GOP State Convention Delegates Will Consider RFRA Resolutions. Here Are the Implications of Their Votes

At next week’s Georgia Republican Convention in Athens, delegates will be asked to consider a number of resolutions, among them one in support of Georgia’s Religious Freedom Restoration Act. Eleven of fourteen GOP District conventions passed resolutions urging the Georgia House to pass Senate Bill 129 without any amendments, and the resolution under consideration next week is expected to mirror that message.

We understand that there will be an effort to have the resolution modified so that it would include language prohibiting discrimination and protecting the welfare of children. That was the intent of an amendment to SB 129 offered at the end of the legislative session:

“Compelling governmental interest” includes, but is not limited to, protecting the welfare of a child from abuse or neglect as provided by state law and protecting persons against discrimination on any ground prohibited by federal, state, or local law.

Once that amendment from Rep. Mike Jacobs was added, the measure was laid on the table, and no vote was taken in the Judiciary Committee or full House on the underlying bill.

What would be the effect of adding the amendment proposed by Rep. Jacobs to Senate Bill 129? As worded, it would prevent a religious person from using Georgian’s RFRA as a reason to refuse service to a gay couple who wanted to get married. To understand why, take a look at this page on the city of Atlanta’s website. It states that “All City of Atlanta non-discrimination laws prohibit discrimination based upon sexual orientation and gender identity,” including

Decisions about selection or treatment of customers by businesses that provide goods or services to the public (often referred to as “public accommodations”) in Atlanta, including hotels, restaurants, bars, banks, theaters and amusement parks.

As this is a local law, it would be considered a compelling government interest under RFRA, and therefore make it impossible for a business owner to cite the Religious Freedom Act as a reason to refuse service to a gay couple based on the owner’s religious views. Likewise, it would prevent an employer from using RFRA as a reason to not hire a LGBT person.

Of course, there are consequences for passing Senate Bill 129 without amendments as well, and once again local ordinances like the Atlanta measure referred to above are a part of it.

Assuming a plain RFRA were passed, a restaurant owner in the city of Atlanta could refuse to let their restaurant to be used for a reception following a same-sex wedding, citing religious beliefs and the state RFRA. At that point, there would be a conflict between state law and city ordinance. Under Georgia law, the city would be forced to defend its ordinance in court, rather than the business owner who refused service. While it can’t be predicted if the city or state ultimately would prevail in defending its position, there could be considerable time and expense by the city spent defending its ordinance in court, especially if the measure were to be appealed.

Other cities and counties could decide against adding anti-discrimination protections based on a desire to avoid a potential RFRA lawsuit, and the expense it would entail. For those supporting civil rights at the city or county level because of the difficulty in passing an anti LGBT discrimination measure statewide, a RFRA without amendment would represent a major setback for their movement.

A CBS / New York Times poll released Wednesday showed that nationwide, 69% of Republicans and 73% of Tea Party supporters say businesses should be allowed to refuse service to same sex couples if it violates their religious beliefs, compared to 51% of all adults. In the same poll, 34% of Republicans thought that same sex couples should be allowed to marry, compared to 57% of all adults.

Governor Nathan Deal has stated his support for an anti-discrimination clause in the final version of the bill. It will be interesting to see if the grassroots of his party agrees with him.

36 comments

  1. Jared says:

    It will indeed be interesting. Given the results from the district conventions, I suspect that Deal, Jacobs, etc. are out of touch with the grassroots, but we shall see. I for one will be supporting the RFRA resolution and opposing any modifications.

  2. Enjoy the Silence says:

    “While it can’t be predicted if the city or state ultimately would prevail in defending its position, there could be considerable time and expense by the city spent defending its ordinance in court, especially if the measure were to be appealed.”

    Here is the thing. Everyone gets caught up focusing on gay marriage when it comes to RFRA. But take a look at that line in your posting above. What would prevent a city or county from getting caught up in spending boatloads of taxpayer money defending its ordinance regulating ritualistic animal sacrifice in residential neighborhoods, its noise ordinance, its regulations on sidewalk vendors, or any number of other ordinances that apply equally to everyone currently?

