Category: Religion

Report: NCAA Monitoring Future Host Cities for Civil Rights Protections

Based on a report in the Indianapolis Star, the NCAA will reconsider whether cities hosting future NCAA events have adequate civil rights protections for gays and lesbians. The issue is relevant to Georgia, with the legislature expected to consider Senate Bill 129, Georgia’s Religious Freedom Restoration Act, in the upcoming session. Georgia is scheduled to host the NCAA Final Four basketball tournament in 2020, and a regional tournament in 2018. It is also scheduled to host a NCAA football semifinal in 2016, and the national championship game in 2018.

From the Star story:

Amid a national debate over civil rights protections based on sexual orientation, the Indianapolis-based NCAA apparently will reconsider sites already chosen to host its championships — including Indianapolis, the NCAA told The Indianapolis Star.

“We’ll continue to review current events in all cities bidding on NCAA championships and events, as well as cities that have already been named as future host sites, such as Indianapolis,” Bob Williams, NCAA senior vice president for communications, wrote in an email statement Nov. 12.

Requests to speak to NCAA leaders for more information were denied.

The Star report notes that there are still many unanswered questions regarding what the NCAA would consider as adequate civil rights protection in a host city, or what criteria it might use to change tournament venues. While Atlanta has a local ordinance prohibiting some discrimination on the basis of sexual orientation, LGBT advocates claim that the proposed RFRA bill could override that ordinance.

In any case, the report adds more weight to a study by the Atlanta Chamber and the Atlanta Convention and Vistiors Bureau announced this week that estimates between $1 and $2 billion in negative economic impact should SB 129 become law.

Passing a Georgia RFRA Could Cost State $Billions, According to Studies

Studies commissioned by the Metro Atlanta Chamber of Commerce and the Atlanta Convention and Visitor’s Bureau conclude that Georgia could suffer a hit between $1 and $2 billion should the legislature pass Georgia’s Religious Freedom Restoration Act without some sort of provision against discriminaton, according to information obtained by the AJC.

The story quotes Katie Kirkpatrick, the chief policy officer for the Metro Atlanta Chamber saying that passage of the bill without amendment would be harmful.

“We want to send the message that Georgia is a welcoming state,” Kirkpatrick said. “It’s good for economic development, which is good for jobs, which is good for Georgia families. This study … allows all of us to go into the upcoming legislative session with eyes wide open as to what the potential economic risks are if Georgia doesn’t get this right.”

McKoon questioned the studies’ validity coming, as they do, from opponents of his bill.

“I suppose that if we had the money we could go hire an economist who could dream up some fantasy where RFRA would make us money,” he said. “This is just absurd.”

Sen. McKoon says that the Georgia version of the bill is different than the original one passed in Indiana because the Georgia version only allows suits against government, rather then individual business. The difference, McKoon maintains, is that Georgia’s version cannot be used to sue businesses such as bakers and florists who refuse to provide services for a same sex couple planning a wedding.

Supporters of gay rights maintain that SB 129 could be used to challenge local ordinances such as the one in Atlanta that bans discrimination against gays in employment and housing.

The Convention and Visitors Bureau estimate of $2 billion in economic loss assumes 2.5 million hotel room bookings cancelled or not made, and a loss of 4,000 jobs should SB 129 pass without amendment. While Sen. McKoon claims that no one has threatened to cancel their convention should the bill pass, a representative of the Georgia Hotel and Lodging Association told a House Judiciary subcommittee in March that two organizations planning conventions in Atlanta have threatened to go elsewhere should the bill pass.

The studies set up a potential lobbying battle when the legislature returns in January. In addition to trying to pass RFRA, which stands tabled in the Judiciary Committee, Speaker Ralston plans to introduce a Pastor Protection Act, and McKoon as said he wants to introduce a First Amenement Defense Act that is designed to protect religiously affiliated organizations from losing tax exempt status or other rights because of religious or moral beliefs.

Renewed Interest in the Religious Liberty Bill Demands an Understanding of Its Scope

State Sen. Josh McKoon’s recent remarks at a Paulding County Republican Party breakfast blaming the different “cultural norms” of major Atlanta companies as a major reason keeping Senate Bill 129, the so-called Religious Liberty bill, from passing during the 2014 or 2015 legislative sessions restarted the public discussion over the bill’s likely fate during next year’s legislative session.

