In his continued statewide tour to press for a RFRA without civil rights protections, Senator Josh McKoon spoke to the Whitfield County Republican Party this week. His case for RFRA without an exemption for civil rights laws from religious challenges has been seriously damaged by events in Indiana and Arkansas. Real economic harm came to Indiana until legislators amended that state’s religious freedom law to ensure that local nondiscrimination laws were not jeopardized by religious objectors.
SB129, unamended, is a real threat to civil rights and to Georgia’s economic prosperity. As a consequence, the supporting legal and policy arguments require exacting scrutiny. The pro-RFRA rationales presented to the Whitfield County GOP are highly suspect.
First, Senator McKoon notes that a religious group was kicked off campus at Savannah State for hosting a foot washing ceremony that the University deemed “hazing.” By any reasonable analysis, foot washing is not hazing and the organization’s removal was wrong. The group sued and was successfully reinstated. Senator McKoon claims that no group should have to go to court in a similar situation and RFRA could prevent that. Statutory rights are not self-executing. Like any law creating a private right of action, RFRA requires litigation to enforce. That’s how we got Hobby Lobby v. Burwell challenging the Obamacare contraception mandate and Holt v. Hobbs challenging Arkansas’ beard prohibition for Muslim inmates. RFRA does not discourage litigation– it creates it.
Second, the Senator says that he doesn’t want to immunize local nondiscrimination ordinances from religious lawsuits because that would allow municipalities to trump RFRA and create patchwork religious liberty protections. The solution to this is simple: let’s enact one comprehensive piece of statewide civil rights legislation. Why isn’t this on the table in a serious way?
Third, Senator McKoon often points to Arkansas’ RFRA as a model. He does so in this report. What goes unsaid, however, is that Arkansas rabidly anti-gay legislature stripped all LGBT rights protections from local jurisdictions. RFRA, as a consequence, could not gut local civil rights laws because the legislature in a mean-spirited act of animus killed every single LGBT inclusive civil rights ordinance in one fell swoop.
On a related note, Senator McKoon makes much of other states’ attempt to apply RFRA to suits between private parties– an blatant attack on civil rights laws– to distinguish SB129 from other states’ legislation. Under federal law and in most states, a person whose civil rights have been violated by a private person can sue that party under various civil rights statutes. Georgia has no public accommodations or employment civil rights protections– we are only one of three states to have virtually no civil rights laws.
As a consequence, Georgia municipalities have taken the lead where the General Assembly has failed. Localities cannot, however, create private rights of action for civil rights violations. In other words, municipalities must enforce civil rights violations. The private parties distinction doesn’t matter in Georgia. Thus, religious persons could challenge local government civil rights protections if RFRA was enacted. As many grassroots supporters of SB129 have touted, this is a feature of RFRA– not a bug.
Finally, Senator McKoon suggests that SB129 provides a “bright line” rule for government. By definition, SB129’s use of strict scrutiny is not a “bright line” or a rule it is a standard of review. How courts will apply it is unknown, which is exactly why civil rights laws must not be left open to attack by religious objectors.
All of this is not to say that there are not valid arguments to support RFRA or religious exemptions in particular instances. These arguments, however, are terribly unpersuasive.