I have my doubts about the “parade of horribles” opponents of the religious-religious bill have conjured should it become law. I am more certain about the horrible parade we’ll see if it doesn’t.
I mean another year of supporters and critics alike marching on the Gold Dome. Another year of dire warnings from the bill’s opponents — after Klan hoods were speciously invoked, swastikas must be next — and its backers alike.
The truth is that a narrow bill, with a long track record of having few practical implications, has been oversold by both sides.
Senate Bill 129 would do one thing: In court cases where citizens claim government actions infringe on their religious rights, the bill would tell judges where the line is drawn. The judges would decide whether the citizen’s rights were substantially burdened, and whether the government’s actions were narrowly crafted to serve a compelling interest.
The bill legalizes nothing. It is no get-out-of-jail-free card for those who might discriminate or otherwise seek refuge in the law for doing the illegal.
The law’s lack of protection for those who would discriminate against gay individuals and couples, the bogeyman raised most often, is clear not only from cases in New Mexico and Washington where such a defense failed. It is evident from the efforts by states that already have such laws to create a further protection for, say, florists and bakers who want to stay out of the gay-marriage business.
Such measures surely wouldn’t be necessary if this law actually did what the critics say it would.
That said, the bill wouldn’t prohibit much, either. The history of the federal law on which SB 129 is based is one of relatively few challenges and even fewer successes by people of faith.
For the few challengers to prevail in a RFRA case, the law most definitely matters. It should become law for that reason. But the bill’s opponents have not been alone in exaggerating the breadth of its impact.
Yet, facts and nuance are rapidly wilting under the heat of the rhetoric from both sides. Their struggle has taken on a symbolism that each side at this point might value more than the legislation’s text itself.
That’s why there will be no quiet death for SB 129 in the House. It will remain alive for next year’s session, and proponents will not forget to resume their cause. Loudly.
But there will be one big difference between now and then: It appears likely the U.S. Supreme Court this summer will declare gay marriage a constitutional right throughout the land.
If that happens, there will be no separating the present religious-liberty debate from that issue.
This presents an opportunity. Pass SB 129 this year, to address what we might call “gay marriage-neutral” religious liberty. Lawmakers then could focus on crafting a more specific public-accommodations law that considers both the rights of gay couples and conscience protections for small-business proprietors.
This is the kind of delicate balancing of interests American legislatures are supposed to undertake. Passing SB 129 would clear the way for Georgia’s legislature to do just that.
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