Religious Freedom in Georgia — “Come Now, Let Us Reason Together”

In reading the printed words in the proposed Georgia Religious Freedom Restoration Act (SB 129), it is difficult to see on its face how it should alarm anyone. It simply says that religious freedom – a freedom enshrined in the First Amendment to our U.S. Constitution and Article I, Paragraph IV of the Georgia Constitution – shall require the Georgia courts to insure that any infringement of religion by the government takes place only when there is “a compelling governmental interest,” and the government utilizes the “least restrictive means of achieving that compelling governmental interest.”

Similar language was passed in the early 1990’s by the U.S. Congress to protect us against over-reaching federal action, and 19 States – red and blue – have subsequently passed similar laws as well.

So what is the harm?  Well, let’s take a hard look below the surface because as a legislator for ten years, I came to understand the importance of recognizing what is the motivation behind a bill, and as a lawyer, I am always concerned with unintended consequences.

There are many individuals and groups that I greatly admire supporting this legislation. Representative Sam Teasley and Senator Josh McKoon, sponsors of the House and Senate versions of the bill,  are both friends and former colleagues, and I believe the sincerity of their positive motives for bringing this legislation. The Faith and Freedom Coalition is also a good organization which has been a strong positive advocate for people of faith.

However, we cannot ignore others who have marched to our Capitol in support of this legislation and have clearly indicated their hatred – yes, hatred — for gays and lesbians and others in the LGBT community, and their intention to use this legislation to try to discriminate against these fellow citizens. This cannot be allowed to happen. Not in the 21st Century. Not in our state. Not in my Lord and Savior’s name.

Furthermore, as a lawyer who began his career as a Special Assistant Attorney General handling child abuse cases and a former member of the Georgia Family Violence Commission, I am concerned that this bill will be wrongfully twisted by those perpetrating child abuse and family violence as a defense in court to justify their actions.

So, what can be done? To borrow from Isaiah 1:18:  “Come now, let us reason together.”

SB 129 already rightly recognizes reasonable exceptions to guard against misuse of this proposed law by protecting employers and excluding convicted prisoners in our penal institutions. We should also add two additional critically needed exceptions to guard against wrongful discrimination and to protect our fellow Georgians from violence.

The first additional exception should expressly bar the application of the law against any present of future civil rights law or local ordinance protecting citizens against discrimination. Texas, for instance, already recognizes this exception in its Religious Freedom and Restoration Act. The second exception should bar the use of the statute as a defense in cases involving allegations of child abuse or family violence.

These two additional exceptions will allow the advocates of the proposed Georgia Religious Freedom Restoration Act to afford Georgia citizens the same protections contained in federal law and guaranteed to citizens in 19 other states, while at the same time insuring that the law will not be manipulated and misused to try and discriminate or provide a shield to those who would do violence against vulnerable members of our society.

28 comments

  1. Robbie says:

    Absolutely, yes. These two exceptions would go a very long way to easing people’s minds and gathering support from many more people, and would be a very clear statement that the intent of this bill is, as its sponsors say, not to discriminate or open new loopholes.

  2. benevolus says:

    I still don’t understand what problem this bill is supposed to solve. If it is not to allow discrimination, what is it for? Are Christians (or Muslims or Buddhists) being infringed upon in some way that this bill would fix? Can’t a cake-maker already refuse service to a gay couple?

    It is similar to the photo ID law in that way. If you can’t identify an actual problem then we are left to speculate about the intent.

    • DavidTC says:

      If you can’t identify an actual problem then we are left to speculate about the intent.

      Actually, the intent of the bill is rather clear to pretty much everyone. It’s just politicians are reluctant to openly *say* what the intent is, because they’re afraid it will make them sound like bigots.

  3. Posner says:

    What basis is there for opposing these exemptions?

    What is the argument–it’s ok to abuse children if your religion says it is? Or, it’s ok to discriminate against women because your religion doesn’t believe women are equal to men?

    • Max Power says:

      I would really appreciate it if they were honest and just renamed the bill the “It’s OK to Discriminate Against Gays Act.”

    • Posner says:

      Finally. I’ve been wondering when someone was going to finally break down and confirm why they want RFRA–they want to be able to discriminate against gay people.

      Because every single excuse for this legislation the proponents have given thus far would be entirely unaffected by a civil rights exemption.

      I actually find this argument quite shocking–we should be able to violate someone’s civil rights because we disagree with the way they live their life.

    • Andrew C. Pope says:

      Happy/sad to know that, no matter how this shakes out, Erick is firmly cemented himself as the guy who is willing to peddle outright bigotry in exchange for ratings and attention. Bravo, sir.

      • MattMD says:

        Erickson has turned into a bomb-throwing buffoon.

        You have to remember, this is the same clown who said a SCOTUS Justice was a child molester who violated goats.

          • Will Durant says:

            Twitter comment, 2009, regarding the retirement of David Souter, and he didn’t use the euphemism “violate” either. To paraphrase Ralphie he used the Queen Mother of dirty words to describe sexual congress with a goat in reference to a Supreme Court Justice. I think he admitted later that it wasn’t his finest hour. Just another day in the life of a shock jock. Ultimately, like Limbaugh and Hannity, he’s just selling soap and considering their typical audience, Viagra.

