Georgia bills wouldn’t protect discrimination

Law-abiding Georgians could enjoy the same religious protections as prisoners — as well as everyone in most states and under federal law — under legislation proposed under the Gold Dome.

You’d be forgiven for not understanding that’s what the Preservation of Religious Freedom Act would do, and where it came from.

Since 1993, Americans have enjoyed the same protections from federal intrusions on their free exercise of religion that the state would offer under the proposed legislation. The same standards also held from 1963 to 1990, when courts presumed people of faith were constitutionally exempt from objectionable requirements or prohibitions unless the government was serving a “compelling interest” in the least restrictive way possible.

In 1990, the Supreme Court said a religious exemption from a law existed only if it was included in that law. Three years later a Democratic-controlled Congress passed, and President Bill Clinton signed, the Religious Freedom Restoration Act, or RFRA, which reinstated the blanket presumption of a religious exemption. Not a single House member voted against it; only three senators did.

Importantly, a presumption of an exemption does not guarantee an exemption. It simply sets a higher bar for the government to clear in court.

Since then 29 states, including all of Georgia’s neighbors and much of the Midwest and New England, have either passed legislation to apply RFRA’s protections to state and local government actions or seen their courts interpret their laws in such a way. The federal law also applies to institutionalized persons — which is why a prisoner in Georgia retains more protection against state intrusions on his freedom of conscience than you and I do.

So, state and federal laws that have proved largely non-controversial over the years form the basis for the religious freedom bill — two bills, actually — in Georgia being likened to a modern-day version of Jim Crow.

By now, you have read more than 300 words about this legislation without seeing the words “gay,” “homosexual” or “same-sex marriage.” Read either House Bill 1023 or Senate Bill 377 and you won’t see those words, either.

Even the original text of HB 1023, which sparked most of the backlash to this idea and strayed slightly from the text of the federal RFRA, did not mention those words. Nor is it likely its original text would have protected any actual discrimination on the basis of sexual orientation.

“To my knowledge,” says Rep. Sam Teasley, the Marietta Republican who introduced HB 1023, “there has been no successful defense, and I don’t even know if there’s been an attempt … for anyone using the federal RFRA statute to discriminate. Ever.”

To make clear the lack of a discriminatory intent, Teasley substituted the federal text into HB 1023 verbatim; the sponsor of SB 377, Sen. Josh McKoon, R-Columbus, has pledged to do the same.

“The bill as I introduced it was an attempt to clarify some things,” Teasley says, adding discrimination “couldn’t be further from my intent.”

Georgia’s bill has been likened to a bill passed by Arizona’s legislature by various critics. That includes Delta Air Lines, which issued a hyperbolic statement that is most charitably explained as a case of someone putting pen to paper without bothering to read the Georgia bills.

But Arizona in 1999 passed the law Georgia is now considering; its current bill would change that law in a way Georgia doesn’t attempt.

That isn’t to say we won’t see the kinds of conflicts envisioned by critics of HB 1023 and SB 377. Cases in New Jersey, New Mexico (which has a state RFRA) and Oregon have shown some people of faith feel strongly about not participating in gay-marriage ceremonies, and some gay-rights activists feel strongly about using the law to force their participation.

Those kinds of conflicts are inevitable as long as people believe freedom of conscience means nothing if it doesn’t allow a person to use his time and property as he chooses. But these bills need not hasten those conflicts.

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