Will Protecting Religious Freedom Damage Georgia’s Reputation? Two Opposing Views

Two days ago a letter was sent to all 180 state Representatives (and presumably all 56 Senators) from Trey Childress of a group called Competitive Georgia. According to the Political Insider, the group is “a coalition of mostly business interests “united against discrimination.”” And as you will see below, Childress warns that passing a bill taken from a federal law which has been on the books since the Clinton years will damage Georgia’s reputation and ruin it’s businesses. The full text of the letter I received is below the fold, as is a response from the House sponsor of the bill Rep. Sam Teasley.

Add your comments in the comment section.

December 16, 2014

Dear Representative,

As the Georgia General Assembly is set to reconvene next month, I am writing to express my concern about a piece of legislation to be introduced and considered that presents real risk to Georgia’s economy and business reputation.

Georgia has a proud record of growing its economy—ranked as the best state in the country for business, home to the world’s busiest airport, the fastest growing U.S. port, and 31 Fortune 1000 headquarters. This success is dependent on a business-friendly environment, tax incentives, an educated workforce, and a reputation for welcoming people of all backgrounds from around the globe for trade and commerce with good ‘ole Southern hospitality. But Georgia’s reputation and economic opportunity are at risk by those who would compromise it for a path of political convenience.
Legislation is to be reintroduced to the Georgia General Assembly, labeled the “Protection of Religious Freedom Act,” that would allow individuals the broad discretion to claim that laws do not apply to them if they conflict with their religious freedom, a fundamental right already appropriately enshrined in our Constitution and federal laws. This proposed law is a blunt instrument that creates concerning exposure for minorities and those who are otherwise vulnerable, at the hand of those who would misuse it.

This state law is suggested to protect citizens from other laws in the name of religious freedom, but the sponsors offer no specific examples of state laws from which citizens need protection. One wonders why they cannot name specifically the problems to be addressed.

I suggest there are two alternatives: either the concerns to be addressed are too controversial to discuss specifically and publicly; or there is nothing specific to be solved or gained other than a political win. Both scenarios do a disservice to our citizens, responsible public debate, and our reputation as a state.

Indeed, there are legitimate issues of religious freedom that deserve transparent discussion and public debate. If the concern is about the display of scripture in the public square, I ask you to address that concern specifically and directly. If the concerns are about protecting religious freedom in conflict with school curriculum, please address that concern specifically and directly. After all, addressing problems with solutions and transparency is what we expect of our leaders. Instead, this proposal is a broad piece of legislation couched in sound bite and names no evil, but leaves it to individuals at their own discretion to name for themselves. Therein lies the danger.

Politicians propose laws for two reasons: To address problems in the law and to send messages to important constituencies. If one cannot identify specific laws or prevalent religious freedom concerns from which this legislation would protect citizens, then this law must be designed to score a political win. This scenario is far more troubling.

In the context of current events, this can stoke the passions of a sensitive but important debate about how we treat others in our community who are otherwise unprotected. Such a debate should happen openly, soberly and respectfully, not with innuendo and subterfuge. Intended or not, it can appeal to the worst in human nature by catering to fear and disgust of those we do not understand. And it wraps it in a package that would otherwise seem innocuous, because who can be against religious freedom?

Georgia is better than this. Our reputation, as a state, is at risk. And our economic opportunity is at risk because of those who would score a few political points without clear benefit to citizens, but with much to lose. Let’s continue to show the world what a welcoming and warm place Georgia is as a home and a place to do business, to treat others as we would want to be treated, but also to preserve our reputation and economic opportunity as a state.

I hope that as this bill is considered you will do so with great caution. And I welcome the opportunity to speak with you further about it. In the meantime, please do not hesitate to contact me if you have any questions or concerns.

Sincerely,

Trey Childress

Response from Representative Sam Teasley

Yesterday, Trey Childress sent an email to every member of the Georgia House suggesting that since he has not heard of any specific concerns that a state Religious Freedom (commonly known as RFRA) measure would address, he can only draw the conclusion that there is some nefarious motivation behind the effort. In multiple meetings with parties both in favor and concerned about the legislation, I have demonstrated case after case of government hubris and overreach. Mr. Childress has not attended any of those meetings and never reached out to me or the Senate sponsor of the bill to get answers to his questions. On top of that, while decrying “innuendo and subterfuge,” he uses a whole lot of both in assessing the motives of proponents of this measure.

