By anthonymkreis

A Festivus Greeting

Dear Friends,

Happy Festivus! As is Peach Pundit tradition, thanks to Charlie, I greet you this morning to mark this glorious holiday of complaints and brute strength. This year, however, we have more reason to celebrate since Festivus has arrived at the Gold Dome in a fabulous array of colors.

And so, from my home to yours, and my Twitter account to yours, I wish your aluminum poles rise high, your feats of strength robust, and your grievances aired- but few.

Enjoy the day and relish in the good natured humor that is sure to follow.

Yours in the Human Fund,

Anthony

Julian Bond’s Georgia Legacy

Civil rights advocate Julian Bond lived an accomplished life committed to the expansion of justice and equality for all. His death on Saturday is a loss for the nation, but particularly for Georgia.

A native of Nashville and the son of a college president, Bond attended Morehouse College in Atlanta. It was at Morehouse that Bond helped found the Student Nonviolent Coordinating Committee, launching himself into the Civil Rights Movement. Bond worked to end segregated facilities in Atlanta. His first arrested came after an attempt to integrate a cafeteria at Atlanta City Hall. Later in life, Bond served as chairman of the NAACP.

In this AJC photo, Julian Bond sits at his desk in the Georgia House chamber after the legislature refused to swear him in.
In this AJC photo, Julian Bond sits at his desk in the Georgia House chamber after the legislature refused
to swear him in.
After the Voting Rights Act’s enactment in 1965, Bond was one of eight black candidates elected to the Georgia House of Representatives. White members of the Georgia House, however, were unwilling to welcome Bond into the chamber. The Georgia House overwhelmingly refused to seat him, citing his opposition to the Vietnam War and accusing him of disloyalty. They declared the seat vacant and ordered a special election, which Bond won. The stalemate ended with an unanimous decision by the United States Supreme Court ordering the legislature to seat him in 1966 in Bond v. Floyd.

He spent 20 years in the Georgia General Assembly. Among his many legislative achievements was the creation of a majority-black congressional district in Atlanta. In 1968, he was the co-chairman of a racially integrated delegation to the Democratic National Convention. It was at that Convention, he became the first African-American nominated for vice president of the United States. The nomination was a gesture, however, because Bond was only 27-years-old. Despite the symbolic nature of his floor nomination, Bond saw it as an opportunity to bring light to issues of racism and poverty in the United States. He was successful. It was that moment which would eventually lead to him to become the first president of the Southern Poverty Law Center. Read more

A Few Thoughts About the Pastor Protection Act

This weekend, the AJC reported that Speaker Ralston is backing legislation to be sponsored by Rep. Kevin Tanner concerning marriage solemnization refusals by clergy. The legislation is a response to the Supreme Court’s recent ruling that brought same-sex marriage to Georgia. In short, the bill is aimed at prohibiting any attempt to force clergy to marry same-sex couples.

The legislation is not legally necessary. The Supreme Court’s recent decision does not undermine the First Amendment right of clergy to not perform marriages inconsistent with their faith. Consider the example of a rabbi who will not marry interfaith couples.  That rabbi has always had the protection of the First Amendment to refuse marrying interfaith couples notwithstanding those couples’ constitutional right to marry civilly. The same principle applies in the context of same-sex marriage. Same-sex couples in Georgia have a constitutional right to a state marriage license, but just like the interfaith couple, have no constitutional right to a religious solemnization ceremony. The law is the same today as it was prior to Obergefell.

That being said, there is nothing new or usual about codifying in statute what is widely known to be constitutionally protected. Each time state legislatures voluntarily enacted same-sex marriage, those marriage equality statutes included a reaffirmation of clergy rights. Here are a few examples:

New York (2011):

“A refusal by a clergyman or minister… to solemnize any marriage…shall not create a civil claim or cause of action.”

Maryland (2012):

“… an official of an order or body authorized by the rules and customs of that order or body to perform a marriage ceremony may not be required to solemnize or officiate any particular marriage or religious rite of any marriage in violation of the right to free exercise of religion guaranteed by the First Amendment to the United States Constitution and by the Maryland Constitution and Maryland Declaration of Rights.”

Illinois (2013):

“Nothing in this Act shall be construed to require any religious denomination or Indian Nation or Tribe or Native Group, or any minister, clergy, or officiant acting as a representative of a religious denomination or Indian Nation or Tribe or Native Group, to solemnize any marriage.”

