Legal Scholars Express Concerns Over Proposed Religious Freedom Bill

A group of 18 legal scholars, mostly professors of law, have written a letter objecting to the possible enactment of House Bill 29, the religious liberty bill sponsored by Rep. Sam Teasley. The letter is dated January 21st, and was sent to Rep. Teasley, along with Governor Nathan Deal, Lt. Governor Casey Cagle, House Speaker David Ralston, Senate President Pro Tempore David Shafer, and Senator Josh McKoon.

From the letter:

We understand that the Georgia General Assembly is now actively considering a religious freedom bill, House Bill 29, under the title of “Preventing Government Overreach on Religious Expression Act.” The signatories of this letter are legal scholars, with expertise in matters of religious freedom, civil rights, and the interaction between those fields. We do not agree among ourselves on whether religious freedom legislation, which may vary in its terms, is generally good. For reasons we explain below, however, we all emphatically agree that HB 29, as currently drafted, should not be enacted without significant revision.

Here is our message, in simple terms–the timing and broad content of the Bill will invite and legitimate discrimination. The Bill, if enacted, will send a powerful message that religiously-­based refusals to provide equal treatment to particular classes of employees, customers, and persons seeking public service are legally superior to any legal prohibitions on invidious discrimination.

The letter goes on to describe in detail the authors’ reasoning for why they believe HB 29 would potentially allow for discrimination against classes of people, potentially violating laws mandating equal protection. In addition to familiar arguments over whether a bakery could refuse to serve a same-sex couple on religious grounds, the authors cite the possibility that a claim under the bill could override the civil rights and guarantee of equal protection that should be enjoyed by all people, and how one interpretation of the law could violate the First Amendment’s establishment clause.

The authors suggest several modifications to the bill that would resolve their concerns:

HB 29 can be revised to eliminate the risk that it will support invidious discrimination. The ways to eliminate these terrible possibilities from the operation of HB 29 are straightforward. First, the Bill should explicitly exclude for‐profit business entities from the class of “persons” whose religious exercise is protected. Second, the Bill should explicitly say that it does not apply to any law–-federal, state, or local-­‐designed to protect the people of Georgia against discrimination, in any sphere of social or economic life, based on race, religion, national origin, sex, disability, age, marital or familial status, gender identity, or sexual orientation.

The letter concludes with this:

HB 29 is unnecessary to protect freedom of belief and worship in Georgia. The state constitution already protects each person’s “natural and inalienable right to worship God, each according to the dictates of that person’s own conscience.” In its current form, HB 29 is potentially quite harmful to the legal and business culture of Georgia. It might be interpreted to “justify practices inconsistent with the peace and safety of the state.” HB 29 would permit the religious beliefs of some Georgians to deprive others of their equal rights to participate in the state’s economic and social life. In its current form, we strongly urge you to reject it.

The entire ten page letter is below the fold.

Download (PDF, 133KB)

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49 comments

  1. Harry says:

    These “legal scholars” need to realize that homosexuality, bestiality, pedophilia, bigamy etc. are not mandated protected classes. House Bill 20 is thus not at all inconsistent with legal precedent and will serve to protect citizens and businesses against frivolous lawsuits and agenda-driven judges.

    • Michael Silver says:

      They are nothing but agenda driven fools with fancy titles.

      These statists are advocating that the government can use its powers, including violence, to force someone or a business to do something in opposition of their faith or to their faith’s detriment.

      For example:

      a) A kosher baker would have to make a bacon cheesecake. (which does sound good BTW)
      b) A Jewish baker would have to make a cake for a member of the religion of peace ™ with a quote from the koran on it. Perhaps (2:191): “And kill them wherever you find them” or a birthday cake for mohammed.

      I expect this bill to have a tough road going forward. Gov. Deal and A.G. Olens have already taken the position in court that the government can control everything a religion does. If the government wants to ban Communion, it has the power to do so.**

      ** The case was GeorgiaCarry.Org v. State of Georgia and was regarding the carry ban in places of worship. I should note that the ban written by white segregationists.

      • John Konop says:

        Senator/lawyer/ sponser of the bill 29, Josh Mckoon was clear if done for religious reasons gay people can get married. I even asked on a thread does it protect radical Muslim religions…Mckoon was clear, his bill protects any religion. If a gay couple claims they are marrying for religious reasons according to Josh Mckoon they are protected by his bill….If not Josh can claify his past statements….