Governor Nathan Deal weighed in with an opinion that next year’s bill should stick to the language used in the federal Religious Freedom Restoration Act; that is, without language addressing the possible use of the bill as a vehicle for discrimination. And all of that led to a front page story in today’s Atlanta Journal-Constitution by Kelly Yamanouchi recapping the situation, and relaying feedback from business community leaders, legislators, and political observers.

Yet, like the child’s game of Telephone, what comes out at the end of this discussion isn’t always an accurate picture of the original intent of the religious freedom bill, what it would allow, and how it might affect the opposing concepts of the competing rights of free association and public accommodation. Attempting to frame the differences between the Republican Party’s social conservative base and the business community, the story states:

The religious liberty measure, which has twice failed but will come up again in 2016, would limit the government from interfering with people who base their actions on religious beliefs, the bill’s supporters say. But Delta, Coke and others have expressed concern that the bill would, for example, give business owners legal cover to refuse service to gay couples. That, they said, could spark a backlash costing jobs and hurting Georgia’s image — similar to what Arizona and Indiana experienced after they passed similar laws.

Also in the story, Rep. Scot Turner of Holly Springs frames SB 129 as a limitation on government’s use of force, as opposed to being a vehicle for discrimination. Turner supports the legislation.

The heart of the issue, Turner said, is “should the government force an individual to participate in an activity that violates that individual’s deeply held religious beliefs? The answer to that is obviously a resounding ‘no,’ and the religious liberty legislation proposed in Georgia seeks to institute a very modest protection of the individual from that type of government overreach.”

Contrary to the impression one might get from descriptions of the bill, Georgia’s Religious Freedom Restoration Act does not act like a talisman that a believer can wave to avoid something they think goes against their religious beliefs, whether that’s a shop owner not wanting to bake a cake for a same-sex wedding, or a mother who says child abuse is permitted by her religion as a method of properly raising a family. Instead, the bill, along with its federal sibling, allows someone to have their day in court to argue that a law interferes with their freedom of religion. And as we have learned in the case of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses because of her religious beliefs, a claim under RFRA in many if not most cases will be denied. Read more

Josh McKoon Proposes State Version of First Amendment Defense Act

State Senator Josh McKoon was one of the speakers at Saturday’s 8th Congressional District GOP Fish Fry in Perry. While most of his speech was devoted to his effort to pass a state version of the federal Religious Freedom Restoration Act, Sen. McKoon also announced his intention of introducing a state version of a proposed federal law known as the First Amendment Defense Act.

He repeated his intention this morning in this Facebook post:

Thought for the Day: Every Republican in Georgia’s Congressional Delegation has co-sponsored the First Amendment Defense Act. If Georgia’s Supermajority Republican General Assembly fails to pass a state FADA in January, it will be clear proof that Elected State GOPers are to the left of our own U.S. Congressmen and Senators.

I wrote about the First Amendment Defense Act last month. The federal version of the legislation would prevent the federal government from discriminating against individuals or organizations because of their belief that marriage is between a man and a woman. Presumably, passage of the act would protect an organization from losing its tax exempt status or federal funds because of it’s religious or moral beliefs.

The federal version would not apply to state law. If a state version of the act were to pass, it presumably would protect a baker or florist who prefers not to participate in a same-sex marriage from a discrimination claim.

Assuming Sen. McKoon follows through with his intention to introduce the First Amendment Defense Act, Speaker Ralston pushes for passage of the Pastor Protection Act, and efforts to pass the religious liberty bill continue, that will mean there are three separate bills before the legislature in an election year dealing with the aftermath of June’s Supreme Court Obergefell decision.

After Obergefell, Support Grows for a Federal First Amendment Defense Act

Legislative efforts to counteract the Supreme Court’s decision allowing same-sex couples to marry sprung up in Georgia with the announcement last week of the Pastor Protection Act, which would enshrine in Georgia law the right of a minister, priest or other faith leader to decline to consecrate a marriage with which they didn’t agree. Other measures, including a renewed effort to pass Georgia’s Religious Freedom Restoration Act, can be expected when the legislature reconvenes in January.