Not long ago, a student at Sutton Middle School repeatedly sought permission to start a religious club at their school. Despite the fact that the school had multiple other student clubs operating on campus, the Principal at first denied the request. After the student’s parent noted that was not appropriate, the Principal allowed the club if the club paid rent and did not advertise on campus. This was a blatant denial of equal treatment granted to other clubs. As the club slowly grew despite the illegal restrictions, the Principal went so far as to dictate that if the student even mentioned the club to other students he would be punished. It was only after being served a lawsuit did the school end its blatant disregard for the student’s fundamental right to religious freedom.

Many observant Jews believe that the body ought not be disturbed after death, so they object to an automatic, routine autopsy. I recently met with a Rabbi who expressed his frustration to me by saying that he had to argue with the coroner all the time about this. Because Georgia does not have a state RFRA, if the local government insists on performing the autopsy, there is no legal recourse.

The protections for religious expression that had been in place for 200 years no longer apply due to the 1990 Smith Decision from the US Supreme Court. While this may be a surprise to many, the citizens of Georgia do not have adequate protection from state and local government as it pertains to their religious exercise. The purpose of a state RFRA is to make clear to all government officials what the rules are so that litigation can hopefully be avoided. I understand why groups like the Americans United for the Separation of Church and State oppose this, but since this has been on the books in various forms for over 20 years (with no cases of this language being used as a “blunt instrument” to discriminate against any minority group) with at least 30 states having this protection for their citizens, it begs the question, “Why is there so much over-the-top push back on this measure?”

51 comments

    • John Konop says:

      Buzz,

      ……..This state law is suggested to protect citizens from other laws in the name of religious freedom, but the sponsors offer no specific examples of state laws from which citizens need protection. One wonders why they cannot name specifically the problems to be addressed……

      The above does not bother you? This law sounds way to open ended, what am I missing?

    • John Konop says:

      Buzz,

      In the name of religious freedom should a business owner have the right to not serve mix-couples, gays, different religions….? A black guy runs low on gas in a rural area, should the business be able not to sell him gas based on religious freedom? A mixed couple runs out of baby formula, and their child needs food, should they be denied service for religious reasons? Do you really want to go back to segregated water fountains, restaurants, buses, trains, hotels/motels, gas stations…..? Help me understand the line, and purpose of the law? This sounds like laws that are pushed by radical Muslim groups in their countries….

  1. greencracker says:

    “While this may be a surprise to many, the citizens of Georgia do not have adequate protection from state and local government as it pertains to their religious exercise.”

    Georgians surprised with a new problem many didn’t know we have?

  2. blakeage80 says:

    This might tie in with the recent affair in Kennesaw. If it had been a law, could this law have been used to justify the City Council’s position or would it have helped the Mosque’s cause? If it’s the latter, then it’s probably an OK law to have. If the former, then it justifies Childress’ claim.

    • Posner says:

      A RFRA would have zero impact on the Kennesaw case. What Kennesaw did was blatantly illegal under already existing laws–specifically the Religious Land Use and Institutionalized Persons Act (RLUIPA).

      • blakeage80 says:

        Are you claiming the proposed RFRA is unnecessary or harmful or both in regards to religious liberty? Your post below left me uncertain.

        • Posner says:

          A RFRA certainly isn’t “harmful” to religious liberty. But I’ve yet to see a situation where it’s necessary. None of the situations people use as examples of religious liberty being burdened by government would be changed by a RFRA.

          • John Konop says:

            Basically nobody can tell us why we need the law or how it will be used. The best answer we got was trust us it will not be implemented wrong here in Georgia. HUH? Sam Teasley and Buzz, with all the issues in Georgia do you not have anything better to do with your time? Really?

  3. Robbie says:

    I’m not really sure that adding more laws will stop lawsuits. Not to mention that the protections for the student clubs already exist – they’re same laws that allow gay-straight alliances to exist.

