Religious Freedom Bill Is Tabled After an Amendment Wasn’t Allowed to Be Presented

Members of the Senate Judiciary Committee listen to the testimony of Jeff Graham of Georgia Equality.  Photo:  Jon Richards
Members of the Senate Judiciary Committee listen to the testimony of Jeff Graham of Georgia Equality.
Photo: Jon Richards
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.

47 comments

  1. blakeage80 says:

    So, it sounds like Democrats saw their opening to slow this thing down and Sen Cowsert, perhaps stung by his rejection, went along with it. Now it looks like he sided with Dems to slow down the bill. His response to an email sent this morning denies any of this and he emphatically restates his support.

    • John Konop says:

      …. “the right to act or refuse to act in a manner that is substantially motivated by a sincerely held religious belief.” ……

      McKoon put the GOP in a no win situation. The above language in the bill would have been used by gay people for legal rights of marriage. Yet McKoon sold the bill as anti-gay marriage.

      Finally, the bill as proposed would of open the door to massive lawsuits over Jim Crow type rules…..This would of been a massive black eye on the GOP….Can you imagine if cases came up over no blacks, Jews, gays……on businesses based on the McKoon bill ie “sincerely held religious belief” as a defense? Combine this with changing demographics it would of been a major issue for the GOP in the next few election cycles. The sad part is McKoon is a lawyers and should of known better…I give Sen. Cowsert credit for acting like an adult, and putting Sen. McKoon in time out. It is shame that McKoon would put his PR political BS ahead of the party.

      I get Erick Erickson also a lawyer wants ratings…….BTW makes his living that way….Sen. McKoon should act like an adult, and represent the people first….This is about our state….not ratings for a radio show.

      • Jon Richards says:

        John:

        I have not seen Senator McKoon sell this bill as anti gay marriage. Same for Rep. Teasley.

        Your second point also makes no sense. Discriminating on the basis of race or religion is already illegal under Federal and state law, and the government has a compelling interest in enforcing that law. So your remarks about Jews and Blacks aren’t valid. As far as gays go, that’s the point of my last paragraph. As things stand now, discrimination on the basis of sexual orientation is perfectly legal in Georgia, RFRA or not. If the General Assembly wants to make that discrimination illegal, it should do so in a standalone bill.

        • John Konop says:

          Jon,

          I like you…..but it was clear as a bell on threads Mr. McKoon commented on he never corrected any of the anti gay marriage, no gays, no blacks….comments….. Also I have social conservative friends….this was pushed as an anti gay marriage bill. As far as the house version it had different language….and did not have, “the right to act or refuse to act in a manner that is substantially motivated by a sincerely held religious belief.”, which clearly opens the door….ask and lawyer….BTW I asked numerous lawyers… all told me a first year law school student would of seen the issues with the wording in the McKoon bill.

          BTW, the case McKoon put on the first thread was a zooning case. A church did not want to follow the proper parking rules and building type….McKoon, seemed rather clear his bill would be used to violate property owners rights via religious reasons….all they have to show is “sincerely held religious belief”.

          Finally, at the end much of his bill would of been overruled by the SC….Not after a bunch of PR political BS…One can only conclude this was for grandstanding or McKoon does not understand the law. Why else did McKoon add the extra language?

          • Andrew C. Pope says:

            John,

            Not correcting your hypotheticals does not equate to an admission of your hypotheticals. It’s like concluding that Craig James killed 5 hookers based on the fact he’s never expressly denied allegations that he murdered five innocent women, with hearts of gold mind you, back in the early 80s.

            This is a terrible bill, but not for the reasons you list. Also, let’s stop assuming lawyers, myself excluded, are all-knowing. Hearing Erick on the radio the past few weeks has severely diminished my regard for a Mercer law degree… not that Nancy Grace was doing the school’s reputation any favors to begin with.

            • John Konop says:

              The bill was marketed to the social conservatives as an anti gay marriage bill. What part of that is hypothetical? Btw are you saying I am wrong that this bill cannot be used as a defense of gay marriage? That this bill would not be used as an excuse for Jim Crow like behavior? Not saying it would not be overturned if it went to the SC…but it is clear from comments on this blog….it is a green light to discriminate for many who support the bill…

                • John Konop says:

                  We can have this straighten out ASAP….McKoon can release a statement to clarify this bill is about stopping gay marriage…..which would be strange via how it was written by him…..Or he could say the bill guarantees the rights of gay people to get married….If he is being honest about it why not?