However, state government isn’t the only battleground for this culture war. In the U.S. House of Representatives, Raul Labrador (R-ID) introduced the First Amendment Defense Act before the Supremes announced their decision in late June. The measure has 124 co-sponsors, and a matching Senate version, sponsored by Mike Lee of Utah has 34. The Washington Post covered the progress of the bill following a rally last Thursday:

The First Amendment Defense Act is not as sweeping as the controversial state laws passed in Indiana, Arkansas and elsewhere that created a right for private businesses to deny their goods or services to gay people or to same-sex couples. The bill is instead focused on actions the government may take — in particular, potentially revoking the tax-exempt status of churches and nonprofit religious groups or denying them government grants, contracts or jobs. Last week, Kansas Gov. Sam Brownback issued an executive order making similar provisions in his state.

The bill provides that the federal government “shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”

In theory, the bill would prevent the loss of a federal tax exemption following a lawsuit against a Christian school that refused to accept gay students.

When the bill was introduced, it had five original cosponsors from Georgia, including Reps. Doug Collins, Jody Hice, Rick allen, Tom Graves and Lynn Westmoreland. After the bill was introduced, they were joined by Reps. Barry Loudermilk, Tom Price, Buddy Carter, and Austin Scott. The Senate version is co-sponsored by Johnny Isakson and David Perdue.

Last week, 10 District Rep. Jody Hice took to the House floor for a special orders speech in favor of the bill:

The bill’s future is uncertain. It has yet to be heard in committee, and according to the Post story, many in leadership, including Speaker John Boehner, are reluctant to move quickly, given the recency of the Supreme Court’s decision.

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.

Legislation Being Contemplated Following Same Sex Marriage Decision

With the ink barely dry on the Supreme Court’s decision in Obergefell v. Hodges, some Georgia legislators are contemplating possible measures dealing with the ramifications of same-sex marriage. In an extended look in Sunday’s Atlanta Journal-Constitution about how the decision affects the religious, legal, business and political spheres, State Senator Josh McKoon of Columbus is quoted as saying:

“There’s going to be a flurry of religious liberty measures that are a reaction to this decision,” said state Sen. Josh McKoon, a Columbus Republican who sponsored SB 129 and sides with opponents of gay marriage.

McKoon and others also expect legislation that would dramatically change how marriage licenses are issued in Georgia. One proposal making the rounds would enable a religious or secular leader to issue a marriage certificate that can then be recorded with a probate judge. In that way, no government official is actually issuing a license.

“That would free government officials of the responsibility of making that decision,” McKoon said. “And it gets the government totally out of the marriage business.”

McKoon is the author of Senate Bill 129, the religious liberty bill that stalled in the House Judiciary Committee over whether language to prohibit discrimination should be included. You can expect to see that bill brought up again in 2016.

Other possible legislation that could be considered is presented in a Facebook post by Senator William Ligon of Brunswick. While the main purpose of the post is to promote a screening of the movie One Generation Away, which stresses the importance of fighting for religious liberty, it also contains the Senator’s statement on the Supreme Court ruling. In part:

In the immediate future, however, state officials will need to determine how we protect the religious rights of government employees who in good conscience cannot perform a same-sex marriage ceremony. We will need to consider how to protect our business people, who have sincerely-held religious beliefs about marriage, from being targeted by same-sex marriage advocates trying to bully them into providing wedding services. We need to consider what type of message on the topic of marriage is packaged within the curriculum that is taught in our public school system. We need to find ways to protect college and university students from being kicked-out of their chosen field of study, such as counseling, because of their sincerely-held religious beliefs on marriage and sexuality. These are very real and immediate concerns that must be addressed during the next legislative session.

The next legislative session starts on January 16th, just more than six months away, although work on bills can continue during the summer and fall.

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.

Groups Prepare for the Supreme Court Decision on Same Sex Marriage

Sometime in the next three weeks, the U.S. Supreme Court will issue its decision in Obergefell vs Hodges, that will determine whether there is a right to same-sex marriage in the United States. While the decision and its scope remain unknown, supporters and opponents of gay marriage are preparing for what might come afterwords.

