Senator Josh McKoon had likely hoped he could get SB 129, the Georgia Religious Freedom Restoration Act, through the Judiciary Committee quickly on Thursday. After all, he’s the bill’s sponsor as well as the committee chairman. But, after an hour of testimony by witnesses and discussion among committee members, his bill ended up being tabled after he refused to allow consideration of an amendment because it wasn’t presented in a timely manner.
After hearing from more than a dozen witnesses who were fairly evenly divided in their support or opposition to the bill, the committee began its internal deliberations with Senate Majority Leader Bill Cowsert saying he would support the bill. He added that Senator McKoon had taken some unfair criticism for his bill, and that McKoon had no intention to discriminate. And indeed, the substitute bill McKoon brought to committee added an additional finding to the first section of the bill saying that government has an overriding interest in eliminating discrimination. However, a legislative finding that government is opposed to discrimination does not have the force of law. For that to be the case, appropriate wording would need to be inserted into Section 50-15A-4, where the list of other things the bill doesn’t apply to lies.
And that, apparently was what an amendment Senator Cowsert intended to offer was supposed to do. In addition to invalidating discrimination as a legitimate religious exercise, his amendment would have included language making the welfare of a child a reason to invalidate a religious freedom claim.
When Cowsert attempted to offer his amendment, Chairman McKoon ruled it out of order because it hadn’t been offered 24 hours prior to the committee meeting, which is one of the committee’s rules. An effort to suspend the rules and hear the amendment failed a committee vote. That prompted Cowsert to point out that there had hardly been time since the bill was introduced to prepare an amendment, given that he hadn’t seen the bill until late Tuesday afternoon. In the end, a motion by Senator Vincent Fort to table the bill passed, and the committee meeting ended.
Senator McKoon is in a bit of a difficult spot. After the failure of his religious freedom bill during the last session, he was advised to keep this year’s version as close as possible to the federal RFRA, which has not been the cause of any of the parade of horribles those opposing McKoon’s bill have envisioned. Yet, under Georgia law, persons include corporations. That’s a concern to some who think that the resulting effect could let businesses make RFRA claims against Georgia law.
Yet placing a number of exceptions that could not be considered under the state’s RFRA law has its own potential problems. What if someone were to claim the freedom to beat his wife because of his religion, and further that it must be OK because it’s not in the prohibited list? What are the possible unintended consequences when something in the prohibited list conflicts with other state laws? And for that matter, what is the meaning of “discrimination?” It’s a very broad term, that could be defined in many ways.
I haven’t seen the amendment Senator Cowsert planned to offer, and it’s quite possible that it is more specific in terms of the types of discrimination it hopes to protect from claims of religious freedom.
If the purpose of Georgia’s Religious Freedom Restoration Act is to require the government to prove it is using the least restrictive method of furthering its goals when someone claims that method interferes with their religious freedom, then limiting the types of claims someone could make under the law appears to be counterintuitive. Let the court decide whether the state or the religious claim has more weight.
That being said, if the state believes that there are certain populations that shouldn’t be discriminated against in a RFRA claim, then pass separate legislation to make that population a protected class. Separate legislation also protects the class against discrimination that’s not of a religious nature.