  4. Dave Bearse says:

    Your failure to cite actual problems the legislation will address leaves discriminatory motivation as the reason for the legislation.

    • xdog says:

      Ed Lindsey’s inclination is to work so each side gets a taste but I agree with you and Gershwin. Time to close the kitchen.

      • Will Durant says:

        It’s a complete waste of time. The Bill of Rights already protects the individual against the will of the majority. Do we really need laws to protect the majority? Since we are going Biblical here. If passed, this legislation would require every judge hearing a related case in the future to have the wisdom of Solomon. With the lines between compelling governmental interest and religion not being established this is a Pandora’s Box of a bill and it isn’t even needed. It will lead to the State having to decide what is and is not a religion. We really don’t want to go there.

        • xdog says:

          Well, we’re in agreement.

          The first time McKoon graced PP re his bill, I wrote that regardless of intent his bill would lead to abuse by mischief-makers and a waste of time and money at best, and provide legal cover for anti-gay behavior at worst. I haven’t changed my mind.

  5. shoesnsocks says:

    “Are Christians (or Muslims or Buddhists) being infringed upon in some way that this bill would fix?” Given Lt. Cmdr. Modder has been relieved of his duties, I guess you could say he’s feeling pretty infringed on right now. Whether or not you agree with the tone of the Fox News report, you do have to wonder why Modder’s counsel was continually sought by another officer whose views on the practice of homosexuality ran contrary to his. The complaining officer would have had a very good idea of what Modder would have taught about Christian sexual ethics to those who sought him out (including adultery and fornication), given Modder’s status as an Assemblies of God chaplain. The sign of things to come?
    http://www.foxnews.com/opinion/2015/03/17/showdown-navy-forces-chaplain-to-choose-between-faith-and-job/

  6. shoesnsocks says:

    I was giving an instance of where someone had been infringed on because of his religious beliefs. Another would be the example in the Feb 28 – Mar 6 Economist where a Muslim woman’s application for a job at Abercrombie was downgraded and denied because of the way she dressed (headscarf).
    If you are suggesting Modder’s insensitivity is the reason he was dismissed and it had nothing to do with his religious beliefs, are you suggesting he sensitively tell someone they are sinning or… what? Recant / in silence, deny his faith stance?

    I had read the military times piece before I made my earlier post. I saw the various allegations made by Navy Capt. Jon Fahs. These statements are allegations, the specifics of which are strongly denied by Modder in the legal response he is required to make to the charges.
    I am also struck by the statement in the military times piece: “The command said it is impossible to know the extent of Modder’s misconduct because conversations between service members and chaplains are typically considered confidential.”
    One may take that to imply that Modder’s conduct was more terrible than what he is being accused of. Of course, viewed another way, it calls into question the very allegations that have been made.

    Modder is an AOG chaplain. The AOG is very clear about its position on Christian sexual ethics. Again, I have to believe AOG chaplains are not the only chaplains in the Navy. If you wanted to be affirmed in your sexual practices why go to a chaplain who, in being true to his faith standards, would counsel you otherwise? Capt. Jon Fahs clearly believes he is on a righteous crusade. Perhaps, but I’m not convinced his motives are entirely altruistic.
    Sensitivity is important in counseling. But it’s not clear to me who the victim is in this case. While RFRA may not be directly related to the above, I would argue it informs the debate.

  7. WeymanCWannamakerJr says:

    Sorry, as already noted above your straw man doesn’t apply to a possible Georgia RFRA in the least or actually even with the federal one. Have you been in the military? Even if you haven’t you should know that your ass belongs to Uncle Sam. You are subject to the Military Justice Code and not civilian law. While the Constitution still applies in some areas in others it does not. You don’t get the freedom to come and go as you please for example. You should realize that Modder is a Military chaplain, not an AOG one. The military is very clear about its position that they are to be chaplains to all, pastors to some.

    You are clearly confused on which party is on a righteous crusade. Has it occurred to you that CPT Fahs may have been trying to do Modder a favor by approaching him off the books rather than writing him up on each complaint? If the Captain had ignored the complaints then under current rules and regs he would have been the one at fault. You also are assuming that those who came to Modder for counseling both came to him of their own accord and had a choice in who they could seek out for advice. Sometimes seeing the Chaplain is in the form of a strong suggestion to a direct order from a CO. I doubt this school had more than one on site. The military currently has a problem with more than a third of the Chaplains being Evangelicals with less than 5% of their population identifying as such themselves. Frankly it is easier to become a DD from schools like Liberty and ordination is also more easily obtained from many of the Evangelical denominations.

    Also from the Military Times article, “When confronted with the complaints, Modder told his command that “he will not follow Navy policy if it conflicts with his faith.” He has went for 19 years following policy and wishes to now take this stance in a military that is under mandatory draw downs. In the last year officers who have risen from the ranks with spotless records have been forced out. What do you think should happen to one who was able to become an officer without paying military dues and who then refuses to follow orders?

    I would argue that regardless of some caterwauling from Murdoch’s tabloid TV it does not inform the Georgia RFRA debate one whit.

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