  3. Three Jack says:

    Why not just hand out guns and all delegates can just shoot themselves in the head. It is hard to imagine how out of touch the GOP has become with reality. Sticking with this religious zealotry as a party platform equates to political suicide.

  4. gcp says:

    Could we maybe get a vote on moving from an income tax to a consumption tax, also a vote on casino gaming, mj legalization, and just maybe legislation to allow more freedom as to who can sell cars and alcohol in this state?

  5. saltycracker says:

    Put specific exclusions on the business license and post it on the front door.
    Baptist. No alcohol would help me decide before entering.

    I’m still for the discrimatory – BBQ places that serve only pork and most importantly – men: no shirt, no service……women: no shirt, free beer.

    Seriously, This is not a top priority for a Republican short list unless the idea is to dodge the big issues.

  6. A Dapper Gentleman says:

    “We understand that there will be an effort to have the resolution modified so that it would include language prohibiting discrimination and protecting the welfare of children. ”

    McKoon has repeatedly stated that homosexuals are not a protected class in Georgia, and as such, we are free to legally discriminate against them. Will this modification make homosexuals a protected class in Georgia?

    • Jon Richards says:

      The actual effect of the amendment I cited would be to prevent someone from using the Georgia RFRA as a reason to discriminate if such discrimination had been prohibited by federal, state or local law.

      It will not make homosexuals a protected class outside of the cities or counties where local ordinances have been passed, such as in Atlanta.

  7. FranInAtlanta says:

    What activist Republicans support and what regular Republicans support are NOT the same. Look at the number of votes Broun received in the Republican Primary for Senator, and my take is that Jack Kingston hurt himself by voting with Broun in the House as much as he did.

  8. jrapia says:

    Whether or not declining to participate in an event is properly labeled “discrimination,” as the Left contends, this proposed amendment could disadvantage people of faith in other ways as well. Consider the Green family in the Hobby Lobby case, who refused to pay for abortion-inducing drugs. If the federal RFRA exempted “discrimination,” the government could and would argue that this adherence to moral principle constituted discrimination against women and must be disallowed. Why should the Republican Party come down on the side of crushing people who hold the “wrong” positions on social issues? Does the Republican establishment agree with Hillary that deep-seated religious positions must be changed?

    • John Konop says:

      ……Polling data shows 59%believe RFRA was not needed, with 30% saying it was. 48% of Republicans said the act was needed, and 38% said it was needed……..

      http://www.21alive.com/news/local/New-Poll-Show-6-in-10-Hoosiers-Believe-RFRA-was-Uneeeded-300090871.html

      The above is polling data from a RED STATE Indiana….By you defining this is a right/left issue….you are making the tent smaller….less than 50% of Republicans think the bill is needed…let alone the bad general numbers…The Dems hope you keep talking….You are the same guys that got Obama elected twice….the moment it becomes about silly issues like Obama not being an American over real policy…ie like this issue…Hillary wins.

  9. amor patriae says:

    If the GOP majority (not necessarily the loudest voices in the room) doesn’t begin to make itself heard clearly, we are on the way out, my friends. I’ve drunk my share of Tea and I read my Bible, and I still cannot fathom why we spend so much time debating and creating legislation to address issues that are not relevant. Can someone provide a concise explanation of the legal necessity for RFRA?

  10. Josh McKoon says:

    Ok let’s try to address a few of the issues here:

    1. The employment/housing/public accommodations hypotheticals involving LGBT individuals will not occur under SB 129 as passed the Senate. The reason may be found at Lines 50-52:

    “A person whose religious exercise has been burdened in violation of this chapter may
    51 assert that violation as a claim or defense in a judicial proceeding and obtain appropriate
    52 relief against government.”

    The key words being “against government” — a lawsuit brought under a local ordinance like the one Jon has described above would be brought by private individuals against another private party. RFRA may not be asserted as a defense in an action unless “government” is a party. So you see these hypothetical situations will never be realized in reality under the language of SB 129 as passed the Senate.

    That language by the way is fundamentally different than the language of the RFRA bills that passed initially in Indiana and Arkansas, which both would have authorized parties to assert a RFRA defense in a case in which the government was not a party.