        As a non lawyer, I even figured out this would be a lawyers dream, and for party fund raisers on both sides of the issue…The politicians win when gut politics laws are muddy with issues….it is clear, this is creating more legal issues not less….the joke is on you….I told you before, you are being played….

      • Robbie says:

        Michael Silver – You are completely incorrect on the kosher bakery part. If a business never makes a cake with bacon – for anyone, at any time – it would not have to do so for someone even if they wanted it. Nor would a kosher or halal caterer be forced to provide someone a meal with pork in it.

        If, though, a bakery make a bacon cake and keeps it on their menu, they cannot decide who gets to buy it and who doesn’t. That’s the issue.

        • Harry says:

          Robbie, you need to understand that homosexuals are not a protected class, therefore they can be refused service for any reason.

            • Harry says:

              Heretofore protected class designation was legislated at the federal level.
              http://www.crateandbarrel.com/Stores/shops-around-lenox/str851

              Designation of a protected class from discrimination is a serious matter which impinges on personal rights of some while protecting others. Atlanta/Fulton/Dekalb may be facing future legal challenges in addition to the one resulting from the matter of removing the fire commissioner for expressing his personal opinions off the job.

                • Andrew C. Pope says:

                  Harry, you can keep sticking your fingers in your ears and screaming “not a protected class” until the cows come home. However, the trend established by SCOTUS in Romer, Lawrence, and now Windsor is that homosexuals are just as deserving of equal protection under the law. My prediction is that this case will settle that issue once and for all.

                  You’re fighting a losing battle, Harry. Best of luck to you in your doomed endeavor.

                  • Harry says:

                    At least 85% of the world population sees it my way. Best of luck in coming to terms with a cohort who are procreating faster than you are.

                • DavidTC says:

                  Harry, you’re an idiot.

                  A *Federal* protected class is designed by *Federal* law, and it’s a violation of *Federal* law to discriminate against them.

                  There are also *state and local* laws about discrimination, which have nothing to at all to do with the Federal protected classes. There are, in fact, quite a few places that forbid discrimination against homosexuals. Including some in Georgia.

                  You appear to be completely unaware of how laws work.

        • Michael Silver says:

          Robbie, I’m pointing out that the “civil rights commissions” and courts are saying a business’ religious beliefs are not protected when in conflict with a public demand. In fact, the commissions are going further than that and say business don’t even have free speech rights. Under these decisions, a Kosher bakery can not claim 1st Amendment protection for not serving bacon cheesecake nor can a Muslim bakery deny my request to make a cake with an unflattering image of Mohamed.

          This issue is all about limits of government control. The statists want government to decide what is acceptable thought and belief and require compliance with that standard. Violators need to be re-educated with forced “sensitivity training”, compliance record keeping, and fines large enough to bankrupt violators.

          • Robbie says:

            Michael,

            It’s not a matter of the first amendment. If a business doesn’t sell a product you can’t go in demanding they do. If I walk into a video game store demanding that they sell me balloons I have no case, and it has nothing to do with the first amendment. If, however, the video game store does sell balloons, they can’t decide which people they want to have as customers. Similarly, a kosher bakery that never, ever uses bacon cannot be forced to use it. A business can’t be forced to sell you something they don’t actually sell.

            • John Konop says:

              Senator/lawyer bill sponsor Josh Mckoon may disagree….Josh claims if you feel it is part of your religion, under his bill you legally can demand it or get a lawyer…I pointed out to Sen Josh it seems like a lawyers dream, and for fundraising via the self created clouds by Mckoon….And it seems other lawyers agree McKoon is creating a massive cloud of issues..,Which will be great for fund raising….and not getting anything done…

              • Jon Richards says:

                Um, where did you come up with that, John? Under the bill, someone can go to court if they think government is interfering with their religious beliefs. They may or may not get the relief they are seeking, but they will have their day in court.

                Nowhere does it say that one person can force his or her beliefs on another.

