Georgians are being sold a false bill of goods by organizations mobilizing behind “religious freedom” [RFRA] legislation in the General Assembly. The legislation would allow religious objectors to sidestep the requirements of generally applicable law if their religious exercise was “substantially burdened,” unless the government demonstrates the law serves a compelling governmental interest and there is no less restrictive means to serve that interest.
These proponent groups are exploiting the culture wars to drive a wedge between well-intentioned Georgians. They are perverting the very concept of religious liberty. To be clear, I do not question the intentions of the bills’ sponsors, Sam Teasley and Josh McKoon, nor do I seek to impugn their motivations. However, the groups that have thrown their support behind the bill hold dangerous ambitions and mischaracterize the meaning of religious liberty.
LGBT organizations have cried foul, fearing that the enactment of a state RFRA will potentially gut direly needed nondiscrimination protections. These modest protections have been secured in discrete municipalities in Georgia against discrimination in housing, employment, and public accommodations. Routinely, LGBT Georgians fear they will suffer at the hands of invidious discrimination. I have personally borne witness to people being tossed from public accommodations with anti-gay slurs hurled at them. LGBT persons are often victims of insults in the streets and targeted for acts of violence. The LGBT community’s concerns are legitimate.
Supporters of the legislation tell us that these bills will not undercut nondiscrimination norms. More than verbal reassurances, why not expressly exempt civil rights laws from religious claims? Texas took this route when it enacted a state RFRA. Georgia’s legislation does nothing to squarely address this primary concern of LGBT Georgians. A simple line could do away with any notion that a state-RFRA is intended to serve as a license to discriminate or embolden anti-gay animus.
Perhaps this exposes a more fundamental problem in that some behind this legislation don’t see the denial of services to gay and lesbian Georgians as discrimination. Certainly the organizations supporting this legislation want the right to discriminate against LGBT people. The Georgia Faith and Freedom Coalition in November attacked candidates supporting nondiscrimination protections for LGBT persons as endorsing “special rights.” Some groups have been reported by Pew to hold the goal of letting religious objectors to gays and lesbians opt out of providing them goods and services.
Let us squarely address the issue of civil rights exemptions and for-profit businesses. Allowing accommodations for private, for-profit businesses flies in the face of our American civil rights tradition and would gut nondiscrimination policies by allowing individuals to, as Justice Scalia once wrote, “become a law unto himself.”
This nation settled the question of whether private businesses should be subjected to nondiscrimination laws. We did not accept Maurice Bessinger’s claim to “religious freedom” to deny serving African-American patrons at Piggie Park BBQ in South Carolina or Moreton Rolleston’s purported “liberty” interest to deny services to patrons at the Heart of Atlanta Hotel. For 50 years now, this country has firmly held onto the belief that for-profit entities cannot discriminate against protected classes in ordinary commercial transactions. We must never turn our back on that tradition. Let us not return to a mindset where customers are greeted with signs saying “We Don’t Serve Homosexuals” and LGBT persons will need to confirm a business’ accommodation policies as African-Americans did with The Negro Motorist Green Book.
Turning away from LGBT rights, there are few “controversies” that proponents of this legislation point to for which there is no pre-existing remedy. Zoning laws and regulations that burden religious actors can be challenged under the Religious Land Use and Institutionalized Persons Act. The Equal Access Act covers accommodation requirements for after school programs. Many of their other complaints, including “speech zones” on college campuses, are not religious-specific claims, but more broadly about Free Speech. State and local government employees are already guaranteed “reasonable accommodations” under Title VII of the Federal Civil Rights Act.
Assessing the examples of religious “bias” offered by the Georgia Baptist Convention, the few without a pre-existing legal remedy are about civil rights and principles of nondiscrimination. Proponents object to the premise that officially recognized student organizations at colleges and universities— eligible to use taxpayer-supported resources and apply for student fees— must be open to all students. Simply put, student groups are required to abide by neutrally applied nondiscrimination policies. No group is forced to adopt a particular philosophy, but those that do not want LGBT members, for example, are not entitled to public funding.
Some groups also appear to reject the idea that student fees cannot be used for purposes of proselytization. That is not the say that, generally, religious groups are not eligible for student fees funding, but they cannot use them to support sectarian activities just as much as political organizations cannot use student fees to support partisan electioneering activities. Student fees are not best spent to subsidize religion, just as they are not well spent on partisan politics.
All of this is not to suggest that accommodations for the religious faithful are inherently corrosive. For example, take a 1996 case from Wisconsin. Members of the Old Amish faith were fined for failing to display bright orange triangles on their horse-drawn buggies. They objected on religious grounds. The Amish asserted, among other things, the colors were too “loud and bright” and that they could achieve the state’s traffic safety concerns with lanterns and duller reflecting tape. The Wisconsin Supreme Court, using the same test codified by the federal RFRA, ruled in the Amish’s favor. At the end of the day, safety needs were satisfied and individual religious liberty preserved without any detriment to non-adherent third parties. This example illustrates a fundamental point about the nature and boundaries of religious liberty: religious liberty is a shield from government, not a sword to injure others.
The second point the Amish story illustrates is that the compelling interest test codified by RFRAs was intended to aid minority religious groups from the indifference of the majority. Indeed, more than indifference, some religious minorities face bias and prejudice, including Georgians of the Islamic faith. Look no farther than the disgusting episode of Islamophobia displayed in Kennesaw’s denial of zoning accommodations for a local mosque to illustrate this point. Notably, only deafening silence came from the groups supporting this legislation when it was time to defend the rights of our Muslim brothers and sisters. But, at press conference after press conference at the Gold Dome, these struggles are ignored and erased by unsupportable claims of sweeping anti-Christian hostility.
Regretfully, the mobilizing rhetoric behind the religious liberty debate has never been about legislative actors overlooking disfavored or powerless religious groups. The record is clear— the major forces supporting a state RFRA improperly see it as a tool of religious gerrymandering by which majoritarian forces can entrench their political power and thereby continue to impose their discriminatory interests.
We should have a process of negotiation and debate about ways to simultaneously advance the civil rights of all Georgians. Blunt measures designed to protect one side and browbeat another should not succeed.
Correction, February 12, 2015:
Tim Schultz, director of the 1st Amendment Partnership, has kindly written and expressed concern that the Pew piece linked to mischaracterized the efforts of his group and that of his former employer, the Ethics and Public Policy Center. The language linking to the article has been amended accordingly. I thank him for reaching out to clarify his position.