This is unlikely the only piece of legislation to be introduced in the General Assembly as a response to the Supreme Court’s constitutionalization of same-sex marriage. However, this is likely the least controversial of what is to come.

Strip Discriminatory Tax Exemptions Now

Last week’s landmark decision in Obergefell v. Hodges that expanded the fundamental right of marriage to all same-sex couples was historic. For years, LGBT rights advocates worked tirelessly to end state discrimination and their labor bore fruit in an eloquent and readable opinion by Justice Anthony Kennedy. Some vestiges of government-backed discrimination, however, remain and must be swiftly addressed.

It is time we strip discriminatory primary schools in Georgia of their tax-exempt status and state benefits.

First, let’s turn to the historical precedent for this move. The Internal Revenue Service in 1970 initiated a policy that tax-exempt statuses would no longer be conferred on private educational institutions that discriminated on the basis of race. At the time, Bob Jones University in Greenville, South Carolina, prohibited the admission of applicants that were in interracial relationships, banned students from marrying a person of another race, and punished those that advocated for interracial marriage. The IRS determined that Bob Jones’ policies ran counter to the underlying policy aims of tax-exempt law— to bolster charitable organizations that benefit of society. Subsequently, it stripped Bob Jones of its tax privileges.

Bob Jones challenged the IRS’ action and sued claiming the University’s religious freedom rights were violated. In 1982, the Supreme Court rejected Bob Jones’ claim noting, “racial discrimination in education is contrary to public policy.” This fundamental principle, of course, had been true of public schools since Brown v. Board of Education in 1954. The Bob Jones decision further expanded this basic tenant of the American social contract to private higher education.

In Georgia today, hundreds of religious schools in Georgia ban openly LGBT students. These schools are operating segregated institutions that deprive young LGBT Georgians access to quality education. Discriminatory schools impose harmful stigmatization on these young people and demonstrate to their peers an unacceptable level of tolerance for anti-LGBT animus. As LGBT children are often vulnerable to adverse mental health issues stemming from exposure to bias, humiliation, and ridicule, these private schools inflict a tremendous amount of untold harm. Swift action on the part of the IRS to strip anti-LGBT schools of tax benefits is warranted.

Worse yet, well over 100 of these private schools recieve state government collected scholarship funds. In this sense, the government advances anti-LGBT religious schools’ discriminatory policies by doubly subsidizing them. In 2015 and in wake of Obergefell, this simply cannot stand. While it would be condemnable in any event that a school would ban a class of persons from its student body, the government must never fund it. Full stop. The Georgia General Assembly must pass legislation next session prohibiting the use of government sponsored scholarship funds to discriminatory institutions.

Are Mike Pence’s RFRA Blues a Peach State Warning?

An Indiana poll commissioned by the CEO of Angie’s List suggests the Hoosier state’s version of the Religious Freedom Restoration Act has caused Mike Pence quite a headache and may throw a wrench in his reelection plans. The poll, conducted by a Republican pollster, shows that 54% of those surveyed would vote to oust Governor Pence.  His favorability rating sunk to 34%, dipping an additional 6 points since they took an initial nosedive in March after the governor signed RFRA into law.

Pence and Indiana legislators were later forced to back a legislative fix disallowing religious challenges to state and local anti-discrimination laws and ordinances to stave off a growing national boycott of the state. The Indiana amendment specifically disallowed RFRA’s invocation to justify discriminating on the basis of sexual orientation or gender identity.

Not all of Pence’s woes are RFRA related, however. Polling also shows dissatisfaction with the governor’s education policy. The pollster’s main takeaway was that “even though RFRA is no longer making headlines, it has not been forgotten. This may be one of those situations where a sleeping giant has been kicked and is now wide awake.”

The poll also revealed that a majority of Hoosiers (54 percent) support adding sexual orientation and gender identity to Indiana’s civil rights laws. For comparison, 72% of Georgians supported banning employment discrimination on the basis of sexual orientation in August 2013.

RFRA Madness

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.

U.S. Supreme Court to Hear Georgia Race Discrimination Case

Today, the U.S. Supreme Court agreed to hear the case of Georgia death row inmate Timothy Tyrone Foster. Foster, who is black, was convicted in Floyd County of the 1986 murder of a white schoolteacher, Queen Madge White. During jury selection, prosecutors removed all four black prospective jurors through preemptory challenges. When questioned as to their motivations for removing the black jurors, prosecutors presented race neutral justifications. Later evidence from the prosecution’s notes, however, suggest something more nefarious may have been afoot.