      • blakeage80 says:

        John, I see where you could interpret my comment as anti-Cowsert and my comments on the other thread as pro-Erickson. They aren’t that. I don’t really know what to make of it all. I was just reporting what both had said in both email and twitter interactions earlier today.

  2. Will Durant says:

    Perhaps Senator McKoon should take his good intentions to the Transportation Committee. They need all the pavement they can get.

  3. Jon Richards says:

    We received this statement from Senator Cowsert this afternoon, which is reprinted in its entirety:

    I’m not sure what information you may have heard but for the record, I am very much in favor of the bill. I voted in favor of a similar bill in Judiciary Committee during the last legislative session and intend to support it again this year. The motion to table the bill on Thursday was not an attempt to kill the legislation, just a way to give the committee time to consider an amendment in order to thoroughly review and perfect it prior to a vote.

    The author of the bill has specifically stated on several occasions that this bill is not intended to discriminate. The amendment that I proposed simply stated that government has a compelling interest in protecting children from abuse and neglect and to prevent unlawful discrimination. This amendment is to prevent misinterpretation of the bill by others who have falsely claimed that it is intended to permit or justify abuse of children or unlawful discrimination.

    Any suggestions that my amendment is intended to kill the legislation, to water down the purpose of the bill, or in any way to divert the bill’s stated purpose are untrue.

  4. Harry says:

    Let’s keep laser focus on one main goal, that government ought not sanction anyone who has a moral reservation about being forced to interact with anyone in any way, other than solely because they are a member of a protected group.

  5. Will Durant says:

    The politicians just need to be, ahem, honest, and state what is really behind this bill and why it is so urgent that it be rammed through this year. Gay marriage is upon us people, the Supremes have already served notice and it is going to happen, like it or not. The state RFRA has very little to do with who will make the wedding cakes. That is chump change and individual rights are already adequately covered by the Bill of Rights, that’s a smokescreen, as usual follow the money. It has everything to do with denial of spousal benefits. No state that has permitted gay marriage whether voluntarily or shotgun style through the courts, has successfully passed a RFRA after the fact.

    Be aware however that like conservation and agricultural easements, GATE cards, and the like, there are almost always unintended consequences to these types of laws. One that I can see will be lots of future employment opportunities, for attorneys.

    • Harry says:

      Then why are bakers and photographers being sued because they don’t care to cater to homosexual “weddings”?

            • Will Durant says:

              You’re crazy if you think I’m going down that rabbit hole by clicking on a link to another Gary DeMar website. Even you must realize that it is ludicrous to argue 1st amendment issues and cite a guy who wants to trash the Constitution and create a theocracy. I don’t even have to read it to know there would be slants and falsehoods in any article from this guy who has backed off of advocating the execution of all homosexuals to say that it would be ok to just kill enough of them to drive the rest of them back into the closet. Keep it up Harry, you are doing a better job of convincing others of the dangers in this bill than your dreaded “homosexual agenda” people could ever do.

                • Will Durant says:

                  Actually I was waiting on my prophylactic pc to reimage last night before clicking on one of your Brandon Vallorani/Gary DeMar links. Sure enough when reading legitimate sources for the same story we find that though a summary judgement in favor of the plaintiffs has been issued though damages have not yet been assessed. However, the gay couple was only asking for $7.91 (the price of gas wasted driving to another florist). If that is going to “impoverish” the florist then she shouldn’t have been turning away anyone’s business but it fits with the theme of another persecuted Christian to DeMar, et al. The florist is also being fined $2,000 in a separate action by the state’s attorney general for breaking Washington’s consumer protection law.

                  So all this is more monkey dust as Charlie calls it that you fling to obfuscate the fact that you won’t acknowledge my message. Or if you prefer Biblical, get the beam out your eye. You claim to be an accountant. Can you not see the difference in the zeros behind the numbers in 4 cases dug up nationwide involving thousands of dollars vs the tens if not hundreds of millions in denying spousal benefits in Georgia once gay marriage is legalized? The Hobby Lobby decision by the SC was based upon the federal RFRA. That is why hammering out the delicate legalese on discrimination in this one is the sticking point here. They are playing with fire though and the squishy language will become fodder for many a court battle in the future.