    What concerns many – and what seems to be conspicuously left out of Rep. Teasley’s response – would be the religious exemptions from public accommodations laws, medical needs, and current anti-discrimination ordinances passed locally. If this really isn’t an intention of the law, I would hope that Rep Teasley and Sen McKoon would include specific protections from these byproducts to ensure that this law’s true effect was only religious freedom and not discrimination.

  4. There are also many examples of where religious “principles” have become codified in law, legislation, and institutional policy, through an effort to legislate morality, but trample on an individual’s liberty.

    I would hope that the folks who are pushing RFRA understand that it’s not so much a “take back” of their religious liberty, but also a rejection of religion into public policy.

    If you want equal, that’s fine – just be sure you want what you asked for.

  5. Posner says:

    With all due respect, Rep. Teasley is simply wrong on several fronts.

    First, it’s important to understand what a RFRA actually does, and more importantly, what it doesn’t do. In Employment Division v. Smith, Justice Scalia (not exactly a liberal lion) changed the scrutiny courts apply to “neutral laws of general applicability” when faced with a religious objection from strict to “intermediate.” The case dealt basically dealt with Native American’s who wanted unemployment benefits after getting fired for smoking peyote. The Court said that even a religious reason for using peyote wasn’t sufficient because the law banning possession of peyote in Oregon was a “neutral law of general applicability.”

    In sum, a RFRA changes the standard back to strict scrutiny for “neutral laws of general applicability.” Unfortunately, neither of the examples cited by Rep. Teasley have anything to do with “neutral laws of general applicability.” In other words, a RFRA would not change the outcome in either case.

    Taking Sutton, the correct result was reached after a lawsuit was filed. This is because the law already supports the religious accommodation being sought. A RFRA will not change this.

    Turning to autopsy’s, again we aren’t faced with “neutral laws of general applicability.” Instead we’re faced with situations that involve discretion and value judgments–specifically, the value of the autopsy for crime solving (or some other compelling gov’t interest) versus the valid religious objection. Enacting a RFRA, again, will not change the outcome of this deliberation by the court. Strict scrutiny would already be applied to this situation.

    At least in the autopsy case, the better solution would be a law specifically tailored to the situation. Five states (California, Maryland, New Jersey, New York, and Ohio) have passed “Religious Objection to Autopsy” laws, protecting religious objectors from (what they view as) violations of their religious tenets.

    I have followed this issue extensively, and I have yet to hear a situation where a RFRA would have actually changed for a religious objector in Georgia. And the examples given by the bill’s sponsors are extremely troubling–either they don’t know what the law they are promoting actually does, or they are intentionally misleading people to believe that a RFRA will “solve” problems that it won’t.

    • SamTeasley says:

      We are dealing with two issues here:
      To your point of a law of general applicability, there is a lot of truth in your comments. Yes RFRA language deals with laws of general applicability. However, many abuses from a government entity (think school/university) are not acting specifically off of a certain statute. Therefore, the need to require said government entity to demonstrate that there is a compelling interest if they are going to burden someone’s free exercise of religion.

      On the issue of autopsies, there is a clear distinction between generally applicable and compelling interest. If someone dies of natural causes, most people agree that we should honor the observant Jewish family religious tradition of not disturbing the body. If however, a murder has occurred, then there is a compelling interest to examine the body. Under current GA law, if a coroner (government agent) insists on examining a body, regardless of circumstance, there is no legal guarantee that it will be stopped.

      For a couple of examples that would fit the law of general applicability standard more neatly:
      1. In Ellijay, organizers of a prayer chain were informed they would have to get a permit before being allowed to have a group of people assemble on a sidewalk for quiet prayer. The organizers filed suit challenging the city ordinance requiring a permit for 3 or more persons to engage in peaceful demonstrations on public sidewalks. The suit alleged that the permit scheme granted too much discretion to the person who issues the permit to engage in viewpoint discrimination and that the requirements for a permit for such a small number of people are unreasonable.
      2. In Philadelphia a few years ago and in Ft Lauderdale a couple of months ago, local ordinances were passed that prohibited feeding the homeless outside. People of faith in Philadelphia opposed the ordinance based on ministering to the needy being a natural extension of their faith. Since PA has a state RFRA, the ordinance was overturned. Less than two months ago, a 90 year old man and two ministers were arrested for feeding the homeless outside due to a similar ordinance. Since FLA has a state RFRA, I imagine that ordinance (law of general applicability) will have difficulty standing up in court.
      http://m.local10.com/news/police-charge-90yearold-man-2-pastors-with-feeding-the-homeless/29510268