As SCOTUSblog describes, the prosecutors’ records strongly indicate the jurors’ removal was racially motivated. Despite the new evidence, the Georgia Superior Court rejected the race discrimination claim and the Georgia Supreme Court subsequently denied to hear Foster’s case. Foster has asked the U.S. Supreme Court to answer whether the “Georgia courts err[ed] in failing to recognize race discrimination…in the extraordinary circumstances of this death penalty case?”

Timothy Tyrone Foster’s petition to the Supreme Court.

Attorney General Olens’ brief in opposition.

Openly Gay Minister Running for the Georgia House

Over at the Georgia Voice, Dyana Bagby reports that Josh Noblitt will run for the House District 59 seat, which will be vacated by Margaret Kaiser when she runs for Mayor of Atlanta. If successful, Noblitt could be the first openly gay man elected to the state house. He currently serves as the social justice minister at St. Mark’s United Methodist Church.  The Georgia Voice notes that attorney and craft beer aficionado Eric Teusink may be mulling a bid, as earlier reported on Peach Pundit. Attorney David Dreyer has already tweeted his intentions to run for Kaiser’s seat.

The Path of Reconciliation

Social change inevitably comes with growing pains. The recent debate in Georgia over religious liberty and LGBT civil rights is no exception. Indeed, the discourse under the Gold Dome exposes our state’s deep and troubling divide.

In the last few months, the rift between various communities has revealed a stunning lack of understanding and a lack of trust between fellow Georgians.  The volleying ad hominem attacks, snide characterizations, patronizing comments, subtle jeers, and self-serving agitations that have accompanied the debate over the Georgia Religious Freedom Restoration Act has done nothing for the people of Georgia. The degree of social strife taking root in our state is simply unsustainable.

If this deep-seated animosity continues to spread, the consequences will be damning. What businesses will relocate to Georgia if they fear penalization for speaking out on civil rights? Why would our best and brightest want to stay in a place where year-after-year we reopen old scars and fight the same tired battles? Why would others want to move to Georgia when we have demonstrated hostility to the basic principles of equality and tolerance?

The friction will not go away if we pretend it does not exist. It will not go away if Senate Bill 129– passes. It will not go away if SB 129 languishes in the House until Sine Die. Sitting idly by while the fabric of our society tears will wreak havoc with Georgia’s national reputation. No one will escape the devastating economic, social, and political consequences of our failure to act. It is time to push the pause button and commit to a better path forward.

Georgians need a vehicle for reconciliation.

We need a venue that promotes de-escalation and thoughtful dialogue. Civil rights history provides a model. Throughout the 1950s and 1960s, states struggling with contentious civil rights environments formed commissions to serve as a sounding board for the concerns of racial minorities. Then as now, the opportunity to be heard by a body of legislative leaders and community stakeholders can help diffuse tension by bringing people together to seek common ground.

A commission looking at the status of civil rights in Georgia holds great promise and for more than just the LGBT community. A special civil rights commission could look at the impact of discrimination on the basis of race, sex, national origin, religion, veteran status, familial status, disability, or criminal history in Georgians’ lives and explore potential remedies. A healthier debate on SB129 belongs in this broader inquiry.

Georgia’s civil rights laws are shamefully nonexistent. There are no broad employment or public accommodation protections under state law. Georgia joins only Alabama and Mississippi in having no statewide employment nondiscrimination law, leaving even victims of race, sex, or religious discrimination without any legal recourse. In 2015, that is a disgrace. It is time to honor Georgia’s place as the cradle of civil rights and do what should have been done 50 years ago.

What might a study group ultimately achieve for LGBT rights? For that, we should turn to Utah. This month, Utah enacted housing and employment protections banning discrimination on the basis of sexual orientation and gender identity. Protections for religious objectors were also included. Legislators and community leaders crafted legislation through deliberation and compromise that was supported by the Mormon Church, the Catholic Diocese of Salt Lake City, and LGBT organizations, among others. If Deep Red Utah can make good on guaranteeing basic LGBT nondiscrimination safeguards alongside religious liberty protections, so can Georgia.

Georgia has a ripe opportunity to be a shining example for the rest of the country. Here is a reasonable path to move forward. We need only muster the courage to make it a reality.

