Mike Bowers, Gays, and the Klan

Didn’t think we had enough dramatic flair over “religious liberty” in Georgia? Welcome, Mike Bowers.

The former Attorney General, well known for his defense of the criminalization of gays and lesbians in Bowers v. Hardwick, is now LGBT Georgians’ ally. Bowers released a memo today condemning the proposed “religious freedom” [RFRA] bills, HB218 and SB129. Let’s digest the memo.

Bowers doesn’t pull punches. He attacked the motivation behind the legislation, writing, “The obvious unstated purpose of the proposed RFRA is to authorize discrimination against disfavored groups.” This is not an earth shattering conclusion. It has been patently obvious for some time that the groups most mobilized behind these bills see RFRAs as a tool to escape civil rights laws and ordinances. They hope to use the shield of RFRA as a sword to reduce gays and lesbians to second-class status.

This has been my largest source of concern– a concern shared by a bipartisan group of legislators. These bills do not exempt civil rights laws, leaving nondiscrimination law and ordinances open to attack by religious objectors. Removing civil rights from religious-based law suits is not unprecedented, nor is it a blue state phenomenon.  Texas and Missouri both took steps to protect civil rights laws from “religious liberty” challenges.  Adopting legislation without a civil rights exception threatens our civil rights tradition and the rule of law. Bowers has that much right.

The public has been told again and again– and again– that the “religious freedom” legislation will not undercut nondiscrimination norms. I have no reason to doubt the sincerity of these assurances from legislative leaders. At the end of the day, however, what is said during media interviews and legislative hearings about their personal intent does not matter.  Legislative text does. Any lawyer worth his or her salt knows that.

Like the former attorney general, I am increasingly convinced that the lobbyists pushing these bills have a different definition of discrimination than most Georgians. In their world, denying services, housing or employment on the basis of race and sex is wrongful discrimination– but, mistreating gays and lesbians in the public square is just deserts. If there was any doubt to the veracity of that observation, the intense opposition to Bill Cowsert’s amendment, which would remove civil rights laws from RFRA lawsuits, is evidence enough. Res ipsa loquitur.

Does RFRA mean impending doom for nondiscrimination laws? I do not think so. But, while I believe that nondiscrimination laws meet the standard embedded in RFRA to trump free exercise claims, it is an open question as to whether state courts would agree.  Specifically, just as the Bowers Memo teases out, there is no guarantee state courts would consider the interest of a local governments enacting nondiscrimination protections as satisfying the test put forth in this legislation. Even if governments are ultimately successful, RFRA legislation without robust protections for civil rights laws and ordinances, is potentially costly. It may have a chilling effect, discouraging more local municipalities from adopting nondiscrimination protections. That is a risk we cannot take.

What is certain to draw attention, if nothing else, is Bowers’ claim that a state RFRA would embolden hate groups, namely the Klan. To this effect, the Bowers memo refers to the Anti-Mask Act, a 1951 law that prohibits mask wearing in public.  The law states exempts the following: “traditional holiday costume[s],” occupational masks, sporting masks,  theatrical masks (the Code specifically exempts Mardi Gras celebrations and masquerade balls), and gas masks used during emergencies and emergency drills.

Importantly here, members of the Klan challenged the law in 1990, when Bowers was Attorney General. The Georgia Supreme Court rebuffed the Klan, though the law was struck down in a Gwinnett County trial court. The Court’s opinion in State v. Miller stated, “Safeguarding the right of the people to exercise their civil rights and to be free from violence and intimidation is not only a compelling interest.” In other words, the state’s interest met the threshold that a RFRA would establish.This, however, is what lawyers call dicta. It wasn’t necessary to resolve the case because the justices used a weaker standard to dispense the Klan’s lawsuit. In other words, it is not binding precedent. If you don’t want to take my word for it, the Georgia Supreme Court pointed it out in a 2011 case, Grady v. Athens-Clark County.

