Hobby Lobby and Religious Freedom in Georgia

July 1, 2014 9:32 am

by Jon Richards · 5 comments

In Monday’s decision in Hobby Lobby, the Supreme Court used the federal Religious Freedom Restoration Act as the basis for its decision. In simple terms, RFRA allows someone who believes that a law interferes with his or her freedom of religion to require the state to prove a compelling governmental interest in the law’s requirements, and to show that the law uses the least restrictive means of advancing that interest.

In Hobby Lobby, the Supremes noted the accommodations made for nonprofit religious corporations and decided there were less restrictive ways of providing coverage for certain contraceptive methods beyond requiring the Christian owners of the arts and crafts chain to pay for it.

Following the decision, there were calls to have Congress repeal RFRA completely, or to modify the Affordable Care Act by stating that RFRA claims would not apply to the contraceptive mandate. Meanwhile, religious leaders representing over 100 million people wrote Congress to request that RFRA not be modified.

In 1997, the Supreme Court decided that the RFRA was only applicable to Federal law. In order to provide the same level of protection at the state level, many states passed ‘Mini-RFRAs,’ using similar or identical wording to the Federal law.

In the 2014 Georgia legislative session, Rep. Sam Teasley and Sen. Josh McKoon sponsored the Preservation of Religious Freedom Act that was intended to extend RFRA protections to Georgia law. The bills did not survive the legislature’s Crossover Day due to concerns expressed by the business community and worries that its passage could enable discrimination against LGBT individuals.

Shortly after the Court announced its decision in Hobby Lobby, Eric Tannenblatt, the co-chair of the Public Policy and Regulatory Affairs practice at McKenna Long & Aldridge and former chief of staff to Gov. Sonny Perdue, sent out this tweet:

Because RFRA is limited to Federal law, there may be a need for a separate state version, even in light of the Hobby Lobby decision. However, the timing and messaging of the tweet should be noted.

We understand Senator McKoon plans to re-introduce the Preservation of Religious Freedom Act when the legislature convenes again in January. Compared to the 2014 effort to get the bill passed, he will have to deal with a Supreme Court decision that specifically includes certain for-profit corporations having standing to sue under RFRA. He may also have to deal with the distinct possibility that at this time next year, the Supreme Court will be announcing its decision on marriage equality.

{ 5 comments… read them below or add one }

John Konop July 1, 2014 at 1:33 pm

How far does it go?

………..Justice Ruth Bader Ginsburg wondered aloud in her dissent, “Would the exemption … extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus)?”……….

John Vestal July 1, 2014 at 2:03 pm

Jon, it’s pretty clear that the push in several states to adopt their own “versions” of the RFRA is proximate not so much to the HHS contraception mandates but to a few unrelated factors: (1) the addition of “sexual orientation” as a protected class within the definitions several state/local anti-discrimination statutes; (2) the long string of court victories (and growing longer with Kentucky, just today, by a Bush41-nominated judge) over anti-SSM bans; and (3) the inexorable growth of support for SSM across the broad demographics spectrum.

The new “RFRA” passed by the Mississippi legislature takes effect today. A couple of months ago, some businesses in Jackson started a campaign to counter the passage called “If You’re Buying, We’re Selling” with a simple mission: to give businesses the opportunity to state that they were taking a stand against discrimination and would not be using “RFRA” to turn customers away. Participating businesses are offered this window sticker to let the public know they were participating. (Predictably, the logic-challenged savants at the Tupelo, MS-based American Family Association offered up their unintentionally Onion-worthy take on this :>)

Yes, I also expect Georgia’s take on an “RFRA” will get revisited next year, primarily because of the aforementioned rising tide of support for SSM and other LGBT civil liberties. An “RFRA” is an offer of some codified “sandbags” to protect the hill on which that shrinking number of folks still fighting against the tide choose to remain.

Oh, they’re going to die on that hill…but, by golly, they’re gonna die DRY! ;-)

Jon Richards July 1, 2014 at 3:21 pm

John, I’m sure if you asked Senator McKoon if his goal in introducing a state-level RFRA was to provide some Christians a legal defense against discrimination suits filed by gays, he would tell you that wasn’t his purpose at all.

And he would probably use what happened in Hobby Lobby as an example of what the law was designed to do–provide a remedy to a problem that was less restrictive than originally mandated. As Anthony Michael Kreis pointed out on Twitter this morning, the Hobby Lobby decision doesn’t apply to state contraception laws because the federal RFRA does not apply to state laws.

Presumably, if Georgia’s RFRA were to pass, a closely-held business in Georgia could apply for the same exemption enjoyed by Hobby Lobby.

I believe, although I don’t know for sure, that if a business refused to serve a gay customer citing a state RFRA, a judge would have to decide whether the state had a compelling interest in enforcing non-discrimination against that customer. If that’s the case, the passage of a RFRA would not mean that such discrimination would be automatically sanctioned by the law.

Harry July 2, 2014 at 4:52 am

Yesterday I was able to visit the brothers at the Benedictine abby of St. Vaclav in Broumov, Czech Republic. The monastery has endured many trials and tribulations over the centuries, the latest being the communist purges of the 1950s-1970s. As these brothers and the nearby sisters were unable to compromise with socialist laws and agenda, they were locked up in a concentration camp set up in the facility, and restrained with no rights. 60,000 of their books and manuscripts were shredded. Why? Simply because they wanted to live a holy and simple life and were unable to participate in the prevailing communistic worldview. Thus they were a bad example for others.

The Last Democrat in Georgia July 2, 2014 at 7:40 pm

Interesting.