Our Southern Dilemma

On Monday, the Senate Judiciary Committee moved religious liberty legislation forward that alarms LGBT Georgians for its potential to embolden anti-gay animus. I held hope that reasonable minds would block litigious, bad faith actors from abusing religious liberty to undermine civil rights. In a prior hearing, it looked as if nondiscrimination principles might prevail. Alas, it was a flash in the pan.

The new language was not publicly released in advance of Monday’s hearing. There was no amendment to exempt civil rights laws from religious objections. There was no testimony. There was no debate. The bill was hurried through while a senator, who may well have brought perspective to the legislation, was in the restroom. Once again, a legislative body ran roughshod over Georgia’s minority communities.

There was no room at the table for us.

For LGBT Southerners, this is just another day in the life of a second-class citizen. Like all LGBT Georgians, my mere existence is a legally permissible ground for various forms of discrimination. That is a heavy burden I carry every day, made easier only by the liberation of my education and having a platform to speak to my fellow Georgians. Not all are so fortunate.

There are no state laws protecting LGBT state employees from wrongful termination or hostile work environments. Georgia is one of only five states that fail to protect any citizens from invidious discrimination in public accommodations. Same-sex couples cannot marry the person they love. And even if the Supreme Court strikes down Georgia’s marriage laws, newlyweds can return from their honeymoon to a pink slip. Private workplace discrimination is completely legal in Georgia, despite overwhelming support from Georgians to ban it. It is undeniable— the place I love and call home does not love me back.

At the same time, our children suffer. Over 100 religious schools in Georgia ban openly gay students, yet hold out their hands for government collected scholarship funds. LGBT homelessness among young Georgians shunned by their own families is appallingly high. Being an LGBT child is hard enough, always questioning your own self-worth. It is doubly hard for children who are torn away from their communities because of irrational prejudice, sometimes subsidized by the state.  Stigmatization takes a grave toll on their mental health, far too often leading to drug abuse, addiction, depression, and suicide.  Who is looking out for our kids? Who in power is pushing through legislation with fierce urgency to guarantee they will have an opportunity to achieve success?

I can no longer bear being lectured that there is no discrimination in Georgia. Let us remember invidious discrimination against my community is legal in this state. There are, consequently, no statistics to turn over to prove its existence. I have seen people ejected from businesses because they’re gay. LGBT persons are often victims of insults in the public square. These moments are harrowing experiences that never grow easier no matter how many times you have endured them or how old you are. Hopelessness can take root if you do not quickly fight back tears, forgive, and press on for a better day. The daily struggles of my friends and neighbors are erased from the debate under the Gold Dome. They deserve better. Georgia deserves better.

More than just a fear of losing a job or being denied service, many LGBT Georgians live in constant fear for their very lives.  The LGBT community has taken steps to fight back, securing local anti-discrimination laws in discrete municipalities. These are the very protections the organizational backers of pending religious liberty legislation oppose in the false name of religious free exercise. These modest laws are why we are stuck debating dramatized fears of majority repression.

As the LGBT community works toward securing statewide protections, it should not be surprising that any law that could undermine existing protections would generate passionate resistance. Senator Cowsert’s instinct to insulate civil rights laws and ordinances from religious objections was right. Instead of meaningful protections, we were given a mirage of compromise in the form of unenforceable legislative findings. The LGBT community asked for a half piece of bread. They barely threw us crumbs.

I sincerely appreciate that many legislators have said they harbor no intent to encourage discrimination. But, these are promises our legislators are ill positioned to keep. The interpretation of any religious liberty law would lie with the courts.  While I have great faith in our judges, LGBT Southerners are understandably skeptical. We cannot take for granted that our state courts will always mete out justice in our favor. Look to the Alabama Supreme Court, which yesterday took extraordinary measures to target our constitutional rights and relegate us to a position of social inferiority.  I ask that Georgia’s elected officials examine their hearts and reflect on how they might feel if they were routinely subjected to humiliation and vilification. For many LGBT Georgians, the scars of mistreatment animate their visceral fears. Verbal promises will not overcome the hard lessons of repeated abuse.

Owning uneasy truths is our Southern dilemma. We are now at a point of great promise and great danger. We can choose to pursue comprehensive solutions to pressing civil rights issues or we can abandon the promise and browbeat one another. It is time that we frankly admit to our social ills and stop fueling mistrust and division. History will judge us. I pray it does so favorably.

