Senator Josh McKoon (R-Columbus) has filed the hotly-anticipated Senate version of a bill supporters claim is necessary to protect religious freedom in our state, SB 129. McKoon’s “Georgia Religious Freedom Restoration Act” is a counterpart to Rep. Sam Teasley ‘s (R-Marietta) “Preventing Government Overreach on Religious Expression Act,” HB 218. The AJC notes that McKoon’s bill counts 28 additional Republicans among its supporters, so it already enjoys majority support in the Georgia Senate.
McKoon often points to the fact that many states have adopted state-level RFRAs after the US Supreme Court ruled that the federal RFRA did not apply to the states as reason to support his bill. However, in some cases this bill’s language goes beyond both the federal RFRA and Teasley’s HB 218. McKoon’s definition of “exercise of religion” specifically includes “the right to act or refuse to act in a manner that is substantially motivated by a sincerely held religious belief.” This language is absent in the federal RFRA, which only covers “exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This language, viewed in light of calls to support state-level RFRAs to protect business owners refusing to provide services to LGBT individuals, seems to give credence to concerns about state-level RFRAs being used as a defense of discrimination.
Additionally, McKoon’s bill requires the government to prove that substantially burdening religion is “essential to achieve” a compelling government interest, while the federal RFRA only requires the government to prove the burden is “in furtherance of” a compelling government interest. I’ll leave it to the lawyers (and, of course, the commenters) to determine if this difference is substantial. You can find side-by-side versions of these passages from SB 129, HB 218, and the federal RFRA below the fold.