    2. Jon states that “We understand that there will be an effort to have the resolution modified so that it would include language prohibiting discrimination and protecting the welfare of children.” While I am sure it is not his intention to do so, that sentence would leave the casual reader with the impression that the language of the federal RFRA permits discrimination and in some way threatens the welfare of children. Not to sound like a broken record, but in the half century or so of jurisprudence reviewing laws that burden religious liberty interests no court has ever ruled that RFRA shields discriminatory conduct or conduct that would threaten the welfare of a child.

    In fact courts have routinely ruled that protection of child welfare, like other laws that provide for public safety, articulate a compelling government interest so that even in a situation where someone made the absurd argument that their religious belief allowed them to mistreat a child the Court would be able to quickly dismiss such an argument under RFRA analysis.

    Former Attorney General Mike Bowers, paid an undisclosed sum by RFRA opponents to advocate for defeat of SB 129, had to admit before the House Judiciary Committee that there was not a single reported case of RFRA being interpreted to protect discrimination or excuse criminal conduct.

    3. Putting aside the fact that the amendment language is unnecessary, what about the argument made by others that we should put the language in as a “feel good” measure that would assure the world at large that this bill is not about discrimination?

    Look at the language of the amendment:

    “Compelling governmental interest” includes, but is not limited to, protecting the welfare of a child from abuse or neglect as provided by state law and protecting persons against discrimination on any ground prohibited by federal, state, or local law.”

    The key phrase here is “on any ground” — so a county commission passes an ordinance which states:

    “Be it Enacted by the Columbus Consolidated Government that discrimination of any kind based on religious grounds is unlawful and to the extent a defense is available under the Georgia Religious Freedom Restoration Act it will be unavailable within the legal jurisdiction of Columbus-Muscogee County”

    That ordinance would invalidate RFRA protection for any purpose in Columbus. It is discriminatory to close on a Holy Day, for example. This language is so overly broad that it would provide a legislative veto to every local government for RFRA. And since the entire purpose of RFRA is to restrict the ability of state/local governments to interfere with free exercise, this would defeat the purpose of the bill. That is why most legislative language is vetted and discussed before being brought forward for a vote — unfortunately the Jacobs amendment was essentially written on the back of a napkin and thrown out for consideration with no apparent thought given to the perhaps unintended consequences.

    4. Republican Party activists have made it clear they want to see the language of SB 129 move forward as it passed the Senate. The State Convention will have its opportunity to weigh in next week. But if the Resolutions Committee votes out language similar to that passed in 11 of the 14 Congressional District Conventions and then a small minority offers this amendment, knowing these facts, it will be that minority that is responsible for the media narrative that will surely follow, not the vast majority of Georgia Republicans.

    5. There has been much said here and elsewhere about the Republican Party being a “big tent” and respecting the various groups that make up the coalition we call the Georgia Republican Party. While RFRA may be unimportant to people who consider themselves, “fiscally conservative but socially liberal” the same consideration should be given to social/religious conservatives within our “big tent” as others.

    • John Konop says:

      ….socially liberal”………..

      Once again this is the logic that will kill the party in the future. The 2 drivers of the modern conservative movement would not agree that they are “Socially Liberal”. Barry Goldwater and William F Buckley would claim that this is a privacy issue and warned about politicians like you. Both were against the social police from the right and the left. It is intellectual laziness combining Libertarian views with liberal views….Is a key contributor making the tent smaller in the future…If you throw out Libertarian leaning people it will be a shrinking a party….

      From Goldwater:

      “Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.”

    • Jay Bookman says:

      This is an odd forum in which to do this, Josh, but since you’re here and I’m here, and I’m curious, about your Point One:

      You write that under the language of your bill, RFRA suits can only be filed against government, not against individuals. Therefore, “these hypothetical situations will never be realized in reality under the language of SB 129 as passed the Senate.”

      But that’s ducking the issue, isn’t it?

      Under the very real example cited above, somebody required by the Atlanta ordinance to provide service to a gay couple could, under your version of RFRA, file suit against the city of Atlanta — not against individuals, but against the city — seeking to overturn that ordinance as an infringement on their religious freedom, correct?

      In short, your version of RFRA becomes a tool allowing someone to discriminate on the basis of sexual orientation, correct? And not just on service, but on employment, on health-insurance coverage for gay married couples, etc.

