The compromise within Georgia's 'religious liberty' bill

After three years of debate, the state Legislature has placed on Gov. Nathan Deal’s desk a bill intended to put legally sanctioned air between religious conservatives and the U.S. Supreme Court-approved institution of same-sex marriage.

Deal can now sign HB 757. Or not.

What seems like the whole of corporate America, including the empires of Mickey Mouse and Captain America, has insisted on a veto. On this Easter Sunday, many Georgia Baptists – the primary denomination behind this legislation – will pray for what they think is necessary: An increase in their governor’s testosterone level.

That Deal faces this dilemma can, in part, be laid at the feet of House Speaker David Ralston, whose skepticism in two previous legislative sessions has helped keep a final bill at bay.

This year, Ralston entered the fray with an innocuous bill to reassure members of the clergy that they would not be forced to perform any marriage ceremony they didn’t want to. His role in negotiations grew from there.

Governor Deal has insisted on legislation that does not discriminate. And before the Legislature adjourned on Thursday, Ralston maintained that he had delivered. “I think it is free of discrimination. Otherwise, I would not have allowed it to go forward,” Ralston said on GPB’s “The Lawmakers.”

The House speaker defended HB 757 as the result of significant compromise. And this is so. But one important aspect of this compromise bears close examination.

As a visceral, culture war argument, the debate over same-sex marriage has been over whether a devout Baptist baker can be forced to squeeze out “Congratulations, Bob & Steve” in icing letters on a wedding cake.

But state by state, the concrete political target of “religious liberty” advocates has been local ordinances adopted in urban areas, designed as protections against discrimination for LGBT communities.

Last month, at one of many rallies in support of what came to be HB 757, a legal group called Alliance Defending Freedom distributed a brochure that outlined this priority. It included this:

“These ordinances place terms like ‘sexual orientation’ or ‘gender identity’ in the same category as race or religion. But they are not designed for the innocent purpose of ensuring all people receive basic services. Rather, their practical effect is to legally compel Christians to accept, endorse, and even promote messages, ideas, and events that violate their faith.

“Those promoting these ordinances use public sympathy – gained through misleading rhetoric about ‘discrimination’ – to silence dissenting voices.”

Until Wednesday, Charlotte, N.C., had an ordinance that barred LGBT discrimination – and included a provision allowing people to use public bathrooms that correspond with their gender identity, rather than their birth gender.

A hastily called session of the North Carolina Legislature negated that ordinance – and did more. The Republican-controlled body prohibited all local governments from creating any of their own anti-discrimination statutes. A statewide anti-discrimination policy now governs North Carolina, and it does not include LGBT protections.

(The action, approved by a Gov. Pat McCrory up for re-election, also erased local ordinances barring discrimination against veterans, but that is mere collateral damage.)

In Georgia, the Legislature has taken a different approach. In a large portion of HB 757, “invidious discrimination on any grounds prohibited by federal or state law” is also prohibited by the “religious liberty” bill. But the state of Georgia has no anti-discrimination law. And the federal ban on discrimination doesn’t include LGBT protections.

The only protections for gays and lesbians in Georgia come from about 62 local ordinances passed by cities and counties across the state, according to a count by Georgia Equality, the gay rights group. The strongest one, addressing hiring, housing and public accommodations, was approved by the city of Atlanta.

HB 757 is silent on these ordinances. Sort of. “The local ordinances were a big part of the discussion,” Ralston said. And here was the compromise. Rather than a ban on local anti-discrimination ordinances, lawmakers established a strict courtroom test for them.

One test is “a compelling governmental interest” in prohibiting discrimination. Another test is whether the ordinance in question uses the “least restrictive means” to achieve its goal.

In other words, the Legislature punted on the issue of whether LGBT protections should be continued at a local level. “The decision was made that those really need to be determined by the judicial branch rather than by the legislative branch. That’s what we did,” Ralston said.

If a court decides to erase these ordinances and permit discrimination against gays and lesbians, that’s its business. Legislative hands will be clean.

On the final day of the session, Mike Griffin and I sat in a noisy corner of the state Capitol. Griffin is the lobbyist for Georgia Baptists and a fierce advocate for HB 757.

We spoke of the hypothetical someone who refused to rent a house to a gay couple. “[The bill] would be a means for the judge to determine whether that was a legal right. [HB 757] is what it is. How it’s going to be applied would be left up to that judge to determine whether that ordinance was overreaching,” Griffin said.

He thought some more and said a rented house might not be the best example. A bed-and-breakfast would be a better one, Griffin said. “That should be protected,” he said.

One of Griffin’s counterparts on the other side is Jeff Graham, executive director of Georgia Equality. In a memo, his legal adviser, a Republican and a former federal prosecutor, has expressed “significant concern that this provision could be used to overturn municipal anti-discrimination ordinances.”

Exactly how much havoc it could wreak, Graham doesn’t know. “Frankly, this is where I could give the speaker a little bit of credit and understanding when he says, ‘I don’t know how expansive it would be,’ Graham said. “I don’t know how expansive it would be. We don’t know how much damage it could do to these [ordinances]. But it’s a very real fear.

“It’s something we should not be taking a chance on. These decisions should be made at a local level, and the state should not interfere with that,” Graham said.

So if the governor vetoes HB 757, the battle goes on within the state Capitol for a fourth year. If Deal signs the bill, and weathers the onslaught from business and civil rights groups, the battle shifts to trench warfare – city by city in Georgia, ordinance by ordinance.

Either way, the battle goes on.

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About the Author

Jim Galloway
Jim Galloway
Jim Galloway is a three-decade veteran of The Atlanta Journal-Constitution who writes the Political Insider blog and column.