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.

Mike Bowers, Gays, and the Klan

Didn’t think we had enough dramatic flair over “religious liberty” in Georgia? Welcome, Mike Bowers.

The former Attorney General, well known for his defense of the criminalization of gays and lesbians in Bowers v. Hardwick, is now LGBT Georgians’ ally. Bowers released a memo today condemning the proposed “religious freedom” [RFRA] bills, HB218 and SB129. Let’s digest the memo.

Bowers doesn’t pull punches. He attacked the motivation behind the legislation, writing, “The obvious unstated purpose of the proposed RFRA is to authorize discrimination against disfavored groups.” This is not an earth shattering conclusion. It has been patently obvious for some time that the groups most mobilized behind these bills see RFRAs as a tool to escape civil rights laws and ordinances. They hope to use the shield of RFRA as a sword to reduce gays and lesbians to second-class status.

This has been my largest source of concern– a concern shared by a bipartisan group of legislators. These bills do not exempt civil rights laws, leaving nondiscrimination law and ordinances open to attack by religious objectors. Removing civil rights from religious-based law suits is not unprecedented, nor is it a blue state phenomenon.  Texas and Missouri both took steps to protect civil rights laws from “religious liberty” challenges.  Adopting legislation without a civil rights exception threatens our civil rights tradition and the rule of law. Bowers has that much right.

The public has been told again and again– and again– that the “religious freedom” legislation will not undercut nondiscrimination norms. I have no reason to doubt the sincerity of these assurances from legislative leaders. At the end of the day, however, what is said during media interviews and legislative hearings about their personal intent does not matter.  Legislative text does. Any lawyer worth his or her salt knows that.

Like the former attorney general, I am increasingly convinced that the lobbyists pushing these bills have a different definition of discrimination than most Georgians. In their world, denying services, housing or employment on the basis of race and sex is wrongful discrimination– but, mistreating gays and lesbians in the public square is just deserts. If there was any doubt to the veracity of that observation, the intense opposition to Bill Cowsert’s amendment, which would remove civil rights laws from RFRA lawsuits, is evidence enough. Res ipsa loquitur.

Does RFRA mean impending doom for nondiscrimination laws? I do not think so. But, while I believe that nondiscrimination laws meet the standard embedded in RFRA to trump free exercise claims, it is an open question as to whether state courts would agree.  Specifically, just as the Bowers Memo teases out, there is no guarantee state courts would consider the interest of a local governments enacting nondiscrimination protections as satisfying the test put forth in this legislation. Even if governments are ultimately successful, RFRA legislation without robust protections for civil rights laws and ordinances, is potentially costly. It may have a chilling effect, discouraging more local municipalities from adopting nondiscrimination protections. That is a risk we cannot take.

What is certain to draw attention, if nothing else, is Bowers’ claim that a state RFRA would embolden hate groups, namely the Klan. To this effect, the Bowers memo refers to the Anti-Mask Act, a 1951 law that prohibits mask wearing in public.  The law states exempts the following: “traditional holiday costume[s],” occupational masks, sporting masks,  theatrical masks (the Code specifically exempts Mardi Gras celebrations and masquerade balls), and gas masks used during emergencies and emergency drills.

Importantly here, members of the Klan challenged the law in 1990, when Bowers was Attorney General. The Georgia Supreme Court rebuffed the Klan, though the law was struck down in a Gwinnett County trial court. The Court’s opinion in State v. Miller stated, “Safeguarding the right of the people to exercise their civil rights and to be free from violence and intimidation is not only a compelling interest.” In other words, the state’s interest met the threshold that a RFRA would establish.This, however, is what lawyers call dicta. It wasn’t necessary to resolve the case because the justices used a weaker standard to dispense the Klan’s lawsuit. In other words, it is not binding precedent. If you don’t want to take my word for it, the Georgia Supreme Court pointed it out in a 2011 case, Grady v. Athens-Clark County.

The Bowers memo will likely come under attack as fear mongering. It is hard to engage in dialogue once the image of sheet-wearing throngs is thrown into the debate. But, the truth is that a state RFRA may well spawn the re-litigation of the Anti-Mask Act. Whether the Georgia courts and, ultimately, the Georgia Supreme Court, would carve out a religious exception to the Anti-Mask Act is another question. It is very unlikely. Courts in New York and Indiana have, however, divided on the issue applying varying analyses.

