023.
The LGBT community forcefully pushed back against these bills and it’s important to understand why. This community is skeptical of the General Assembly, which has previously used religious rationales to regulate their lives and continues to show little will to protect them.
There are no statutory safeguards for LGBT public employees from discrimination. Legislation to give much needed protections has languished in House committees for no defensible reason.
At least 115 religious schools in Georgia have harsh anti-gay policies. Yet, the state funnels quasi-public money to these schools. Legislation to remedy this grave injustice against LGBT youth has not moved.
Georgia has no public accommodations law—for anyone. Georgia joins only Alabama, Mississippi, North Carolina and Texas in its abject failure to protect citizens from unfair, class-based discrimination in the public square.
It is legal in Georgia to deny people housing or employment on the basis of actual or perceived sexual orientation even though a large majority of Georgians favor protections for the LGBT community. Polling from 2013 shows that 72% of Georgia voters support banning workplace discrimination.
Yet, some elected officials tell us that nondiscrimination laws aren’t necessary because discrimination doesn’t exist. LGBT Georgians know this is simply not true.
More than just a fear of losing their job or being turned away from a place of business, many LGBT people live in constant fear for their very lives. The LGBT community has taken great strides to push back against the harms of discrimination, successfully securing municipal anti-discrimination laws in certain discrete municipal jurisdictions. An individual’s right to pursue their livelihood should not be dependent upon where they live. As the LGBT community works towards securing statewide protections, it should come as no surprise that any law that could remotely undermine those hard-wrought municipal protections would bring resistance.
How we should move forward.
Georgians must sit together and discuss how we can protect the religious faithful and the LGBT community. While I don’t speak for the entire LGBT community, my door is open to Representative Teasley, Senator McKoon, and others for those conversations. In partnership, community stakeholders and legislators can do great things for Georgia. Working in a coalition, we can craft comprehensive civil rights legislation that will attract broad consensus. We can forge a reputation for Georgia as a place of tolerance that will make us attractive to businesses and the nation’s best and brightest minds. Together, we can advance the cause of universal human liberty.
Anthony Michael Kreis is a Ph.D candidate at the University of Georgia’s School of Public and International Affairs and a graduate of Washington & Lee University School of Law. His scholarship focuses on religious liberty and equal protection. He writes in his individual capacity as a religious liberty scholar, and does not represent the position of any institution or organization with which he is affiliated.