The Bowers memo will likely come under attack as fear mongering. It is hard to engage in dialogue once the image of sheet-wearing throngs is thrown into the debate. But, the truth is that a state RFRA may well spawn the re-litigation of the Anti-Mask Act. Whether the Georgia courts and, ultimately, the Georgia Supreme Court, would carve out a religious exception to the Anti-Mask Act is another question. It is very unlikely. Courts in New York and Indiana have, however, divided on the issue applying varying analyses.

The debate on these bills is likely to rage on with some intensity for the remainder of session. A national spotlight will be on the Gold Dome. Let us hope that we can work together to advance the civil rights of all Georgians and not the discriminatory interests of a shrinking hostile minority.

43 comments

  1. Robbie says:

    It certainly is hard to believe that the intent of these bills isn’t to allow discrimination – especially since some of their biggest supporters, Erick Erickson and Mike Griffin – are sending out emails and calls-to-action that specifically say that these bills will allow “Christians” to deny service to “homosexual fascists,” and that the freedom of Christians (why is it only Christians?) to practice their religion is under attack.

    If Sen. McKoon is serious about not wanting to promote discrimination, he may want to ask these particular supporters to stop sending out emails with false information on his behalf. And if he appreciates what they’re doing, well, I suppose that speaks for itself.

    • Harry says:

      Discrimination against legislatively protected classes on the basis of race, religion, or disability is illegal. Discrimination against those who flaunt their lifestyle choices such as homosexuality, smoking, drug usage or alcoholism, is not illegal and should not be the cause of legal action. Legal discrimination is part of being a free people. Deal with it.

      • John Konop says:

        I guess you support gay people getting married under this law for religious reasons?

        From McKoon Bill:

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

        • Harry says:

          The great majority of the US and world considers marriage as being between a man and a woman. The mercenary corporate media can try to change that, but it won’t happen beyond a few impressionable liberals and young people who eventually become wiser as they get older. Marriage can’t be altered because it’s against the law of God – or if you prefer, “nature”.

            • John Konop says:

              You get Senator McKoon is just playing a game.He is a lawyer…He wants to create contrivisory merely to gain money and support….His bill works both ways…It gives rights to gay people to get married…..while opens up discrimination? This is a sick game that both sides should call out McKoon…I am just business guy….I can sniff out out con men fairly quick…..you are being used as well as Harry…via me being objective…and the gay issue not being personal…..I see the game….Irronic, how McKoon is using both you and Harry…

              • jh says:

                McKoon is just practicing to be the next Ted Cruz.

                Republican House Speaker David Ralston has said he’s not sure the bill is necessary. He’s more interested in doing things for Georgia than promoting his profile like McKoon.

                • John Konop says:

                  I agree at the expense of the party and our country….the worse type of politician….he should be ashamed…..we have many on both sides like him….unless more people call them out….it will keep growing…..the sad part is we have real issues….and instead they suck up the oxygen in the room on bs…over solving real issues…..not sure how they sleep at night….

          • John Konop says:

            I am not asking your opinion on the topic…..as the bill is worded by Senator McKoon do you understand if passed, gay people could get married via the bill?

              • John Konop says:

                Jon,

                You are smarter than that…..he has a bill in one hand that is marketed as an anti gay marriage and pro gay bashing bill…..yet it promotes gay marriage and opens up discrimination….McKoon is a lawyer…..who understands the legal issues better than most….yet from even reading the many threads on this issue….you can see both sides are confused and manipulated by the facts….Yet Senator McKoon does nothing to clarify the debate….which promotes more political bs….between both sides….McKoon is the poster child of what is wrong with many politicians…You are very rational….I am surprised you have not spoken out….I have many very politically active social conservative friends….as you know….I tend to lean toward being a libertarian on many social issues…I am honest about my views, which is why I have maintained the friendship via even having a different view at times….I respect Harry for his honesty on the issues, agree or not…..What McKoon is doing is flat out wrong, as a lawyer he knows better…..

      • Max Power says:

        Lifestyle choice? That’s rich. Harry do you remember when (and if) you decided to reject the homosexual lifestyle?