The debate on these bills is likely to rage on with some intensity for the remainder of session. A national spotlight will be on the Gold Dome. Let us hope that we can work together to advance the civil rights of all Georgians and not the discriminatory interests of a shrinking hostile minority.

Governor Deal “Bans the Box”

In line with his criminal justice reform agenda, Governor Deal issued an executive order to improve employment opportunities for individuals with a criminal history. The order lays the groundwork to prohibit the use of a criminal record as an automatic bar to state employment. Positions of a sensitive nature will be exempted from the executive order.

The policy is commonly known as “banning the box,” a reference to the check box often included in employment applications that asks whether applicants have a criminal record.

Governor Deal’s executive order makes Georgia the fourteenth state to improve public employment opportunities for persons with a criminal record and the first in the Deep South.  The City of Atlanta and Fulton County have similar policies in place already.

The movement to improve employment opportunities for those with criminal records has gained significant traction in recent years. In 2012, the Equal Employment Opportunity Commission endorsed “banning the box” as a best practice. Six states including Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island have extended the policy to apply to private employers, as well.

This may not be the last civil rights issue we see come up with respect to state employees. Karla Drenner’s HB 323 would extend nondiscrimination protections to state employees on the basis of sexual orientation and gender identity.

Religious Gerrymandering

Georgians are being sold a false bill of goods by organizations mobilizing behind “religious freedom” [RFRA] legislation in the General Assembly. The legislation would allow religious objectors to sidestep the requirements of generally applicable law if their religious exercise was “substantially burdened,” unless the government demonstrates the law serves a compelling governmental interest and there is no less restrictive means to serve that interest.

These proponent groups are exploiting the culture wars to drive a wedge between well-intentioned Georgians. They are perverting the very concept of religious liberty.  To be clear, I do not question the intentions of the bills’ sponsors, Sam Teasley and Josh McKoon, nor do I seek to impugn their motivations. However, the groups that have thrown their support behind the bill hold dangerous ambitions and mischaracterize the meaning of religious liberty.

LGBT organizations have cried foul, fearing that the enactment of a state RFRA will potentially gut direly needed nondiscrimination protections. These modest protections have been secured in discrete municipalities in Georgia against discrimination in housing, employment, and public accommodations. Routinely, LGBT Georgians fear they will suffer at the hands of invidious discrimination. I have personally borne witness to people being tossed from public accommodations with anti-gay slurs hurled at them. LGBT persons are often victims of insults in the streets and targeted for acts of violence. The LGBT community’s concerns are legitimate.

Supporters of the legislation tell us that these bills will not undercut nondiscrimination norms. More than verbal reassurances, why not expressly exempt civil rights laws from religious claims? Texas took this route when it enacted a state RFRA. Georgia’s legislation does nothing to squarely address this primary concern of LGBT Georgians. A simple line could do away with any notion that a state-RFRA is intended to serve as a license to discriminate or embolden anti-gay animus.

Perhaps this exposes a more fundamental problem in that some behind this legislation don’t see the denial of services to gay and lesbian Georgians as discrimination. Certainly the organizations supporting this legislation want the right to discriminate against LGBT people. The Georgia Faith and Freedom Coalition in November attacked candidates supporting nondiscrimination protections for LGBT persons as endorsing “special rights.” Some groups have been reported by Pew to hold the goal of letting religious objectors to gays and lesbians opt out of providing them goods and services.
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Hey, y’all!

A long time fan, I am incredibly pleased to announce that I’ve been asked to join the Peach Pundit team.

Many of y’all know me from various forms of social media, but here’s a brief introduction for those I’ve yet to meet. I’m currently a Ph.D. candidate at the University of Georgia’s School of Public and International Affairs, where I study political science and public administration. I attended Washington and Lee University School of Law and the University of North Carolina-Chapel Hill. My scholarship focuses on administrative law, civil rights, voting rights, and other sundry legal issues.

For over two years, I was heavily involved with the Human Rights Campaign in Atlanta working on LGBT issues in Georgia and the Deep South. I have since semi-retreated to the Ivory Tower so I can focus on the ever-looming dissertation and teaching Georgia’s best and brightest.

When I am not feverishly researching and writing, I’m likely obsessing over Georgia football, Tar Heel basketball, and coffee. I am unapologetically addicted to all three.

I am thankful for this great opportunity and look forward to sharing my thoughts with you.