Chandler Epp: In Case of Georgia Religious Freedom Bill, Much Ado About Nothing

March 4, 2014 11:00 am

by Jon Richards · 5 comments

Editor’s Note: The following guest editorial in support of Georgia’s Preservation of Religious Freedom Act was written by Chandler Epp. An opposing viewpoint written by Anthony Michael Kreis appears here.

An important and historically uncontroversial religious freedom bill died in the Georgia General Assembly yesterday, the tragic victim of a rush to judgment and colossal misunderstandings about its effects.

In an all-out effort to kill the legislation, opponents performed impressive feats of logical jujitsu to label Georgia’s Preservation of Religious Freedom Act—and its supporters—as un-American, pro-discrimination and anti-gay: first, by suggesting that the bill was akin to controversial proposals levied in Kansas and Arizona (it’s not); then, by peddling wild and unsubstantiated claims about the bill to any and all who would take them at face value.

Ardent voices in national media outlets declared the legislation would allow “restaurateurs and hoteliers [to] turn away same-sex couples” or permit pharmacists to deny therapy to HIV/AIDS patients. Others said it would “open the door to state-sanctioned discrimination against gays and lesbians.” Prominent Georgia businesses also played along, asserting that the law, if passed, would “cause significant harm to many people” and even “result in job losses.”

These arguments would make for a very convincing case against the bill if, in fact, the statute did as it was portrayed to do. It does not.

There’s a very elementary reason for which you’d be hard-pressed to find any mention of gays, same-sex marriage or denial of service in the aforementioned legislation. That’s because the bill is of another matter entirely.

What the proposed act does mention is the free exercise of religion. Its passage would bring Georgia in line with 31 other states and the federal government in requiring the state to consider religious belief as a legitimate, arguable legal defense in court. Georgia today is in the minority of states whose citizens have less religious freedom than federal prison inmates.

In the absence of such legislation, the state of Georgia is not legally obligated to avoid infringing upon your religious freedom, nor is it required to consider a less restrictive means of doing so when religious liberties come into conflict with existing law.

Instead of providing a de facto “right to discriminate,” a bill like SB 377 would yield a simple balancing test that ensures that big government can’t trample upon people of faith without proving just cause.

A bit of background for the uninitiated… The proposed Georgia legislation was modeled after the federal Religious Freedom Restoration Act (RFRA), a landmark, bipartisan law that passed Congress in 1993 with just three dissenting votes. That law was made necessary by a U.S. Supreme Court decision that curtailed what had previously been understood as a fundamental right to religious freedom as defined in the First Amendment and by prior court interpretations. When, in the late-1990s, the Supreme Court removed the law’s applicability to state and local governments, a push to codify religious freedom rights at the state level began in earnest, spurring nationwide efforts to pass state versions of the federal RFRA law.

That Georgia’s religious freedom bill could be construed as “anti-gay” would surely come as a surprise to:

  • Liberal lions Chuck Schumer and Ted Kennedy, who were primary sponsors of the federal RFRA;
  • Democratic President Bill Clinton, who signed the federal RFRA into law;
  • Former state senator Barack Obama, who voted in favor of Illinois’s RFRA;
  • Bipartisan lawmakers in 18 states that have already passed their own version of RFRA;
  • Judges in 13 states that have ascribed RFRA-style protections to its citizens; and
  • The nation’s top religious freedom legal scholars—including those that support same-sex marriage—who not only endorse RFRAs like Georgia’s but correctly insist that they have “nothing to do with gay rights” whatsoever.

Furthermore, that Georgia’s religious freedom bill could be interpreted as “pro-discrimination” would also come as a shock to the countless people and organizations such legislation has undeniably helped:

  • Public-school students disciplined for wearing religious symbols or garb to school;
  • Houses of worship denied local building permits on terms equal with secular structures;
  • Medical professionals who, for religious reasons, abstain from participating in surgical abortions;
  • Turban-wearing, minority-faith adherents denied jobs because of clothing and appearance regulations; and
  • Church ministries banned by local governments from feeding the homeless or serving ex-prisoners.

These are all real-life cases that have been resolved, often without costly litigation, as a result of the protections afforded under laws like the one proposed in Georgia.

What’s not a real-life case is the hypothetical one you likely heard a lot about in recent days: that of the Christian businessowner who shields himself under a dubiously worded “religious freedom” bill to discriminate based on sexual orientation.

Here’s a fact: In more than 20 years that the Religious Freedom Restoration Act and other state versions like it have been in effect across the United States, not once—in thousands of possible cases—has this legislation been successfully used in court to justify discrimination against a gay person or couple on the basis of religion. Never.