Traditional marriage supporters demonstrate outside the Supreme Court on April 28th, 2015 following oral arguments in the same sex marriage case.  Photo: Jon Richards
Traditional marriage supporters demonstrate outside the Supreme Court on April 28th, 2015 following oral arguments in the same sex marriage case.
Photo: Jon Richards
In a front page story in today’s Atlanta Journal-Constitution, Greg Bluestein and Danial Malloy write that SSM opponents are preparing their response should the court legalize SSM. Social conservatives, they report, plan to use the decision and reaction in Roe v. Wade, which legalized abortion, as the model for the response to Obergefell.

The effort to pass Georgia’s Religious Freedom Restoration Act during the 2016 legislative session is likely to be front and center. Although the federal version of RFRA was passed in the 1990s as a measure to allow religious adherents to practice their beliefs without undue government interference, the measure became tied to same sex marriage following efforts in the last two years to enact similar legislation in Arizona, Indiana and other states. From the AJC story:

“They are absolutely intertwined,” said state Sen. Mike Crane, R-Newnan. “Ultimately at the end of the day, the Supreme Court is ruling on what God says is valid or not. And this is very much a question of faith.”

U.S. Rep. Barry Loudermilk, a Cassville Republican, cast religious freedom measures as an “anti-government bullying bill” that in some instances has to do with gay marriage — such as the archetypal baker who refuses to make a cake for a gay wedding.

Should the court rule in favor of same sex marriage, legislators could introduce additional bills to limit the effects of the decision:

[RFRA is] just the tip of the spear, though. Several lawmakers predicted proposals that would restrict state tax credits and housing benefits for same-sex couples, as well as an effort modeled on proposals in South Carolina and Virginia that enable court officials to opt out of same-sex nuptials.

“It’s hard to see where it ends,” said Crane, the Newnan state senator. “It will revamp how it affects so many areas of our life. It’s going to set off a chain of events that’s going to be very far-reaching.”

Meanwhile, the Washington Post reports that groups supporting gay rights plan to use a court decision legalizing SSM as a stepping stone to press for broader protections against discrimination.

Gay rights advocates counter that a court ruling establishing a national right to same-sex marriage would highlight a fundamental injustice: That in many states, the newly legal marriages could get the brides and grooms fired.

“The ability to live openly and to earn a living is so central to every American and certainly every LGBT American,” said Matt McTighe, director of Freedom For All Americans, a new campaign involving many of the same activists and funders who drove the marriage battle. “It’s high time we addressed this from a legislative standpoint.”

Many people believe the Supreme Court’s 1973 decision in Roe v Wade preempted the ability of states and Americans to resolve the question of abortion via legislative consensus. More than 40 years later, the pro life / pro choice debate continues to fester, with demonstrations each January and continuing efforts to pass laws restricting the availability of abortions. The limits of the court’s decision continue to be debated today, as evidenced by Tuesday’s decision by the Fifth Circuit Court of Appeals to uphold a Texas law limiting where abortions could be performed. Americans remain split on the pro-life / pro-choice question.

In a March 2014 column, Ross Douthat predicted a similar divide following a Supreme Court decision finding a right to same sex marriage. Yet, recent polling shows increasing acceptance of SSM, especially among millennials.

If the court requires states to license gay marriage as many expect it will, only time will tell if efforts by social conservatives to preserve the traditional definition of marriage will result in different groups of Americans agreeing to disagree on the meaning of marriage or whether, as Douthat puts it, “the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business.”

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.

The Effort to Include Non-Discrimination Language in the Religious Liberty Bill Takes Shape

We told you last week about the likelihood of dueling religious liberty resolutions that are expected to be proposed at the Georgia GOP convention that begins on Friday. One resolution, mimicking those offered at the GOP District conventions in April, is expected to call for passage of Senator Josh McKoon’s Senate Bill 129 without any amendments such as the one offered by Rep. Mike Jacobs last session that would effectively limit the ability of someone to use Georgia’s Religious Freedom Restoration act as a reason to refuse service to people protected by a federal, state, or local non discrimination law. Among those who would likely be protected are gay or lesbian couples planning to marry, and wanting products or services for their ceremonies.

Another group calling itself Georgia Republicans for the Future is mounting a push to include non-discrimination language in any bill passed by the General Assembly. And they plan to be vocal this weekend, with a full page ad in the Athens Banner Herald that includes this language:

The recent debate surrounding the religious liberty legislation has highlighted the diversity of opinion on both the national level and within our own party here in Georgia. It points the way for a common sense approach, one that is consistent with our values as conservatives while at the same time reaffirming our mission to treat others as we would want to be treated.

