An Argument For Passage of Georgia’s Preservation of Religious Freedom Act

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.

54 comments

  1. This whole thing is entirely too technical to be usable by anyone except lawyers defending folks whose rights are already in tact.

    To me, it’s a legal solution written by a lawyer, to drum up more legal services in areas that should not be litigated.

    If we really want to make this bill about religious freedom, we need to also make sexual orientation a protected class, since that’s a topic ripe for abuse by defendants perverting their own religion in order to justify bigotry. And the lawyers are happy to take their money to do it.

    • Josh McKoon says:

      Lowered Expectations,

      It is of course “usable” and should act to reduce litigation in this area, as it will make government entities more wary of enacting and implementing laws that burden the right of free exercise.

      In the 20 plus year history of the RFRA law, it has never been interpreted by a court to protect “defendants perverting their own religion in order to justify bigotry” — there is zero evidence to support a position to the contrary.

        • Josh McKoon says:

          I do practice general civil litigation. I have never handled a religious liberty case. If you are honestly suggesting I have spent the last year toiling to see this bill move forward so that a lawyer somewhere can get paid filing a lawsuit at some point in the indefinite future you need to talk to some folks that know me.

            • barstool69 says:

              I’m on your side as far as the bill goes, but the particular argument you’re pushing lacks a basic understanding of the economics of practicing law.

              • John Konop says:

                Hypothetical, a political whoring and munipulating group anti gays……does a fund raising campaign…….we all see the fund raising campaigns from the right and left on the BS non core hot button issue of the day….Send them money or all hell will break out….blah,blah…..we will file a lawsuit…..like this has never happened lol… They hire a Lawyer…..it is paid by poor schmucks not getting guys like Senator Mckoon are just using them for politics and or money….it is all a game of BS….while real issues never get solved….McKoon is just acting like an another Jessie Jackson pimping the system…..You are a lawyer…..can anyone coherently explain any real use of this law….I am not a lawyer, like most on this thread from right and left we cannot understand the lawyer sponser Mckoon answers, it make no sense….Bs is Bs…..

      • Its completely technical to the point no one actually knows how this law affects them without a law degree.

        Furthermore, can you tell me in two sentences how this law would protect me from Christians who want to condemn a gays way of life?

        Perhaps the benefit means a great deal, but I don’t understand the applications. Mostly because I’m not a lawyer.

        Why don’t you just call it reinstating the sherbet test. It would still be just as abstract.

      • I also can’t for the life of me find one example where rfra has preserved religious freedoms.

        But I am learning and will take all of this into prayerful consideration, since just because I don’t get it, doesn’t make it wrong.

  2. xdog says:

    The proposed bills aim to codify Jim Crow laws for gays. Business’ opposition recognizes that fact. I’d be interested in hearing Tanksley’s and McKoon’s views on Low/Ex’s suggestion to make sexual orientation a protected class. For that matter, I’d like to hear what they have to say about protecting peyote usage in religious ceremonies.

      • xdog says:

        You got me, Joash. Nowhere in either bill is there specific language saying that the intent is to give legal cover to those who wish to discriminate against a particular class of citizen.

        • Josh McKoon says:

          It is as absurd as it is offensive to compare a law designed to protect people of faith from government action that would trample their First Amendment right of free exercise to repulsive laws that discriminated against people on the basis of their race.

          I will state it again here, RFRA has NEVER been interpreted to protect/shield someone from an act of discrimination.

          The law has a case history of over 20 years — if opponents had a sliver of evidence that the law had ever been used in the bizarre manner they have described, don’t you think someone would have given us an example by now?

          • John Konop says:

            LOL……you have no idea why we need the law other than to create lawsuits your profession gets paid on….yet you want the law…LOL….Only a lawyer wins on this bill….Lawyers love laws that create litigation….LOL….as they always say the only sure winners in a lawsuit are you guys the LAWYERS…. seriously do you not have a conflict of interest? With Georgia ethic rules or lack of tough rules….I guess it does not matter…We have a real issues that need ADULT attention…I guess being a lawyer you could careless…

          • xdog says:

            Sen. McKoon, the clear intent of the bill is to give legal cover to those who are fearful of homosexuals and wish to have nothing to do with them. That’s the basis of the business community’s opposition to your bill and it’s the basis of mine. I don’t think it’s offensive to point out that your bill would give authority to bigots and mischief-makers.

            Your argument about the federal RFRA not being used to shield someone from discrimination doesn’t apply. These are different times. Attitudes and laws have changed. Your bill would open the door to contentious state suits from those who aren’t comfortable with those changes. I’d go so far as to say there would be outside groups vying to fund those suits.

