Today, 14 scholars wrote to Rep. Sam Teasley endorsing his religious freedom legislation, HB218. (Full disclosure: I have co-authored with one of the letter’s signatories, Robin Fretwell Wilson). Earlier in the year, another group of scholars wrote to legislators also analyzing Teasley’s legislation voicing concern.
Two key paragraphs from the most recent group touch on the epicenter of controversy that RFRAs are a “license to discriminate.” They note the most prominent attempt to use a state RFRA to escape a civil rights law in New Mexico failed:
Much of the opposition to HB 218 appears to center on the fear that religious owners of for-profit businesses might use the state RFRA as a shield against discrimination claims. The only prominent case involved a Christian wedding photographer who was sued after refusing to photograph a same-sex commitment ceremony, believing she would thereby be promoting an immoral act deeply at odds with her religious understanding of the meaning of marriage and of weddings. See Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013).
For many religious believers, weddings are inherently religious events in which their participation must conform to religious obligations. There are serious arguments for exempting religious individuals who personally provide creative services to assist with weddings. But whatever one thinks of those arguments, it is far from clear that HB 218 would lead courts to recognize such an exemption.
One important thing to highlight. Unlike Georgia, New Mexico has both a statewide nondiscrimination law and a RFRA. The New Mexico courts declined to apply RFRA in Elane Photography because it arose from a lawsuit between two private parties. It was not directly enforced by the government.
Under current Georgia law, however, local nondiscrimination ordinances are only enforceable by government agencies. Thus, the private action distinction made by the New Mexico courts would not apply in Georgia as of now. The scholars’ letter argues that even if New Mexico’s RFRA had been triggered in the Elane Photography case, the courts “would likely have held that the enforcement of the anti-discrimination laws served a compelling interest by the least restrictive means.”
The letter is certainly worth a read. It may well impact how the legislation moves forward, particularly whether an explicit civil rights exception to RFRA is adopted.