Here’s another: Laws like Georgia’s proposal are neither new, nor partisan, nor inherently discriminatory, nor motivated by the advance of same-sex marriage across the United States. Those who claim otherwise ignore 20+ years of legal history, numerous real-world RFRA applications and the most basic of understandings about a bill that’s barely three pages in length.

So, why the uproar over Georgia’s Preservation of Religious Freedom Act? Chalk it up, in part, to poor timing: an unfortunate entanglement with different legislation in Arizona and Kansas made for all-too-easy yet erroneous comparisons. Rampant and unchecked misinformation, too, led to the bill’s ultimate demise.

But, for us, the lesson here must be a cautionary one about the perils of premature judgment and the importance of heeding historical contexts in evaluating legislation. Perhaps, after all, we could have avoided such hysterical furor over a religious freedom bill designed so explicitly to protect—not prejudice.

Anthony is right: we should oppose laws that single out gays for discrimination. This law was not one of them.

God willing, we’ll see it again next session.

Chandler Epp is a public relations strategist in Atlanta. The opinions expressed here do not represent the positions, opinions or policies of his employer, clients or any other person or organization. Chandler formerly served as state vice chairman for the Georgia Association of College Republicans and chairman of Young Georgians for Romney. Follow him on Twitter @chandlerepp.

analogkid March 4, 2014 at 12:18 pm

Here’s a fact: In more than 20 years that the Religious Freedom Restoration Act and other state versions like it have been in effect across the United States, not once—in thousands of possible cases—has this legislation been successfully used in court to justify discrimination against a gay person or couple on the basis of religion. Never.

Serious question: How many times in the 20 years that Georgia hasn’t had its own RFRA statute has a religious person been discriminated against in a way this law would prevent?

DewayneW March 4, 2014 at 1:41 pm

Analog – Would you say that is a flaw in the laws or the change in the judicial system?

As long as judges rule as if they are legislators and refuse to consider original intent, no law is guaranteed.

analogkid March 4, 2014 at 2:53 pm

Neither. My point is that if states that have enacted the law have had zero instances of discrimination against a gay person, and Georgia has had zero instances of discrimination against a religious person over the same time period, then perhaps it is unnecessary to do anything.

This sounds a lot like a solution in search of a problem.

Three Jack March 4, 2014 at 1:53 pm

While I don’t agree with Chandler’s position on the failed legislation, I am glad he at least makes a reasoned response when compared with others. Debbie Dooley was quoted yet again making veiled threats about a boycott and how certain folks will pay in November for opposing this legislation. If history is any indication, Coke, HD, IHG, MACOC, UPS and any others she named as targets should expect absolutely nothing to happen.

Posner March 4, 2014 at 4:00 pm

“In the absence of such legislation, the state of Georgia is not legally obligated to avoid infringing upon your religious freedom, nor is it required to consider a less restrictive means of doing so when religious liberties come into conflict with existing law.”

The first half of this statement is simply false, and the second half is, at best, extremely misleading.

Oregon v. Smith dealt with laws of general applicability (e.g. murder, polygamy, registering for the draft), and the opinion ONLY applies to such laws. The only thing Oregon v. Smith said was that there is no exception to laws of general applicability for “religious” reasons to be found in the First Amendment. For example, one cannot claim immunity to a murder prosecution because the murder was done for “religious” reasons. This is not exactly a “radical” perspective–the opinion was written by that great liberal lion, Antonin Scalia.

All RFRA’s do is say that, yes, there is a religious freedom exemption to laws of generally applicability, but ONLY IF the law does not pass strict scrutiny. In other words, if there is a compelling gov’t interest (like, preventing murder) and the law is the least restrictive means of achieving that purpose, you CAN NOT claim a religious exemption (so, no religious exemptions from murder).

Incidentally, almost every example you cite as “the countless people and organizations such legislation has undeniably helped,” were not predicated on “laws of general applicability.” In other words, RFRAs had nothing to do with them. For example, you cite “Public-school students disciplined for wearing religious symbols or garb to school.” Almost by definition, regulations governing students in public schools aren’t “laws of general applicability” because they don’t apply to everyone. Sure, the First Amendment is absolutely important in deciding such a case, but a RFRA designed to apply strict scrutiny to laws of general applicability won’t impact the outcome.

I tend to agree with the guest poster that much of the rhetoric regarding these issues is inaccurate and overblown. But, as this post demonstrates, that is because the law is quite complicated.

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