      • Robbie says:

        Rep Teasley,

        Before you start invoking blanket-statements on aspects of Jewish law, please be aware that autopsies are NOT absolutely forbidden in Judaism. There are many cases where an autopsy IS allowed (and even encouraged), with strict guidelines, and as pointed out by the commenter Posner, RFRA would not be the best vehicle to deal with these issues: http://www.aish.com/ci/sam/48959971.html

        • Sam Teasley says:

          Robbie, I do not purport to speak for all aspects of Jewish law, nor was I trying to make a blanket statement. I have said repeatedly that “many observant Jews” (note: not all) have deeply held beliefs about how the body is treated after death. That is why I took the time to speak with members of the Jewish faith, including a Rabbi in the metro area who said that it is a source of frustration for him in dealing with coroners.

          • Robbie says:

            Please explain why RFRA and not a “religious objection to autopsy law” would make more sense. Based on all of the comments – and your own admission that the examples you’ve cited won’t be affected by a possible RFRA – why is a RFRA a better law than one that actually has a very specific solution to a very specific problem? What are the actual problems that exist today that your bill is looking to solve?

            • Sam Teasley says:

              Because government unnecessarily burdening the free exercise of religion is not limited to religious objections for autopsies.

              Perhaps you misunderstood my earlier comments. I didn’t say that those examples wouldn’t be affected by RFRA, rather that there are cases where government is acting that doesn’t fall only under a law of general applicability. The point of RFRA, as indicated by President Clinton when he signed the federal act into law, “is to hold government to a very high level of proof before it interferes with someone’s free exercise of religion.”

              • Robbie says:

                So I’ll return to my question: Can you give me specific examples of cases here in Georgia where having a RFRA would have prevented a situation? Or, a court case that was ruled in the past against someone that could have had a different outcome if RFRA had been in place? I am not yet convinced that this is a problem that needs solving like you claim it is.

      • Posner says:

        Rep. Teasley,

        My point was that a RFRA won’t solve the issues you highlight. What lawyers are advising you otherwise? I had an excellent law and religion professor in law school I’d be happy to put you in touch with.

        The reason a RFRA doesn’t solve these issues is because those issues do not involve neutral, generally applicable laws. In other words, passing a RFRA will not “solve” the autopsy issue, as you seem to admit. (additionally, the Ellijay issue you highlight would be analyzed as a restriction on speech, not religion, and the feeding homeless outside has myraid problems, not least of which being that it’s very likely not a “neutral” law (i.e. it sounds like it was passed to address a specific situation)).

        You say that “many abuses from a government entity (think school/university) are not acting specifically off of a certain statute. Therefore, the need to require said government entity to demonstrate that there is a compelling interest if they are going to burden someone’s free exercise of religion.”

        I don’t disagree that government often infringes on religious exercise. But, our Constitution, and the Supreme Court jurisprudence interpreting the free exercise clause, actually do PRECISELY what you say we need. Specifically, the Supreme Court in 1963 (Sherbert v. Verner) interpreted the Free Exercise Clause to require that the government demonstrate government demonstrate a compelling interest before they can burden someone’s free exercise of religion. This is EXACTLY what you say we need, but it already exists!!

        The problem we have isn’t that the law doesn’t protect free exercise of religion, it’s that governments have a habit of ignoring the law. And passing more laws isn’t going to change that problem.

        • Sam Teasley says:

          “Specifically, the Supreme Court in 1963 (Sherbert v. Verner) interpreted the Free Exercise Clause to require that the government demonstrate government demonstrate a compelling interest before they can burden someone’s free exercise of religion. This is EXACTLY what you say we need, but it already exists!!”

