A Second Round of Scholars Tackle RFRA

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.

60 comments

  1. John Konop says:

    What if an employee works at a company that charges interest, late fees, NSF charges…..The employee claims they were discriminated against because under their religion it is sin to do the above, and they were let go or demoted….. BTW most major religions you could make the argument….not saying it is right….but it could be what a person thinks….. Could a lawyer argue under RFRA for the employee?

  2. saltycracker says:

    The company probably did not hide those facts, right to work state, fire the dummy.

    Posted my opinion. The public has control of the conditions of the business license.

    • John Konop says:

      Salty,

      Check this out….this is a lawyers dream…

      ……..In an interesting ruling yesterday, the 5th Circuit Court of Appeals reversed the dismissal of a lawsuit brought by an IRS employee who adheres to the Sikh faith. Kawaljeet Tagore lost her job after being told she could not enter the Federal Protective Services building that houses her office while wearing a kirpan, a ceremonial blade worn by Sikhs as a requirement of their faith. Security officials refused to allow her to wear the blade in the building, citing security concerns, and Tagore refused to wear a blade shorter than 3 inches as a means of accommodating her faith.

      She filed suit against the IRS under Title VII for employment discrimination, and under RFRA for substantial burden of religious freedom rights without a compelling government interest. The trial court dismissed her suit. On the Title VII claim, the judge agreed with the IRS that accommodating her request would be an undue hardship on the employer by placing them at odds with the security laws governing the building. On the RFRA claim, the judge ruled as a matter of law that Tagore had failed to demonstrate the need to wear specifically a 3-inch blade was a “sincerely held belief” as required by the law, and that the government would pass the compelling interest test even if she had demonstrated it.

      On appeal, the 5th Circuit agreed with the trial court on the dismissal of the Title VII claim, but disagreed on dismissing the RFRA claim…….

      http://bjconline.org/5th-circuit-allows-sikh-rfra-lawsuit-to-proceed/

      • saltycracker says:

        So the IRS wrote a security rule accommodating the sword and then wouldn’t let one in ? You gotta love the IRS.

        I’m ok with IRS employees coming in fully weaponized. Makes going postal at the IRS exciting.

    • John Konop says:

      It is political theater….which in the long run will hurt the GOP. McKoon is playing checkers to become the hero of the social conservatives….Yet this will create tons of crazy behavior which will fire up the base….ie read the comments from supporters of the bill…..They really think this is a green light to bash….Obviously McKoon never really understood the concept of physics….every action has a reaction….long term the reaction will not be a smart play ie like the immigration issue…I would bet McKoon is playing the race card on immigration as well right out of the Phil Kent play book….once again not trying to solve anything….he just wants to be the next Ted Cruz….lots of smoke…at the end the act will be playing to smaller crowds…Guys like him are in it for all the wrong reasons…I would bet McKoon privately knows he is just playing a game instead of doing his job….just me 10 cents….BTW I am not the only one saying this…

      • Ghost of William F. Buckley says:

        No you are not the only one saying this.

        I read the legal scholar review from Virginia and wonder who and why they wrote this opinion piece? I wonder how close Ralph Reed is to this panel of experts? Who funding their operations?

        Sen. McKoon I am still unable to articulate in one clear paragraph what this Bill resolves.

        • xdog says:

          Five of the signatories to the Georgia letter were also signatories to a letter to Governor Brewer of Arizona regarding a proposed bill that would amend Arizona’s RFRA by allowing “businesses that asserted their religious beliefs the right to deny service to gay and lesbian customers”.

          The Arizona letter was dated yesterday, February 25. Brewer vetoed the bill later that day.

          Said Brewer: “To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before. Our society is undergoing many dramatic changes. However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want.”

          “Religious liberty is a core American and Arizona value. So is non-discrimination.”

          You go, Jan.

          Letter to Brewer: http://www.azpolicy.org/media-uploads/pdfs/Letter_to_Gov_Brewer_re_Arizona_RFRA.pdf

          News report on her veto: http://www.cnn.com/2014/02/26/politics/arizona-brewer-bill/

  3. therightdirection says:

    “just me 10 cents….BTW I am not the only one saying this…”

    But you are sure to say it Every. Single. Day. Please give it a rest with your ad hominems. It’s unbecoming.

  4. Harry says:

    “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.”
    Whose civil rights – yours or mine? Remember that practice of religion is already a constitutionally and legislatively protected class; gayness isn’t.

    • Ghost of William F. Buckley says:

      I can see your point. I lean toward Gov. Brewer as my reason not to support:

      “However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want.”

      “Religious liberty is a core American and Arizona value. So is non-discrimination.”

