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.