We strongly support nondiscrimination language in any religious liberty bill. The two objectives are not mutually exclusive. Both are true to our founding principles, and allow us to broaden the tent of our party.

In addition to the ad, the group has created a Facebook page and website. They will also have a booth at the convention promoting their cause.

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. Read more

GOP Split Over Religious Freedom Debate Could Be a Factor in Georgia Next Year

For a second year in a row, efforts to pass a Religious Freedom Restoration Act in Georgia failed, in part due to related events going on in other states. In 2014, Josh McKoon’s Senate Bill 377 failed to make it past the Senate Rules Committee after Arizona governor Jan Brewer vetoed a bill that would have extended that state’s RFRA to allow businesses the ability to deny service to LGBT customers because of the owners’ religious faith. This year, the spotlight was on Indiana and Arkansas, where threats of boycotts following the passage of their state RFRAs led them to include language prohibiting discrimination. Meanwhile, Georgia’s Senate Bill 129 failed to advance from the House Judiciary Committee because members couldn’t agree on anti-discriminatory language.

Senator McKoon, along with the bill’s sponsor in the House, Rep. Sam Teasley, have vowed to bring the measure back when the legislature reconvenes in January, 2016. The question is whether it will be met with the same levels of support and resistance than as it was this year and last.

The effort to pass religious freedom bills has opened up a divide between the Republican Party’s social conservative wing and its more business oriented wing. A front page analysis in last Thursday’s New York Times shows the concerns of each side:

The tug of war between social and business-minded conservatives has been long simmering, and surfaced even when President Bush sought to privatize Social Security and some social conservatives feared the move would drive women into the work force.

“There has always been this tension,” said Michael D. Tanner, a senior fellow at the Cato Institute, a conservative think tank, “both in terms of tactics, because the economic conservatives wanted to talk about taxes and the economy, and on the electoral strategy,” because those social issues often alienated suburban moderates and cost Republicans elections, he said.

“There is no doubt that the continued opposition of gay rights is an electoral loser,” he added. “Younger Republicans are as pro-life as older Republicans, but gay rights is a huge generational shift and Republicans are going to have to find a way to deal with that issue.”

The Wall Street Journal approaches the same issue, with a story headlined, “Evangelicals Incensed by Business Push Against ‘Religious-Freedom’ Bills.” The story quotes Timothy Head of the Faith & Freedom Coalition as saying, “If the Republican Party and its candidates expect evangelicals, faithful Catholics, and other people of faith to turn out to the polls in large numbers in 2016, they better show more political courage, skill, and moral clarity on one of the most important issues of our time.” Both the Times and the WSJ stories describe the challenge candidates for the 2016 presidential race will have walking the tightrope between the two sides.

A March Wall Street Journal poll showed 59% of Americans support gay marriage, up from 52% in a Pew Research poll taken last September. However, levels of support vary by region and political ideology. In the Pew poll, only 29% of conservatives and 44% of southerners are in favor of same-sex unions. In addition, 38% of Georgians identify as evangelical protestants, according to Pew Research, much higher than the national average of 26%.

As Jim Galloway points out in his column from last Thursday, the political influence of evangelicals, especially Southern Baptists, is strong in Georgia. He also points out three important dates: Georgia’s GOP State Convention on May 15th and 16th, where as many as 5,000 people could hear pitches from presidential candidates, the last week in June, when the Supreme Court could make same sex marriage legal throughout the country, and March 1st 2016, the Peach State’s presidential primary date, and a time when the 2016 session of the Georgia legislature will be in full swing.

What happens at those three events, plus newfound interest by Governor Deal’s office in guiding the debate could determine whether the third time is the charm for McKoon and Teasley.

An Arkansas Preview

** Update ** Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law. It appears a consensus is forming.

After Indiana’s RFRA embroiled the state in national controversy, some of our Southern neighbors find themselves on the verge of the same controversy. Last night, HB 1228  passed both houses of the Arkansas legislature. It now sits on the desk of Governor Asa Hutchinson, “a pragmatic Republican who ran on a jobs platform.” That’s a type we know well.

