Not content with labeling religious-liberty advocates as tantamount to homophobes and child abusers, Georgia Equality now says they would aid and abet the Ku Klux Klan. In the South, especially, hardly any accusation is more severe.
In this case, it is also absurd.
The accusation came on the letterhead of Michael Bowers, the former state attorney general hired by Georgia Equality to issue an opinion on the bill. It was billed as news that the man who once defended Georgia’s sodomy law had flipped sides, but wouldn’t the surprise have been if he’d contradicted his client?
Either way, Bowers’ letter outlining his opinion is a dog’s breakfast of mismatched legal references in search of a coherent theory, spiced with a few hyperbolic claims in search of headlines.
Bowers’ letter manages both to state the legal test the bill would establish — that government actions which violate a person’s free exercise of religion must serve a “compelling government interest” via the “least restrictive means” — and to imply the bill offers a get-out-of-jail-free card to anyone claiming religion as a defense anytime. He both acknowledges the language of the bill is “virtually identical” to that of a 22-year-old federal law and claims the effects of such language in Georgia are unknowable.
He both waxes eloquently about the rule of law and ignores that the bill establishes a clear legal test for courts of law in free-exercise disputes. He both warns the bill could be used to justify parents’ refusal to vaccinate their children and fails to observe the state’s vaccination law has long included a religious exemption.
Most notably, and like other critics before him, Bowers both raises the prospect of rampant discrimination and fails to offer a single example of discrimination upheld by a court since the bill’s language was adopted by the federal government and a majority of states. Perhaps that’s why he resorted to wild-eyed speculation about the Klan.
“(I)t is no exaggeration that the proposed (bill) could be used to justify putting hoods back on the Ku Klux Klan,” Bowers writes, citing the state Anti-Mask Act that effectively outlawed the hoods.
In fact, in 1990 the Georgia Supreme Court upheld the Anti-Mask Act as serving a “compelling state interest” via a “de minimis” restriction on a Klansman’s freedom of expression. Bowers ought to remember that one; he was attorney general when that case was argued.
By definition, nothing can be less restrictive than that which is “de minimis.” It is ridiculous to think the law would be thrown out in a free-exercise case when essentially the same standard was met in a free-expression case.
But harping on the legal arguments, such as they are, takes away from the real problem with raising the specter of hooded terrorists returning to Georgia. It is plainly an attempt to shut down debate altogether.
Not every critic of the bill has been so implacable. And maybe Bowers doesn’t care what legislators think of him. After all, a good lawyer simply advocates his client’s position.
But legislators should remember who his client was when deciding which advocacy groups they can work with in the future.
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