                • John Konop says:

                  The case Senator/lawyer McKoon sited was a case in Florida that wanted to build a church without proper parking and building requirements…The church is forcing everyone in the community to change rules on building styles as well as taking away parking from other businesses and home owners that had to meet requirements. It was very clear Mckoon claimed that his bill protected the church to have their right to force thier relgion to the point it may put people out of business, hurt realestate values…..I even asked Josh if this was right for any religion…..radical Muslims….he said yes. Logically if Josh is telling the truth than a gay couple could get married based on religon reasons…If true, for religious reasons one could deny service to gays, Cathlics, blacks…..for religious reasons….If you follow Mckoon logic his bill would allow us to declare our businesses as place of worship and avoid taxes….I merely pointed out that this seems like a hornet nest of law suites….As this post pointed out….Josh could clear it all up with a tighter bill….I am sure as a smart lawyer Mckoon knows this….the real question is why would a politician lawyer do this ?

                  Btw numerous people have posted comments supporting no service to gays as protected by his bill……and Josh has not disagreed…

    • Rick Day says:

      Everything you listed is already illegal. Are you insinuating that gays are pedophiles (statistics say otherwise) and, er, bigamists? Everything you listed is an activity by people, not “a person”. Activities are not protected classes, people are.

      You really are getting scary, Harry. You got a mighty fear against the gays and whoever put that fear in you should roast in the Sahara. Nobody wants your stupid religion. Quit acting like we are about to enact a coliseum of christian eating lions. It is childish and shrill.

  2. saltycracker says:

    How will this effect my cracker belief:
    Men: no shoes, no shirt, no service
    Women: no shoes, no shirt, free beer

      • saltycracker says:

        🙂 true, but how does having a business license make it ok for the community to tell me who I must do business with unless, perhaps, my business is a monopoly.
        Stupid business rules also give you the right to fail.

  3. Rick Day says:

    I am so for this legislation. I want it to pass. I want it to be the stake driven into the evangelical blood suckers meddling of my secular country. Begone, Christers! Before the commie, fascist, pinko gay lib-ur-turd Debilcrats make a FEMA farmer outta you!

    If you only knew how foolish you all look…..

    • David C says:

      I really had to laugh at the fellows at the “March for Life” coming down the street with signs proclaiming “I support religious liberty” on the way to the Capitol to make sure the House enforces their church’s opinion on when life begins on the rest of us.

  4. Andrew C. Pope says:

    Can someone tell me the part in the Bible where Jesus told his followers to not bake cakes for gay weddings? I look around and the only think I see being taken away from Christians is their “right” to be a jerk to people because of that person’s sexual orientation, political beliefs, religious beliefs, etc. How about we just all embrace the Southern hospitality we’re supposed to be known for and stop worrying about other people’s personal choices.

    • Harry says:

      That’s great, but don’t try to get a judge to legislate from the bench your “morality” and behavior. Leave us our religious beliefs. Again, homosexuals are not a protected class, and ought not be because weakness of spirit shouldn’t be cultivated and encouraged – whether genetic or learned.

      • Andrew C. Pope says:

        I’m aware of that, salty. I’m just not seeing the part of the Bible where I’m supposed to deny services or equal treatment to homosexuals. The Jesus I hear about every Sunday message is more directly centered on not judging and condemning others. You know, don’t worry about splinters in other people’s eyes, don’t throw the first stone, etc. I’m pretty sure Jesus would bake a cake for a gay couple’s wedding. At the very least, he’d turn their water into wine.

        Harry, why am I not allowed to “legislate morality” when your side has a ban on same sex marriage solely because it conflicts with one group’s moral code? No one on the pro-gay marriage side of the debate is trying to take away or change the rights of straight people. They just want equal treatment under the law.

        If gay people gross you out or shock your moral conscience, I suggest you 1) get a stronger stomach and 2) just avoid them. As Thumper’s mother would say: “if you don’t have something nice to say, don’t say anything at all.” If you are a baker that believes homosexuality is a sin, don’t make their wedding cake, do their flowers, or rent out your venue. Will you look like a bigoted jerk? Sure. Will you get a negative Yelp review? Yep. Will you stop their gay marriage from happening? Nope. Will you cause them to realize the sinful error of their ways and convert to a life of heteronormative behavior? Fat chance. Will the government force you to serve them? No, and anyone who tells you otherwise is a fool.

        I don’t want to legislate morality, I just want people to be nice to each other. That’s what Jesus would want, too. Being a Christian means loving people, not looking at them and casting aspersions because they don’t follow the set of rules you’ve chosen to live your life by.