          And this is where we disagree. The Smith decision essentially reversed Sherbert v. Verner.

          • Posner says:

            “And this is where we disagree. The Smith decision essentially reversed Sherbert v. Verner.”

            … Smith ONLY “reversed” Sherbert for “neutral laws of general applicability.” That was the actual holding in Smith, and the actual language used by Justice Scalia. There isn’t really anybody who thinks that Smith extends beyond that small area of laws.

            I’m not actually sure how you can disagree with Justice Scalia here?

          • Posner says:

            “The Smith decision essentially reversed Sherbert v. Verner”

            I mean, literally two years later the Supreme Court specifically said “The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “water[ed] … down” but “really means what it says.” (in Lukumi Babalu Aye). To quote a bit further, “a law restrictive of religious practice must advance” ‘interests of the highest order'” and must be narrowly tailored in pursuit of those interests.”

            I don’t understand how you can just not believe the Supreme Court…

            • Andrew C. Pope says:

              Posner, take it easy. He’s not a lawyer, which is the only explanation I can come up with to justify why he thinks Smith overturned Sherbert. I can’t find any legal mind of note that buys into Rep. Teasley’s line of thinking re: Supreme Court jurisprudence on this issue.

              I can’t think of a plausible situation that would necessitate this law.

              • Posner says:

                I certainly don’t fault a non-lawyer for not knowing the intricacies of first amendment jurisprudence. But, it’s not like Rep. Teasley is proposing this without advice from lawyers (such as Sen. McKoon, the Senate sponsor from last year?). Is the advise from those lawyers really that wrong?

      • Welcome to the party, be prepared to get some mud on your well shined shoes.

        1. I live in Ellijay. That is clearly a Free Speech/Assembly issue not a religious one. Nice try.

        2. You live in that fantasy where christian morality is the only definition of morality. Those people did it for the homeless, not for god or jesus or church. May come as a shock, but good deeds are not dolled out because of our religious upbringing, but rather as a backlash AGAINST our religious upbringing. Thinking you can’t have “Good” Without “God” is just playing cosmic Scrabble.

        In other words, it is arguable that neither of those examples defend your position.

        Yes sir, you and your gang of Poor Oppressed Majority pass that bill. I’ll have a satanic statue right next to any religious idols at the Citizens Dome before you can Hail a MaryCab.

        Hail Satan, sir. You live in a bubble and an echo chamber.

  6. This to me is skirting the issue of sexual orientation as a protected class. Should it be a protected class here in Georgia? If we could figure that out, we could go without paying a ton of lawyer fees, and gnashing of teeth.

  7. Sam Teasley says:

    Well, I need to get back to my “day job,” but I wanted to leave here for public consumption the language that the House bill will be using- from the 1993 RFRA Statute:

    http://www.law.cornell.edu/uscode/text/42/2000bb-1

    Please remember that this protection is afforded to 30 other states and every one that borders us. Pennsylvania, Connecticut, and Illinois also have a basic state RFRA (like I am proposing). Then-State Senator Barack Obama voted for it when it was before the Illinois legislature. This is a modest proposal to require government to demonstrate that is has a compelling reason if it interferes with someone’s free exercise of religion. A balancing test of sorts. This language has a long legislative history without any record of it being used to discriminate. It’s time we afforded the citizens of Georgia the same protections that 30 other states have seen fit to give theirs.

    • Posner says:

      I will say that my biggest problem with last year’s bill (the senate version I believe is the one I read most) was that is added all sorts of ancillary language that was found nowhere in the federal RFRA.

      I don’t have a problem, personally, with passing the exact same language as the federal RFRA. But that’s not what was proposed last year, which is why so many people had such a big problem with it.

      • IIRC, McKoon’s final version of the bill last session was the exact same language as the federal RFRA. Teasley tells me that is what he will introduce in the upcoming session, and I believe McKoon will as well.

        So it looks like we have your support then? 🙂

        • Posner says:

          Heh. I think you’ve got better things to do than pass a solution looking for a problem.

          The final version of SB 377 that I saw (and the one posted on the website currently–LC 29 5967S) contained a whole lot more than the Federal RFRA. For starters, SB 377 was 88 lines long, the Federal version is 13.