      If that’s incorrect, I would very much like to know.

    • Jon Richards says:

      Thanks for contributing Josh.

      Regarding point 1, what Jay said. When the discrimination compliance officer (or whoever is in charge of fining someone who violates Atlanta’s anti-discrimination laws) levies a fine against the vendor who will not provide service to the LGBT couple, the vendor goes to court against the city, claiming his religious freedom trumps the city’s ordinance. I don’t know how such a lawsuit would end up, although given hierarchies, it would seem the state law would trump the local ordinance.

      Point 2 is well taken. The amendment would not prohibit discrimination, but would make it impossible to use RFRA as a defense in a discrimination case.

      Point 3: I’ve said in the past that the amendment is overly broad. While it’s possible that a local government could pass an ordinance such as you suggest, I’m bringing up an example that already exists.

    • Three Jack says:

      Thanks for the open debate between Josh and Jay, very informative.

      Regarding #5 posted by Sen McKoon which indicates a need to give consideration to social/religious ‘conservatives’. When did this not happen? From the perspective of a formerly loyal party member and county officer, I can never remember fiscally interested members getting recognition anywhere near that of the religious folks. Thus the reason many of us have stopped participating leaving a room full of religious zealots determined to strike the final nail in the proverbial coffin.

      Instead of wasting as much time as has already been wasted trying to nuance rights already provided in the Constitution, why not do something bold like tax reform. You have your amendment against gay marriage. You have placed numerous restrictions on abortion. You have eroded basic worker rights in favor of corporate donors. You have ignored ethics laws and fired those who dared to challenge your lack of ethics. When are GOPers going to actually do GOPer stuff that falls under the category of fiscal conservatism?

  11. Josh McKoon says:

    Jay,

    If the individual(s) seeking enforcement of the nondiscrimination ordinance filed suit against the violating party, then RFRA would not apply.

    If the government filed suit, or if the violating party sued the government seeking to invalidate the ordinance on RFRA grounds, then a court would apply a RFRA analysis. As SB 129 as passed the Senate already states:

    “Courts have consistently held that government has a fundamental, overriding interest
    35 in eradicating discrimination.”

    So a local ordinance the purpose of which is to prevent/eliminate discrimination would be deemed a compelling government interest under a RFRA analysis. The only open question then would be whether or not that ordinance was the least restrictive means of achieving that interest. Looking at Bob Jones v. United States, an analysis under a strict scrutiny standard challenging a government anti-discrimination measure, the U.S. Supreme Court sided with the government. It is hard for me to conceive of a Georgia court going against that analysis. So no I do not think there is any ducking of the issue.

    I do think, depending on the Supreme Court decision on the definition of marriage this summer, we can expect a wider ranging and lengthy debate on religious liberty interests much in the way Roe v. Wade paved the way for decades long struggle over legalities related to abortion. I think many commentators will look back at SB 129 as passed the Senate and reflect on the middle ground it occupied as this debate continues.

    • Jay Bookman says:

      But apparently, you see a major distinction between the law saying “Courts have consistently held that government has a fundamental, overriding interest in eradicating discrimination” and saying point blank that “government has a fundamental, overriding interest in eradicating discrimination.”

      The first is an observation, the second is a statement of law.

      • anthonymkreis says:

        Local civil rights enforcement *are not* actions brought forth by private parties. The complaint is made by a private citizen, however Georgia law does not permit local laws to be enforced by private rights of action. As a consequence, the enforcement of a local civil rights law is done exclusively through the government. In Atlanta, for example, it would be done through the Atlanta Human Rights Commission. The civil penalty goes to the government and the individual discriminated against recovers no monetary damages. It is no different than how a municipality enforces zoning regulations or other ordinances. As a result, RFRA would absolutely apply to a local nondiscrimination law’s application, if raised as a defense. That would be a different story if there was a private right of action provided under state statute.

  12. Josh McKoon says:

    There is an enormous difference in recognizing what Courts have done and handing local governments a legislative veto of a state law.