As everyone knows and is tired of hearing, the Religious Freedom Restoration Act was passed with overwhelming bi-partisan support in 1993 and signed by Arkansas’s favorite son. 20 states (including Indiana) have passed similar bills, which aim to prevent government from forcing citizens to violate their religious conscience absent a “compelling interest.”

Yet the recent bills passed in Indiana and Arkansas go further. They codify the federal RFRA’s ambiguous protection of corporate entities the Supreme Court interpreted in Burwell v. Hobby Lobby Stores. Most threateningly, they allow religious defenses to be used in cases in which no government entity is a party– if, for example, a turned-away minority customer sues a restaurant for violating local civil rights statute.

Both Indiana and Arkansas lawmakers turned down amendments to add non-discrimination language to the bill of the kind proposed by Rep. Mike Jacobs. In Indiana, the executive director of the American Family Association of Indiana worried about “a capitulation that enshrines homosexual behavior as a special right in Indiana.” It’s difficult for either state to argue this legislation isn’t a rearguard action against the advance of gay rights, particularly with allies like Tony Perkins.

Important political figures and corporations (you know the one) have asked the Governor not to sign the bill. One imagines Governor Deal, in a similar situation, receiving a call from the ghost of Robert Woodruff.

Given the firestorm, Governor Hutchinson has hinted at support for a compromise that would add non-discrimination language to the state’s RFRA in conjunction with a state civil rights bill to define protected classes of race, religion, age, gender, and sexual identity. Jon Richards has proposed the same mechanism here. Perhaps, after a year of tribalism and lies, a way forward has been charted.

A Way Forward for Religious Freedom and Civil Rights

The debate over religious liberty in Georgia is approaching the end of its second year, and at least for the moment, the question is not resolved. Supporters of the measure, which is based on the federal Religious Freedom Restoration Act, say they want to extend to state laws the same protections provided against the encroachment of federal laws on religious rights. Those opposing the measure are concerned that enacting the bill into law would allow discrimination against other Georgians, especially the gay and transgendered.

Had Georgia’s RFRA been proposed five years ago, it probably would have passed without controversy. The rapid growth in support for gay rights, especially among millennials, and a push by gays and lesbians to assert their right to be treated as equals have tied religious freedom and civil rights together. At this point, they can’t be separated. And yet, both must be dealt with.

The events in Indiana over the past week are instructive. Section 8 of the Hoosier State’s version of RFRA, which specifies when government can interfere with a person’s exercise of religion, is almost identical to section 50-15A-2 of Senate Bill 129. After Governor Mike Pence signed the bill into law, the calls to #BoycottIndiana drove that hashtag to the top of Twitter’s trending list. Major companies, including Salesforce.com and Angie’s List threatened not to do business in the state, and the NCAA expressed its concern that students could be negatively impacted by the law at this weekend’s Final Four basketball tournament, which will be held in Indianapolis. On Saturday, Governor Pence realized that a firestorm was brewing, and said he will propose legislation to ensure the law won’t be used to discriminate against sexual minorities.

If nothing else, this should be a reminder to those under the Gold Dome that they should cross their Ts and dot their Is before passing the Peach State’s RFRA.

And that’s the task Chairman Wendell Willard’s House Judiciary Committee has taken on. Over more than nine hours of hearings last week, a subcommittee and then a full committee heard witness testimony and considered possible amendments to the bill that would clarify the intention not to discriminate. They considered a proposal from former Rep. Edward Lindsey based on the Texas and Missouri RFRAs on Tuesday, yet adopted a substitute on Wednesday that contained no anti-discrimination language. At a full committee meeting on Thursday, they passed an amendment offered by Rep. Mike Jacobs, also drawn from Missouri’s RFRA:

“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.

After the committee voted to adopt the amendment, Rep. Barry Fleming said, “This is the amendment, the catfish amendment as we call it, that will make the bill not worth passing.” And with that, the bill was tabled by the committee. Why did Fleming say the Missouri language would gut the bill? The AJC’s Kyle Wingfield offers this explanation, citing three hypothetical examples completely unrelated to gay rights that would infringe on religious expression. But, there’s another reason to oppose having anti-discrimination language contained inside a RFRA. Read more