            Finally, a question: What problems do you propose to solve with your legislation that existing law doesn’t handle?

          • mrath says:

            Last week Rep. Teasley told a MDJ reporter, ““The original language of the bill has been changed to be almost directly word for word the federal statute.”
            OK.
            Here are two simple questions: What isn’t “word for word,” and why?

  3. smvaughn says:

    Some might say I’m being pedantic, but I think the premise of this position is flawed. It’s not true that “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.” That interpretation of the 1st Amendment didn’t come around until about 1960.

    Prior to then, it was the case that religious objectors only got exemptions if the statute specifically provided for one. Put another way, prior to 1960 it was not believed that the Free Exercise Clause granted religious objectors immunity from laws of general applicability. To the contrary, they got no exceptions unless the legislature stated so in the statute at issue. The genesis of this was Reynolds v. US in 1878.

    This view prevailed until the early 1960s, which is when SCOTUS first considered the idea that the Free Exercise clause might require exemptions as a constitutional matter, a view that it adopted in 1963 in Sherbert v. Verner. Then in the 1990 decision that Teasley referenced, SCOTUS essentially went back to the view taken pre-Sherbert (i.e., back to the Reynolds approach). Here’s a law review article that lays this history out as succinctly as is possible: http://www.law.northwestern.edu/journals/lawreview/v102/n3/1189/LR102n3Krotoszynski.pdf?origin=publication_detail

    I don’t really have a dog in this fight, but if your goal is affirm “the classical position,” then you probably should be against this bill.

    • Max Power says:

      You are correct. Under the original interpretation of the Constitution the federal government could interfere in the free exercise in a number of ways, see Reynolds v US. Furthermore, the state governments were under no first Amendment prohibition until the Bill of Rights began to be incorporated via the 14th Amendment. As Lowered Expectations said this is a highly technical issue and the supporters of this law seem to be using the public’s lack of knowledge to push for its passage.

  4. therightdirection says:

    Nice post, Jon.

    I find it ironic that the argument: “One wonders why they cannot name specifically the problems to be addressed” can be turned right back around on the accusers.

    Over a majority? of states and the federal government have this law. It’s been on the books over 20 years. How about they come up with some instances where it has caused trouble or been used unfairly?

    This is a good law, so it doesn’t surprise me that certain people are up in arms about it.

    • benevolus says:

      If we just continue to accept laws that have no discernible purpose then we deserve all the corruption and cronyism we get.

      • Josh McKoon says:

        “No discernible purpose”

        How about providing a critical protection of the right of free exercise? Is that not sufficient reason to pass a bill in the Georgia General Assembly?

  5. Posner says:

    This post is just blatantly wrong on the law. I honestly expected better researched articles from you Jon.

    For starters, Smith had absolutely zero to do with the “burden of proof,” rather it addressed the “standard of review” for a VERY SPECIFIC subset of types of cases (neutral, generally applicable laws). Smith changed the “standard of review” for those cases, but DID NOT TOUCH the burden of proof, which STILL RESTS ON THE GOVERNMENT.

    Bottom line, Rep. Teasley and Rep. McKoon (a lawyer no less) are being deliberately misleading because they know the public doesn’t understand the issue, and they know that the facts about what the Smith case actually does are far more benign than they wish they were.

    Honestly, one would get a better education on these cases from reading their wikipedia entries, which it appears that nobody posting on this topic here has bothered to do.

    • Josh McKoon says:

      Posner,

      This bill is about shifting the standard in these cases from “rational basis” to “strict scrutiny” — I am not aware of anyone representing it in any other terms that is advocating for the bill.

      Shifting the standard demonstrably increases the burden for the government to prevail in a case challenging an act that burdens the right of free exercise.

      This legislation has been of great aid to people challenging government overreach that burdens the right of free exercise all over this country. No one has yet to make an argument as to why Georgia would be any different or why Georgians should receive second class protection of their right of free exercise.

      • John Konop says:

        ……This legislation has been of great aid to people challenging government overreach that burdens the right of free exercise all over this country….

        Other words you created a law you can make money on….

      • Posner says:

        But, the standard in religious liberty cases is ALREADY strict scrutiny. The ONLY time it’s not is if it’s a neutral, generally applicable law (the holding of the Smith case). The Supreme Court confirmed two years after the Smith case (in Lukemi) that strict scrutiny applied to cases EXCEPT neutral, generally applicable laws.

        You guys keep talking as if ALL religious accommodations are judged based on a rational basis review. That’s just absurd!