    • John Konop says:

      In summary:

      Your bill will hurt business via protest from companies/events like Salesforce, NCAA….., create legal work for lawyers and nobody can really tell us why we need it. This is a fools parade……Between your lack of support for transportation needs and this….you have the cornerstone on being the anti job leader for Georgia. What Michael Brown did for FEMA could be compared to what you are doing for jobs in Georgia….

      Campaign Slogan:

      McKoon The Job Stopper

  13. Jay Bookman says:

    “There is an enormous difference in recognizing what Courts have done and handing local governments a legislative veto of a state law.”

    ——-

    So … suspicions confirmed.

  14. Josh McKoon says:

    Jay,

    Can you name a single law passed by the General Assembly that local governments can nullify in whole or in part by ordinance?

    • Jay Bookman says:

      Interesting.

      That question is valid ONLY if SB 129 is an effort to overrule local anti-discrimination ordinances.

    • Enjoy the Silence says:

      Josh, can you name a single generally applicable law that allows people to have a more favorable standard applied to them merely because they say one should be applied to him or her?

  15. Jay Bookman says:

    Senator, I didn’t mean to get involved in a public debate with you here. I just saw a chance to get some clarification, and I’ve gotten that. I appreciate it.

    But from my end, it’s as if you’re describing a large grass-eating mammal with horns that gives a lot of milk, says “moo” and appears in Chic fil A ads, then getting angry with anybody who dares to suggest that you’ve described a cow.

    It sure looks like a cow to me.

  16. Josh McKoon says:

    No it isn’t. Your non response to my question makes it quite clear — the amendment would be an unprecedented mechanism to allow local governments to nullify an act of the General Assembly.

    As to the “cow” you are looking for, that is the Marriage & Conscience Act which Gov. Jindal has indicated he will put forward in Louisiana next year. The fact he is talking about another bill when Louisiana already has RFRA is another piece in the mounting pile of evidence that RFRA was not designed for and is not in reaction to any LGBT issue.

    • Enjoy the Silence says:

      Josh, you do realize this applies to state government too, right?

      Also you realize that this allows any person (including corporations) to nullify any generally applicable STATE law, right?

  17. benevolus says:

    I would say that it is pretty clear that their are two (or more) groups whose “rights” are in conflict. I think we, as a society, have staked out some territory for religions to operate within relatively unencumbered. But when “religion” ventures outside of that territory, those special privileges no longer apply. Those actors must abide by the same rules as those outside the religious boundaries. A bill like this is an attempt to expand that territory.

    It seems a stretch that having to serve a gay customer somehow restricts the practice of one’s religion any more than driving on the same highway would. It may be distasteful to some, but that’s not enough.

  18. amor patriae says:

    I am still looking for someone to explain the LEGAL necessity of this proposed legislation — with or without the amendment.

    It is my understanding that the Free Exercise Clause in the First Amendment addresses this issue: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” And for those who think this leaves wiggle room at the state and local level, the Supreme Court held in Cantwell v. Connecticut (1940) that, due to the Fourteenth Amendment, the Free Exercise Clause is enforceable against state and local governments.

    In other words, our religious freedom is ALREADY PROTECTED. It hasn’t been abridged, removed or otherwise infringed upon.

    RFRA is an obscene effort to (re)establish the institutional infringement of the civil rights of certain groups by others. Why don’t we just bring back Jim Crow while we’re at it? Hey, we could even make it so that only landowning white men could vote! Surely that’s the platform we need to get a Republican in the White House!!!

    • Three Jack says:

      agreed.

      Putting this in perspective, how many people in McKoon’s district have had their religious freedom challenged thus resulting in the need for this new law. In the state of GA?

      Now how many of McKoon’s constituents are adversely affected by the tax code in GA? My guess, far more peeps feeling the pain of excessive taxation moreso than restrictions on their right to practice religion. The state legislature and GOP need to reset priorities.

    • saltycracker says:

      Land owning white men or unemployed illegals seems to be our directions…..gotta love it….

  19. smithjb1980 says:

    The upside to passing a resolution in regards to this would be minimal at best. The downside would be great in terms of negative press. So why self inflict a wound? This is NOT an important bill to anyone except a few lawyers in Atlanta. Let’s pass a resolution focusing on how we can stop the tax increases that Republicans at ALL levels keep proposing. That is a discussion worth having!

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