        • Harry says:

          I’m glad you don’t agree with the threats and legal actions around the country directed against bakeries and photographers who don’t want to cater to gay weddings. On the other points you raise, I agree. I try to be nice to all people if they are nice to me. I know that I’m currently dealing with gays, and I’ve no problem as long as they don’t shove it in my face. Do I agree with gay marriage? No, for personal reasons I don’t and I’ll continue to oppose it as many others as well. I can’t separate my personal beliefs from my politics nor can anyone if they’re honest about it.

        • saltycracker says:

          ACP,

          So is it denying equal treatment and services if an Atlanta city employee wants to marry 25 homeless people and add them and their children to their medical and pension plan ?

          • Andrew C. Pope says:

            No, because a complete ban on plural marriages inherently constitutes equal treatment. All individuals are being equally denied the right to marry 25 homeless people. The gay marriage ban violates equal protection because it is denying a certain liberty (and the rights and benefits appurtenant to said liberty) to an identifiable class of people based on that group’s immutable characteristics.

            Harry can drone on and on about homosexuals not being a “protected class,” but Windsor, Lawrence, and Romer show that SCOTUS believes homosexuals are deserving of some special status, even if they can’t pinpoint what that status is. Even without protected status, the government still needs a rational basis for the ban on same sex marriage; something I and, more importantly, courts, don’t believe exists.

            Feel free to cook up more absurd hypotheticals, salty.

            • Lea Thrace says:

              something about animals or child marriage? Or marrying inanimate objects?

              I’m surprised those havent been presented yet…

            • saltycracker says:

              Save your nastiness. Let’s treat all as individuals in society under the law and stop dividing them into religious/cultural classes.

              Polygamists asking recognition a hypothetical ?

              • Andrew C. Pope says:

                You asked if a person being barred from marrying 25 people would constitute an equal protection violation. That’s the definition of a hypothetical. I said your hypothetical was absurd because it is 1) intentionally hyperbolic, and 2) in no way related to the question of same sex marriage. Discrimination against would-be polygamists is not instituted due to an immutable characteristic of that class. One can choose to pursue or not pursue plural marriages. It also, unlike a ban on same sex marriage, has some rational governmental purpose: making probate and lines of intestacy clear and recognizable.

                I’m not name calling or being nasty, I’m pointing out the same conclusions and reasoning that multiple federal and state courts throughout this country have reached: bans on same sex marriage are violative of Constitutional rights of equal protection and due process and lack any rational governmental purpose. I offer up my opinions as an attorney and someone who has studied the issue of gay marriage intently from a legal perspective. I am completely ok with contrary positions but only if they’re based in something other than “I personally find ____ to be morally reprehensible and therefore no one should be allowed to do _____.”

                • Harry says:

                  So you’re not ok with contrary positions found in history as for example “I personally find slavery to be morally reprehensible and therefore no one should be allowed to hold slaves”? Quite often moral positions are reference points for progress. Just because you don’t agree with a certain morally contrary position doesn’t mean it should be disregarded.

                  • Andrew C. Pope says:

                    I’m not disregarding contrary moral opinions, I’m disregarding opinions that aren’t backed up with anything more than “this offends me.” To use your slavery example, there are cogent aguments against slavery based on due process, equal protection, and the wanton violation of another individual’s liberty interest. Judges want arguments ground in law, not in “what x religion says about the moral nature of this issue.”

                    • Harry says:

                      Well, there was the Missouri Compromise, the Dred Scott Decision, Plessy vs. Ferguson…all of them evidently “ground in law”.

                    • Harry says:

                      As will continue to happen in the future, for example to correct extreme distortions of the 14th Amendment being taken recently to legislate from the bench.

            • DavidTC says:

              Harry can drone on and on about homosexuals not being a “protected class,” but Windsor, Lawrence, and Romer show that SCOTUS believes homosexuals are deserving of some special status, even if they can’t pinpoint what that status is. Even without protected status, the government still needs a rational basis for the ban on same sex marriage; something I and, more importantly, courts, don’t believe exists.

              Yes. Harry’s a spectacular idiot WRT ‘protected class’, because in the case of gay marriage, it *is* about a protected class…aka…*gender*. The law currently forbids a woman from doing something a man can do…marry a specific woman. It forbids this *solely* based on her gender.