      • Will Durant says:

        “…the RFRA bill is about protecting the religious freedom of Georgians of all faiths. It has nothing to do with sexual orientation, your fixation to the contrary notwithstanding.”
        “I will state it again here, RFRA has NEVER been interpreted to protect/shield someone from an act of discrimination.”

        Who are these quotes from Harry? The bill’s sponsor Sen. McKoon in this forum. So either you think his bill is not what its own author thinks it is or he is being disingenuous. In any case, you are still verifying my statement that you are the shining example of why this bill should be tabled. You are stating that you want the right to discriminate against others who are sinning against your religion while in doing so are you not sinning yourself according to the main man: “Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.”

      • benevolus says:

        Is it the flaunting that is objectionable?
        This would support my impression that Christians have no problem selling cakes to gays as long as the gays “act normal”. They just don’t want to sell cakes to obvious gays.

  2. saltycracker says:

    Sure hope my Republicans don’t run out of energy by prioritizing social order while we are stuck in the car or trying to sort out our taxes (god help those with health insurance subsidies) or wondering why our public services have been cut.

    • John Konop says:

      The track record of the government being social police has been a trainreck ie war on drugs, no child left behind…..I agree, can we focus on unraveling the bs…if they we just stop the bs….and end the big brother laws….it would fuel the economy….

        • John Konop says:

          On a macro the taxes have been used for funding…..more than stopping people from smoking….The latest tax hike proposal is for Medicare….not to stop people from smoking…

          • Harry says:

            I think the purpose was/is to discourage smoking – nothing wrong with that. Unfortunately the tax proceeds are being used for seemingly everything but health improvement.

            • John Konop says:

              Harry,

              Most the time this has been the general MO…..Agree or not with the policy it is sold as a tax revenue generator…..

              ………But a fiscal note, requested by state Sen. Chuck Hufstetler (R-Rome), estimates that the increase in tax revenue would be $561 million to $585 million in fiscal 2016. The total includes an increase in the tax on smokeless and loose tobacco as well.

              The projection, from Georgia State University’s Fiscal Research Center, is based on raising the tax from the current 37 cents per pack – the third-lowest levy in the nation – to $1.60.

              The revenue boost would decline slightly on an annual basis through fiscal 2020, when the estimated amount would be $461 million to $554 million.

              Andy Lord, a health care lobbyist who this week pushed the higher cigarette tax in a House hearing on funding a transportation bill, said Friday that he was not surprised by the number “based on usage rates in Georgia.”……

              – See more at: http://www.georgiahealthnews.com/2015/02/study-sees-big-gains-tobacco-tax-hike/#sthash.h9t3YMXh.dpuf

  3. xdog says:

    “since some of their biggest supporters, Erick Erickson and Mike Griffin – are sending out emails and calls-to-action that specifically say that these bills will allow “Christians” to deny service to “homosexual fascists,” and that the freedom of Christians (why is it only Christians?) to practice their religion is under attack.”

    After which Erickson presumably went home, worked on his seminary studies, and prayed to the prince of peace.

  4. Andrew C. Pope says:

    Listened to Erick talk about Bowers and the RFRA last night and I’m starting to wonder if Erick knows how laws work. Dude has a JD, he should presumably be able to see how ridiculous this bill is. I mean, I get it. He needs ratings and he’d have nothing to talk about if he couldn’t tilt at strawmen or toss red herrings. But at some point, your conscience as a lawyer needs to speak up and go “I should probably stop wantonly misleading people.” Otherwise you’re booking a ticket to Nancy Grace-ville.

  5. Josh McKoon says:

    “Your conscience as a lawyer needs to speak up and go ‘I should probably stop wantonly misleading people'” — good advice for Mr. Bowers.

    • taylor says:

      Misleading people is more frequently a current politicians. It’s sad that politicians can be much more truthful when out of office.

      • John Konop says:

        Josh,

        I do not know how many times you avoided the questions, so can you clarify the following:

        1) Does your bill give the right for gay people to get married for religious reasons why or why not?