      • Harry says:

        Non-discrimination is not a core American value. Non-discrimination against protected classes is a core American value. Otherwise, we all discriminate every day in all sorts of ways. And please remember that religion is a protected class; gayness isn’t.

        • John Konop says:

          What if a person in thier religion thinks only gay people should have the right to marry? You have no issue with that? What if a gay couple owned the only gas station out in a small city that was open…,and you need gas….they refused to serve you because you are a heterosexual is that ok?

          • Harry says:

            And there are much more subtle forms of discrimination we all encounter every day! Have you heard of the Gay and Lesbian Yellow Pages? Sometimes Christians do the same. In regard to marriage, the homosexuals are free to be “married” in their own church just not in a court. Maybe the Supreme Court rules to “legalize” homosexual marriage , and if so then we’ll either see a constitutional amendment proposed to change it back, or face the wrath of God and world public opinion.

            • John Konop says:

              Harry,

              If I follow your logic, you think being gay is a behavior choice….and via that behavior choice they should not have full rights, and some religions think it is a sin…..That would mean you would support discrimination against people who got divorced? In fact divorce is mentioned way more than being gay in most religions….and when you get married you pledge under God for life….Nothing is bigger than that…You and Senator McKoon would support no service to divorced people?

              • Harry says:

                I’m afraid you’re making some incorrect assumptions about the “logic” or viewpoints of myself and others. Certainly being homosexual has a genetic component, same as propensity to substance abuse and other behaviors I classify as manifestations of human weakness. Unfortunately we are all human and deal with various forms of it, but weakness should be sublimated. We are not here to be weak. Homosexuals, substance abusers and divorced people should not be shunned, but neither should those lifestyles be encouraged, or celebrated.

                • John Konop says:

                  Harry,

                  In all due respect you did not answer the question. Do you and Senator McKoon want to give people the right to discriminate against people who get divorced via religous reasons? If not are you and Senator McKoon not being very inconsistent?BTW Harry I give you credit for being honest about what you and Senator McKoon want….

                    • Harry says:

                      I may not be making myself clear. Divorced people (of which I am one, and happily remarried I might add) are not a protected class – therefore we are and should be open to be freely discriminated against by anyone who wishes to do so.

                    • John Konop says:

                      If a divorced person was running out of gas, you would have no issue in the station owner refusing service based on religious reasons? This is what you, Senator Mckoon and your supporters think is true religious freedom…and should be in the law?

                    • benevolus says:

                      I suppose “people” probably are free to discriminate on their own. But when it comes to commerce or government, you better have a damn good reason if you are going to discriminate.

            • saltycracker says:

              I have no direct knowledge of what God said but mother nature is clear that aberrant behavior may be fun but it ain’t the business end of keeping your folk around. 🙂

            • benevolus says:

              ” In regard to marriage, the homosexuals are free to be “married” in their own church just not in a court.”

              Actually, I would say that gays are free to be married in their own church but not your church. I think everyone would be OK with that. But your church should not presume to impose what our civil courts can and cannot do. Those courts have to serve everyone, not just your church.

              • Harry says:

                The main purpose of marriage is to have children within a protective family, not to support your able-bodied boyfriend staying home and being legally entitled to government benefits resulting from a “marriage” agreement done up in a civil court.

                  • Harry says:

                    Traditionally was supposed to care for the children. Benefits should be all about the children. Maybe we need some reformed laws.

                • WeymanCWannamakerJr says:

                  Again you focus your curiously rapt attention on a gay male couple without children with no recognition that a “protective family” today might be outside of medieval societal norms. Adoption, surrogates, and in vitro fertilization have added to the traditional mix and children are often involved as the reason for gay marriages now. Imagine that, the very same reason marriage was invented by priests, shamans, and like so long ago. Are we to allow the discrimination you desire to be legalized so heavily as to hold it against the children as well? What if the “able-bodied boyfriend” is the stay at home child caregiver? Of either a male or a female companion?

      • Josh McKoon says:

        Senate Bill 1062 was an AMENDMENT to Arizona’s Religious Freedom Restoration Act, which was adopted in 1999 and is still the law in Arizona today.

        SB 129/HB 218 in Georgia would give Georgians the same common sense protections of their religious liberty as Arizonans have enjoyed since 1999.

        Gov. Brewer is a strong supporter of the original Arizona Religious Freedom Act.

        Having interrupted this stream of libel and misinformation with some facts, I’ll let you get back to trashing the authors/sponsors of this legislation.

        • John Konop says:

          ……Having interrupted this stream of libel and misinformation with some facts…

          You are making threats to sue people as a lawyer/Senator for asking you questions you refuse to answer about your own bill? HUH? I am totally confused? I guess if you do not like the questions, even as a public figure, you think you can sue people based on religious reasons? HUH?