              So laws forbidding same sex marriage are, without any question at all, discriminatory on the basis of sex. So defenders must show some rational basis, or the law is gone. As there *isn’t* any rational basis, and never has been, anti-same-sex marriage laws are over. Period.

              And, no the fact it discriminates *both directions* does not help. Black children were forbidden from attending white schools, *and* white children were forbidden from attending black schools. But, somehow, that didn’t fly either. If the courts think that ‘separate but equal’ was nonsense in *schools*, (which could in theory actually be equal), they certainly think it’s nonsense in *who you can marry*, as no one argues potential spouses can even hypothetically be interchangeable.

              The laws against same-sex marriage are over. The end.

              Now laws protecting gay people from *discrimination* based on their sexual orientation are a different thing, and something we could probably use a Federal law about. But it’s probably worth pointing out that laws against discriminating against gender could probably be used *there*, also.

              Aka, would a restaurant that refused service to a woman and her girlfriend still have refused service if one of the couple was a different gender? No? Well, that sounds like textbook sexual discrimination to me, exactly the same thing as refusing service to a single woman but not a single man.

              • Harry says:

                Very cute positioning, but you are like the little Dutch boy with his thumb in the dike, because the entire world is moving the other way. Homosexuals are not valued and appreciated because they by and large don’t add value to society by producing families. Families are the future and everybody other than dead Western societies understands this. Actually, people like myself are much more sympathetic to them than is the vast majority of Islam, China, India, Russia, Africa, Latin culture, etc. So get over the idea that your concept represents the inevitable future.

                • DavidTC says:

                  ‘America should do what the rest of the world is doing, because they’re smarter than us!’

                  I’m pretty certain that’s what Harry is saying.

                • Harry says:

                  Re: the rest of the world. A broken clock is right twice a day. Point is, the large majority of electorate will prevail sooner rather than later, in this country and elsewhere.

                • benevolus says:

                  Presumably lots of anti-gay christians serve gay people all the time without knowing it. Why does knowing it make a difference?

    • Will Durant says:

      Again you link to a site owned and operated by Gary DeMar, the guy out in Dallas, GA who wants to chuck the Constitution and reconstruct the US as a theocracy. He claims our forefathers established the US as a “Christian nation”, however the forefathers he is harkening back to are the Puritans. He also backs the death penalty for homosexuality.

      So you are arguing about judges interpreting the Constitution by using citations from an organization that advocates the destruction of the Constitution.

      • Harry says:

        Right now we have to live under this human-devised imperfect constitution until it’s amended or replaced. But he raises a question that a couple of us have previously discussed here: Should Christians advocate to abolish civil marriage and solely depend on the church sacrament to define it? Ultimately most of us believe the marital bond under God is all that matters anyway. Of course, for most it would be prudent to also have a marital partnership agreement which could be recorded but the marriage relationship would confer no other tax benefits or employee benefits etc. unless designated in the agreement. I’m glad that others are open to discussing this.

        • John Konop says:

          I do not think churches, marriage……should have special tax status…..Now if a church gives the money to help the poor…..we have a system for deductions…..If a person has dependents…..we have a system in place….it may need modifications……why do we need any special tax status for places of worship and or marriage?

          • Harry says:

            I agree. Also, since charity should be tied to proselytization, it shouldn’t be deductible either. As with all gifts from the government there’s a big string attached.

  5. Ghost of William F. Buckley says:

    Two reasons I think this Bill is, at best political pandering, at worst, a Pandora’s treasure chest of unintended consequences:

    1.) Ralph Reed,
    2.) Faith and Freedom Coalition.

    Since our GOP rode in on a wide margin it is only natural to listen to the right of Right’s ask. I respect supporters of this ill-fated Bill, though try as I might, still vaguely understand it, and must disagree for the following reasons.

    – It is cannon fodder for the oppo in ’16,
    – Most people who want to understand what the Bill does, solves, or rectifies, cannot easily do so,
    – Finally, the Bill risks unknowable, unforeseen, unintended consequences that exceed any nebulous social benefits enactment may enjoy.

    I will congratulate Sen. McKoon for having the House go at it first, though!

Comments are closed.