                  • Harry says:

                    $2,000 or whatever isn’t monkey dust. Anyway, the point is the homosexual group is pushing to get public acceptance of their twisted morality. They’re trying to tell the other 97% of us that we have no legal right to avoid them. This cannot stand. These people have no cause of action. They are not being persecuted, they are not being economically disadvantaged as was the black community. We just wish to retain our right to avoid dealing with them when feeling morally compromised, under circumstances of our choosing. Sorry you can’t understand it. Everyone’s rights have a limit.

                    • John Konop says:

                      Dear Senator McKoon,

                      Paging Senator McKoon….can you please clarify to all what your bill does? Does it support gay marriage or not? Can it be used to discriminate on relgions grounds? Why not tell us all? The truth will set you free Senator McKoon….

  6. Harry says:

    Sen. Cowsert (R-Athens) is unequivocal that he supports RFRA. His amendment reads “includes but is not limited to protecting the welfare of a child from abuse, or neglect as provided for by the laws of this state and protecting individuals against discrimination.” I’d like to hear his explanation of why “protecting individuals against discrimination” is needed? Discrimination against protected classes of individuals is already prohibited by existing law.

  7. Dave Bearse says:

    The GaGOP, luring minorities to their tent by keeping alive the memory of States and religious rights being used to oppress people in the news.

    • Harry says:

      It’s the Dems keeping those memories alive. Trying to extend legal protections and benefits to the homosexual lifestyle has zero to do with historical discrimination that was largely eliminated through law. Please don’t think that economically privileged or at least comparable homosexuals are in the same ballpark.

      • Dave Bearse says:

        I’m comfortable with people discerning for themselves if there’s a connection between the tent of the successors of those that opposed anti-discrimination law because it infringed on states rights and religious freedom using those same arguments to oppose legal protections and benefits for gays.

        Thanks for mentioning that discrimination doesn’t apply to the economically privileged. It’s a reminder that will resonate with some Jews.

  8. John Konop says:

    This thread denostrates McKoon is paying a sick game….he could could clarify his bill….He hides like a the Worst type of politician….This is what happens when you play his game…..very sad Sen. McKoon, do you have no shame? I will pray for you Sen. McKoon…..

  9. Michael Silver says:

    I’d suggest the we don’t read too much between the lines about the tabling of the bill. In fact, Sen. McKoon’s tabling of the bill is what is required by committee rules and this committee and its subcommittees has big problem with the rules consistently being applied.

    During last year’s hearing on the gun bill in front of Judy-Non-Civil, Sen. Fort pointed out how the rules were cast aside whenever Judiciary Non-Civil Committee chairmen Sen. Stone wanted them cast aside. Chairman Stone responded by basically saying the rules only apply to bills that the doesn’t like or to Democrat bills (he was serious about that statement)

    I wish Senate hearings were videotaped because people of good-faith of any political viewpoint would be outraged at Sen. Stone’s willingness to break rules when its convenient to him.

    • Will Durant says:

      Sen. Stone really screwed up the private probation bill last year with last minute adjustments. Actually got the sun shining on the wrong side of the dog when the Governor had to veto it just because of his changes.

      I do wish Sen. McKoon would reintroduce the legislation requiring at least a 1 day gap between a final reading of a bill to the full chamber before allowing a vote on the bill (thanks Jon). This should be a law, not a rule that can be set aside by the majority.

  10. NoTeabagging says:

    The belief that we all have the right to exercise our freedom of religion has led to creation of individual religions. There is no roster of “approved” and recognized” religions. Is there?
    Apparently, everyone has the right to interpret their own religion, and create beliefs as convenient.

    • Harry says:

      Apparently, yeah. Most folks don’t care for state-sponsored religion and other forms of being told what to do and not to do. Been so since the country was founded. Apparently, even before that defining episode.

  11. Harry says:

    I have no illusions that in 99% of the legislation that comes up, money talks and contributions matter. The big organizations and corporations which have a vested interest in maintaining their income streams, and not wanting to deal with legal problems arising from the application of their policies and agendas are practically always the winners; and the great majority of the citizens of Georgia who wish to protect their freedom and liberties and the right to live in accordance with their moral code, are the losers.

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