            • Posner says:

              The part that matters (Sec. 3, what Rep Teasley linked) is 13 lines. And it directly tracks Sherbert–“Government may substantially burden a person’s exercise of religion only if it. . . is in furtherance of a compelling governmental interest [and] is the least restrictive means.” In other words, strict scrutiny.

              On the other hand, what the heck is a “compelling governmental interest[] of the highest order,” which is what SB 377 requires. It’s clearly different that a compelling governmental interest, otherwise we would have just used that phrase. Instead we devote an entire section of the bill to laying out that it must be “of the highest order.” (lines 58-68).

              Where did that language even come from, and what does it mean? Nobody knows, because the phrase “compelling governmental interest of the highest order” has literally only appeared in four cases, ever (according to Lexis as of 5 minutes ago). The most recent of those cases was from 2001, and none of them had anything to do with the Free Exercise Clause.

  8. Another made up issue for the Republicans to tackle and for the Democrats to look weird opposing to the “median” voter. In other words, par for the course since they took over.

    • Posner says:

      I’ve read it. It doesn’t give any examples of why a state RFRA is needed. Literally doesn’t cite a single case that would have had a different outcome with a state RFRA.

      Except, obviously, Native Americans can smoke peyote and get unemployment benefits. (does anyone else find this an ironic outcome from a state that wants to drug test welfare recipients?)

  9. Josh McKoon says:

    My favorite passage from aforementioned letter:

    “Some government officials feel like they have no obligation to make religious accommodations, so they don’t even have to talk to religious groups or individuals seeking them. By forcing state officials to consider burdens on the exercise of religion, a state RFRA opens the door for discussion. These issues can often be worked out informally if people will just talk to each other in good faith. A state RFRA—Senate Bill 377—would help make that happen.”

    • Posner says:

      Why, exactly, is this your favorite passage? Because it’s blatant pandering? Because it hits lots of talking points without actually saying anything?

      “By forcing state officials to consider burdens on the exercise of religion, a state RFRA opens the door for discussion”

      Right, because the United States Constitution, which guarantees the free exercise of religion, isn’t enough impetus on it’s own to force state officials to consider the burdens on religion of their actions. It is borderline ridiculous to suggest that if the Constitution isn’t enough persuasion to stop government officials from violating their citizens free exercise of religion, that passing a RFRA will somehow prevent all these egregious instances of government burdening religious exercise.

      “These issues can often be worked out informally if people will just talk to each other in good faith.”

      Yes, I’m sure it’s true that many issues can be worked out informally if parties sit down to talk. But it’s a total non sequitur to suggest that passing a new state law will somehow cause happiness and compromise.

  10. It is against my personal religion, and a mortal sin to worship any object, especially one that is a facsimile of a torture device. Please remove all crosses from public areas.

    They glorify terrorism, and we must protect our children from such emblems of pain.

    or I’ll sue the state.

    • Lea Thrace says:

      Yep!!! Seriously, it’s like our legislature has NOTHING else to do but spend time on STUPID endeavors that will only cause more problems down the road. I am particularly disappointed in Sen. McKoon’s participation in this exercise. I really thought he was one of the more level headed members of the legislature. Same with Buzz. My fault for assuming I suppose.

      • Three Jack says:

        Summed up well John. The GOP has become quite proficient at introducing diversionary issues to avoid scrutiny of their failed tenure as the majority in this state. For example, tax reform has yet to be addressed and likely won’t be for a few more sessions according to the speaker in a recent interview. More study needed, blah, blah, blah.

        Stale, pale males still in charge of a government they are incapable of leading based on their cumulative record.

  11. PegM says:

    I may be missing something or not understanding what I read (most likely) but does this mean that a Muslim who kills his wife because someone raped her, is free from murder charges because it’s his religious belief? I’m just asking……

    • Posner says:

      No.

      Preventing murder is a compelling government interest. This is part of the reason why a RFRA is a poor vehicle for solving the Orthodox Jewish autopsy issue (there is often a compelling interest in conducting the autopsy to solve the murder).

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