        You say it’s been of great aid to people challenging religious overreach. Where? Nobody can cite an example of a case where a RFRA made a difference (because every example people give has nothing to do with a neutral, generally applicable law). Even the law professors you got a letter from admit that use (and need for) of RFRAs is extremely rare–and even they don’t cite an example of a case using a RFRA as the deciding standard.

        Going through EVERY example that has been cited on this site–jewish burial, Kennesaw mosque, prayer group at Sutton, etc.–none of them are subject to different outcomes under a RFRA.

        What neutral, generally applicable law in Georgia is causing all these problems with religious accommodations? And why don’t we change that law (after we identify it)?

        • Andrew C. Pope says:

          I can say, with Con Law I & II still somewhat fresh in my head, that Posner is right with this one. I researched some of the state laws this law is being based on for a State Con Law course back in law school, if I can dig it out of the archives I’d be more than happy to post it or link to it. I can tell you that there weren’t any cases I could find in which the state law produced a different result than under an RFRA action. I can also tell you that the argument of “other states have this law, why shouldn’t we?” isn’t the best approach for justifying this law. State RFA’s are merely duplicitous of federal legislation and don’t do anything of substance or offer different/additional protections.

          Sen. McKoon, with all due respect, you’re either misleading folks on what the law is in this area and how this state law would operate OR you don’t understand how the law in this area operates. Either way, I think you’re doing a disservice to people by pushing this thing as a legal necessity.

            • Will Durant says:

              Sorry Senator but I do find your motives in seeking this bill to be duplicitous when there are so many more pressing civil liberty issues facing this state. How about addressing the rights of citizens that are being trampled more often and overtly? The weakest protections on civil forfeiture in the nation, abuse of no-knock warrants, misdemeanor private probation contracts that can be obtained without competitive bidding or public oversight… Just because you are of a particular religion should not make you a privileged class either.

              • Josh McKoon says:

                One of the more intellectually dishonest arguments against any legislation is “we can’t do this because X is so much more important.” Obviously the legislature acts on many bills every year. It is possible to deal with civil forfeiture and religious liberty during the 2015 session. And a society that doesn’t have robust protection of religious liberty for all will find other freedoms, perhaps ones you deem more important, threatened right alongside it.

                • John Konop says:

                  Josh,

                  The case you cited was to give rights to a cathlic church to overide local zoning rules. I guess you are doing this to give more rights to local Muslims in Cobb county who had thier place of worship denied via zoning rules? Somehow your law gives them better protection for thier case?

                • Will Durant says:

                  Obviously the legislature also fails to act on many bills every year that have more merit than those passed. In this case we not only have an X, but Y, Z, and could utilize the rest of the alphabet on bills that should have priorities over your proposed bill. You have yet to cite a single instance of where it would have made a difference in a Georgia case. There are thousands of cases totaling millions of dollars every year involving civil forfeiture of property here in Georgia. So this is just one bill as an example that it’s not my presumption of importance but the preponderance of actual evidence ranking what the legislature should be spending its limited time upon.

                  I’ve only chosen this one because it is a bill attempting to address valid individual rights that are being infringed upon today and has not passed now for at least 3 sessions. I don’t even see it as the number one concern for this session but it certainly ranks above another useless piece of “red meat”. This isn’t even an election year. We endured this kind of shinola last year with passage of drug testing legislation that ran counter to federal code in the case of food stamps and common sense to actual fiscal conservatives who can think for themselves in the case of other welfare benefits. I know the current voting majority has to be catered to by you guys but can we at least give this a rest in an off-year and work on more substantive legislation?

                  • Josh McKoon says:

                    Will,

                    Let me take your second paragraph first — I do not author legislation that is useless “red meat” as you put it. In fact if you look at my voting record I spoke and voted against the food stamp bill you mentioned precisely because it could not be implemented and was nothing more than campaign tripe.

                    There are many cases I have cited in the speeches I have given on this topic. If you are interested to hear some of those cases detailed click this link:

                    https://www.youtube.com/watch?v=vKijyglYcs0

                    Protecting the free exercise right of all Georgians against state and local government infringement, something 31 other states and the federal government have taken action to do, is meaningful public policy and something we should frankly quickly act on.

                    • John Konop says:

                      Josh,

                      You claim this all about “protecting the free exercise right of all Georgians”? Your bill is designed to help build the mosque, right?

                      Federal lawsuit filed over Kennesaw mosque

                      ……..Tuesday in federal court in Atlanta the lawsuit was filed. Group’s lawyer, Doug Dillard, assures that it’s a protective legal action that protects the rights of his clients. Although procedural and a short lived action, Dillard says it’s needed to protect the group’s rights due to legal deadlines. The action assures his clients are able to sue in court if the city of Kennesaw reversed its decision to allow the mosque, or if legal actions blocks efforts.

