In the 2015 Georgia legislative session, Rep. Sam Teasley and Sen. Josh McKoon are expected to reintroduce the Preservation of Religious Freedom Act. In 2014, Teasley’s version failed to get out of committee, while McKoon’s bill died on Crossover Day without having a vote in the full Senate. Both McKoon and Teasley vowed to try again in 2015, saying they would spend the summer and fall educating fellow legislators and the general public about the need for and benefits of their bills.
As the summer progressed into fall, there were early warning signs that opposition to the bill remained strong. The week before Christmas, Trey Childress wrote lawmakers on behalf of an organization called Competitive Georgia, warning them that passing the Preservation of Religious Freedom Act would pose a “real risk to Georgia’s economy and business reputation.”
In his letter, Childress states
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.
This reasoning was adopted by others, who wondered why, with the First Amendment’s protection of the freedom of religion, a separate bill would be needed. Others wondered whether specific issues, such as whether autopsies should be performed on observant Jews after death, should be considered in separate, standalone measures.
Actually, there is a compelling reason for passing Georgia’s version of the federal RFRA. In a story published in the Marietta Daily Journal this weekend, Rep. Teasley described the reason without clarifying the point:
Before 1990, if an individual thought the government was infringing upon their right to freedom of religion, they could sue, and in court, the burden was on the government to prove it had a good reason for the infringement. A 1990 Supreme Court decision shifted that burden onto the individual, however, meaning the citizen had to prove in court that their rights were being denied.
Then, a 1993 federal law called the Religious Freedom Restoration Act shifted the burden back to the government, requiring the government provide a compelling state interest if it infringes upon a person’s religious freedom, but a 1997 Supreme Court decision resulted in the law not being applicable at the state level.
Let’s consider that a moment.
The Constitution was written as a charter of what President Obama has called “Negative Liberties.” In essence, rather than describing what the federal government can do, it limits the government to a specific list of things it is permitted to do, with most of the power remaining with the states or with the people.
Under the original interpretation of the Constitution, the government couldn’t interfere with a person’s religious freedom without establishing that the interference was a compelling government interest, and used the least restrictive method of limiting that freedom. In 1990, the Supreme Court decided the case of Employment Division vs. Smith, which had the effect of forcing someone who felt their religious freedom had been violated by the government to have to prove it before a court, as opposed to the government having to show why the religious infringement was necessary.
Putting the burden of proof on the individual rather than the government meant that the government could define the limits of religious freedom, which is the opposite of the concept of negative liberty cherished by the Founding Fathers.
To put the burden of proof back on government, Congress passed the Religious Freedom Restoration Act in 1993 with unanimous support in the House, and the support of 97 Senators. It was signed into law by President Clinton.
As it stands now, the Georgia General Assembly could pass a law infringing on the religious rights of an individual or a group, and the burden of proof would be on those who thought their rights were infringed to define why their religious rights were being limited, rather than the government having to prove why the law needed to infringe on religious liberty and to show how it was written to provide as few restrictions as practically possible.
Passing the Preservation of Religious Freedom Act won’t automatically unleash a parade of horribles because it doesn’t grant any additional rights to those who feel their religious liberty has been infringed. Instead, it simply affirms the classical liberal position of rights belonging to the people, not granted by the state.