        • benevolus says:

          ” the same common sense protections”

          If you could expand on this please.
          What common sense protections are currently lacking?

        • xdog says:

          “Senate Bill 1062 was an AMENDMENT”

          Since I wrote “a proposed bill that would amend Arizona’s RFRA”, and since I apologized for my confusion regarding dates, I don’t understand your complaints of “libel and misinformation”. I found the fact of common signatories interesting and Brewer’s remarks relevant and appropriate.

        • Boredatwork says:

          Having injected more misinformation (your bill goes farther than federal RFRA and Arizona’s), feel free to get back to embarrassing the state. You’ve done a very good job of it thus far.

        • oscardagrch says:

          What about incarcerated persons? Does your bill give the same religious freedom protections as Arizona?

  5. saltycracker says:

    When did marriage get considered equal treatment of people ? Married is a special group of people we treat differently than others under the law. The gay demand is inclusion in the special group to be treated equally with others in that group.
    Now….talk on….individuals and the non-married will watch.

    • benevolus says:

      My belief is that in this country everybody starts out with equal rights. Every now and then some group tries to exclude another group from receiving their full rights, therefore we have to pass special laws explicitly restoring those rights to that group. Marriage does not have to restrict anyone else’s rights, and we may end up having to explicitly legislate that.

  6. Andrew C. Pope says:

    I’m curious if Sen. McKoon and Rep. Teasley would be willing to propose accompanying legislation that expressly prohibits discrimination based on sexual orientation or gender identity by any state or local government or agency and by private individuals and businesses. You can even make an exemption for churches and faith-based organizations.

    Are they willing to make this type of discrimination subject to strict scrutiny? If not, what supports your belief that people of faith have a more pressing need for protection from discrimination than homosexual and transgender individuals?

    • Harry says:

      Again, practice of religion is a constitutionally and legislatively protected class. Homosexuals are not a protected class. I’ll keep saying that fact until you acknowledge it and take your arguments from that starting point.

      • benevolus says:

        The only reason we have protected classes is because they were discriminated against at one time. I reckon legislation like this puts us well on the way to having to have another class. The alternative being- treat everyone equally and there is no need for special classes.

      • Andrew C. Pope says:

        Although I hesitate to engage in an argument with someone who thinks “gayness” is a totally acceptable word choice for describing sexuality, I will engage in some troll feeding.

        I am asking if Sen. McKoon and Rep. Teasley would be willing to support legislation which makes homosexual and transgender individuals a protected class in Georgia. Other states have passed legislation which prohibits discrimination against these classes of individuals because they recognize that these individuals exhibit many of the same characteristics of other now-protected classes.

  7. saltycracker says:

    I sure thought that the bill of rights was about our right to establish a religion and freely exercise such, not create a seperate class of religious people. The protected class of people is all.

    The legislated law has married as a protected class that homosexuals and transsexuals want in. Maybe time to grandfather in what is and get to protecting individuals ?

    • Will Durant says:

      As I stated in this forum to Sen. McKoon in this forum at the beginning of this session, it may be time for the State to get to the real business of the State. I still have not been convinced by him or whoever is paying Ralph Reed and ADF that this legislation is needed. I’m failing to understand why legislation is wanted by religious leaders that seemingly allows people to violate the Golden Rule with impunity, which is a basic tenet in most every religion.

      Time is passing and this legislative session has produced nothing of substance. I can only assume we are waiting for those final day crunches when no one will have a chance to read what is actually being passed.

      • Ghost of William F. Buckley says:

        ^ This comment cogently summarizes how it is, at least from the cheap seats occupied by the recently Grubered ^

        Sorry, Sen. McKoon, this ol’ boy has tried and tried to understand this issue, it makes no sense. Maybe we need a really bad consequence to resolve, first.

        The Atlanta Fire Chief wasn’t it, either.

          • Ghost of William F. Buckley says:

            O he will sue. It will be costly. The reason I support his firing has nothing to do with what he wrote. He went against the captain of the ship and broke protocols. Maybe a Judge will find the protocols poorly written, ,unevenly enforced, or even not legal.

            In the end, if this law would protect or support such behavior, you have an example of why I think it is a bad law.

  8. Ghost of William F. Buckley says:

    Harry, you stick to your guns and don’t back off…the day will come when we are all watching reruns of Gay Divorce Court.

  9. saltycracker says:

    Friendly amendment to RFRA please: no alcohol or pork (BBQ) can be sold within 1,000 feet of a Mosque, Synagogue or Seventh Day Adventist Church nor served at any political event open to the public. 🙂

      • saltycracker says:

        Political BBQs in the south are code for protestants preferred aren’t they ? And clean means as first presented with hidden BS…..when will the GOP stand up and tell it like it is…. The demos are pulling one.

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