                      Dillard says although the city planning and zoning administrator and commission recommended approval, the city council denied the mosque a special exception to the business zoning at 2750 Jiles Road.

                      One applicant for the mosque spoke out to say they still have a few months before the mosque is operational and he’s looking forward to when the doors can be open to worshippers. The building was attractive due to its location and that it was priced low, but also it being centrally located to their worshippers was a benefit……..

                      http://www.examiner.com/article/federal-lawsuit-filed-over-kennesaw-mosque

  6. Jon Richards says:

    I have no problem saying mea culpa for some of the inaccuracies in my post. I did take the basis for my reasoning from the interview Sam Teasley did with the MDJ, quoted above, and as Posner pointed out, his statement that “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.” is perhaps overly broad. And I assumed that the strict scrutiny provision existed before the early ’60s a point well clarified by smvaughn.

    I’m not a lawyer, and I very much appreciate the watchful eyes of our commenters, as well as the link to the law review article, which I looked at briefly, but plan to read in its entirety.

    • Josh McKoon says:

      Jon,

      Semantics aside, under a “rational basis” analysis the government can proffer just about any reason to satisfy the court that the regulation or act may stand against a religious liberty objection, while under a “strict scrutiny” analysis the government has a much larger burden to prove the reason they offer is a “compelling state interest” — so in that sense the burden of proof changes along with the standard.

        • Jon Richards says:

          John,

          I think you are overreacting here. I get it. You think Josh is pushing this mini-RFRA simply so he (or lawyers in general) can make money on lawsuits filed by aggrieved believers.

          I obviously can’t read Josh’s mind, but I don’t think he’s acting as a shill for the trial lawyers’ bar. And I don’t think you need to make that point every time he tries to clarify his position within this post.

          Is it important to pass a mini-RFRA here in Georgia? That’s an open question, and one I welcome see being discussed here on Peach Pundit. It’s the reason I wrote this post. Let’s hear the legal arguments, read the background briefs, and discuss whether strict scrutiny or general applicability is a better standard to use when deciding whether religious rights have been infringed.

          What disappoints me is your ad-hominem attacks on Josh. They are uncalled for. And I say that noting that I normally respect and appreciate your comments here.

            • Ghost of William F. Buckley says:

              Thank you, John!

              Senator McKoon if you read this comment, STICK TO ETHICS.

              Other than Corporate America pretty much telling you to GO FISH, I loathe another Senate philosophical tour of the Constitution while so MANY PROBLEMS with real identifiable solutions go unanswered.

              Why are there so many pawn shops around military bases preying on young soldiers with little skill on financial planning?
              Why does DELTA get a multi-million dollar gift?
              Hell, why are we still paying for Tarbutton’s railroad? (Dig deep on that one, it’s a doozie.)

              I don’t think you are looking for future billable hours, I do think you seek a solution to a Constitutional question that needs not an answer. You cannot explain this to anyone outside of inside baseball. #DOOM

  7. Harry says:

    Homosexuals are not a protected class. Good luck trying to get that one through Congress. In addition to religious objections, there is the public health issue. Although homosexuals should be shown love not ostracized from society, nonetheless homosexuality should not be considered a normal “lifestyle choice” but rather is a basic physical and emotional health issue, and yes it affects the greater community. Those who express their honest opinions and personal business decisions in opposition to this “lifestyle choice” should not be required to assert the burden of proof in order to avoid sanctions by the legal system. That would be despotic.

    • John Konop says:

      Harry,

      Senator Mckoon is playing you like a fiddle…..you are way smarter not to get he is playing you……The social conservatives like you should be even more upset…..this is total BS….They will use this to fund raise and pick your pockets…..and at the end it is just a game…..read Mckoon answer no real substance….ask any objective lawyer….this is a bad joke!

    • And those same people should not claim it’s a religious belief to ” [oppose]… this “lifestyle choice…”

      Because it’s not a religious belief. No more than being gay is a lifestyle choice or a public health issue.

      • Harry says:

        On the day in 1974 when Soviet secret police arrested him for treason, Alexander Solzhenitsyn published an essay (via the underground samizdat press) entitled “Live Not by Lies”. It ended with a commandment in capital letters: “DON’T LIE! DON’T PARTICIPATE IN LIES, DON’T SUPPORT A LIE!”

        The lie, wrote the author of “The Gulag Archipelago”, had become “a mode of existence” in the USSR, “incorporated into the state system as the vital link holding everything together.”

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