        2) Does your bill allow people to discriminate service to other people based on religious reasons why or why not?

        I would think as a lawyer who wrote the bill the above are fairly basic questions. If you do not answer most rational people on both sides will know why.

        • Will Durant says:

          According to signals from the Supremes gay marriage is going to happen regardless of this RFRA. The majority of the Fortune 500 companies recognize them and are offering spousal benefits though this is largely a result of having to treat all employees the same regardless of the state in which they reside. This bill as written allows in-state businesses to ignore spousal benefits for gays even if legally married using religion as their reason a la Hobby Lobby at the federal level. Deny that one Sen. McKoon.

          • Jon Richards says:

            Given the doctrine of equal protection, the court says that the company must provide the same benefits to same-sex couples that it does to heterosexual couples.

            Hobby Lobby went the way it did because the federal government had already established that some religious organizations could use a less restrictive standard to comply with the ACA’s contraception mandate — with the same exceptions that HL wanted. Because RFRA asks if there are less restrictive methods available to accomplish what the state wants to do, the answer in the HL case was yes, and that’s the way the court went.

    • Boredatwork says:

      If your legislation really is not targeted at the LGBT community, and you do not intend for it to permit discrimination, why do you object to adding language saying dscrimination is a compelling government interest?

  6. Spacey G says:

    Can’t say I’ve ever tried to prevent a Southern Baptist from believing in God ‘n Them, but I sure have tried to stop plenty of them from drinking up all my nice cold Chardonnay.

  7. saltycracker says:

    The state is there to protect the rights of individuals and individuals have granted the state the right to regulate. Regulations may trump religious activities while the opposite is not true. Folks are free to practice the religion of their choice as long as it does not violate public laws.

    Now we come to the part about good laws.
    Marriage….this has turned into a wasteful division of public regulation and resources and it can be addressed by getting out of the licensing business. Let marriage be defined by religions and publically deal with this under individual protections and contract law.

    Business practices are licensed in the public domain. Perhaps we need to spell some things better in licensing. Essentially a business license should be expected to serve the public unless the customer is violating a law or a condition listed on the posted business license. The issurer of the license can determine/accept what conditions go on that license.

    Can a private water company pick and choose their customers ?
    Consider the Amish and Mennonite Holy Wars in PA. Can a Mennonite taxi cab company refuse to pick up the Amish (who can’t own/operate cars) and take them to their jobs.? IMO, only if the public office issuing the permit allows it to be a condition displayed on the license.

    Just some coffee thoughts.

    • benevolus says:

      We have been writing the term “marriage” into our laws for many years -probably with the consent if not glee- of religions. How about if religions don’t like the way it is being used in the law THEY use a different word for whatever ceremony they want to acknowledge? Why should we go about changing all the thousands of laws that contain the word? I’ll even make a suggestion: Chatteliage.

      • saltycracker says:

        Do you mean to make up some derivative of “chatelaine” ?
        For thousands of years marriage as laws evolved, had a definition/inherency, male, female but depending on the culture, the quantity, age, duration of the female changed. The same sex definition is about expanding a group entitled to special monetary benefits from society at the expense of the original group and the unmarried.

        As an employer you have an option to cover spouses and dependents, as a taxpayer I object to mandatory taxes for coverages of those able bodied adults not on the public payroll.

        • benevolus says:

          In the secular world we revise definitions of words all the time, especially in the legal sense I think.
          The root word being “chattel”, very similar to the biblical meaning of marriage, or at least “wife”.

          • Will Durant says:

            Ditto to the era of the Founding Fathers as well. How do you think Washington became the richest guy in Virginia?

          • saltycracker says:

            Especially when it bestows public monies on the special interest group du jour be it marriage or economic opportunity zone. But few are as divisive, custom shaking and expensive as this one.

  8. saltycracker says:

    WD, what is amazing is that GW put it all on the line including his life and getting his butt handed to him all over the colonies to lead our independence. Who would step up today like he and many others like him did to lead a bunch of ragtags against the strongest military in the world ?

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