Beware of HB757, A Wolf in Sheep’s Clothing

Members of the Georgia Senate are misleading the public in a shameful attempt to impose a full throated anti-LGBT agenda.

On Friday, the Georgia Senate approved HB757. HB757 was once called the Pastor Protection Act, but HB757 is unworthy of the name in its current form. Indeed, after the Senate hijacked HB757 by inserting into it the so-called First Amendment Defense Act, the Pastor Protection Act morphed into an entirely different animal.  What started as a consensus-driven bill to reassure clergy and religious institutions that they did not have to facilitate marriages inconsistent with their faith, is now a divisive bill that smacks of an older South. 

The most reprehensible part of the debate over HB757 is the legislative jiggery pokery employed to shroud the bill’s intended and actual effect. Make no mistake, FADA will allow businesses to discriminate against LGBT people, women, and unconventional families.  FADA guarantees that the speculative, but legitimately feared, parade of horribles that stoked anti-RFRA movements in Georgia, Indiana, and Arizona, will come to pass. Yes, HB757 will make LGBT Georgians second-class citizens in one fell swoop. Yes, HB757 is RFRA on steroids.

The Chick-Fil-A Clause

What exemption does FADA provide? HB757 states, “Government shall not take any adverse action against a person or faith-based organization wholly or partially on the basis that such person or faith-based organization believes, speaks, or acts in accordance with a sincerely held religious belief regarding lawful marriage between two people, including the belief that marriage should only be between a man and a woman or that sexual relations are properly reserved to such a union.”

The current language in HB757 limits the scope of its application to “natural persons” and “faith-based organizations.”  Natural persons, of course, are human beings, as opposed to a fictional legal person, which includes for-profit corporations. Reading this, one might think the Senate wanted to exclude businesses from taking advantage of the exemption to turn away LGBT customers. Not so fast.

Georgia’s FADA definition of “faith-based organizations” has not received the amount of attention it should by legislators or the media. HB757 defines faith-based organizations as “any organization or other legal entity whose governing documents or mission statement expressly acknowledges a religious belief or purpose.” In other words, any business in Georgia– from a small business to a large corporation– can deem themselves a religious organization, provided they have documentation that the business is guided by some religious purpose.

One can only imagine the swift response that will follow if FADA becomes law.  Businesses may suddenly undergo conversions like the Apostle Paul on the Road to Damascus, discovering religious beliefs they never had before and posting signs of who they will not serve.

The “natural person” language is excess verbiage that creates a distinction without any real meaning. Under FADA, any for-profit business can easily opt out of local nondiscrimination requirements with the shelter of state law. When legislators repeat ad nauseam that FADA is only about religious organizations and natural persons, it is a desperate attempt to trick the public into believing this legislation is about religious non-profits, charitable organizations, and living, breathing human beings. Do not be fooled, FADA is designed to be a wolf in sheep’s clothing.

Other Ramifications of FADA

While HB757 exempts from its reach government actors’ failure to perform official duties, the scope of their official duties is open to interpretation. Given this ambiguity, there are legitimate concerns that this bill would isolate same-sex couples, transgender people, unwed mothers, and anyone who has sex outside marriage for mistreatment in the government sphere. For example, HB757 would permit judges to exercise their discretionary power to marry in a discriminatory fashion against same-sex couples with impunity.  It would also embolden clerks to engage in hostile practices— this fear is not an abstract hypothetical.

One clerk in Colorado charged with marriage licensing duties, for example, conspicuously posted religious materials on a wall in her office condemning same-sex relationships. By all accounts, the clerk continued to issue marriage licenses pursuant to her official duties in full view of these intimidating materials. A deputy clerk in Gilmer County, West Virginia, demeaned and harassed a same-sex couple as she processed their application for a marriage license. The deputy clerk justified her actions by saying, “I just told them my opinion. I just felt led to do that. I believe God was standing with me and that’s just my religious belief.” The targets of the clerk’s harassment were humiliated, but the County Clerk excused his deputy’s conduct, telling a reporter that the office fulfilled its official duties.  HB757 could enable conduct of this nature throughout the state and may very well shield public displays of animus by state employees from reprimand.

Beyond hostile treatment by state officials, HB757 would:

  1. Undermine local nondiscrimination policies protecting local employees.
  2. Require state educational institutions to certify medical professionals who fail to comply with professional standards of conduct, which could harm LGBT or unmarried persons seeking their services in the public and private sectors.
  3. Disallow state boards from taking appropriate action to regulate harmful faux medical practices, including therapies– universally condemned by every professional medical association– designed to “alter” a person’s sexual orientation.
  4. Allow the state to create tax-subsidized monopolies for religious organizations to provide social services and then permit the organizations to choke off access to those services. Most notably this could result in shutting out same-sex couples from the adoption market, contravening the most fundamental family law tenant that the best interests of children should guide child adoption policy.
  5. Eviscerate every local non-discrimination law in public accommodations, housing, and employment.

FADA’s Constitutional Infirmity

There is little doubt if FADA becomes law there will be devastating consequences for Georgia’s reputation and business climate. That aside, there is no benefit in enacting clearly unconstitutional laws. HB757, is constitutionally defective because it places a spotlight on LGBT and unmarried Georgians to become victims of discrimination. The bare desire to harm LGBT persons is impermissible under the Equal Protection Clause of the Fourteenth Amendment. By singling out LGBT  in the way HB757 does, the bill excuses and protects discrimination in their everyday lives and across various areas of the law.

HB757 is remarkably similar to a 1992 Colorado measure, which primarily sought to invalidate local anti-discrimination protections for gays, lesbians, and bisexuals. The primary rationale Colorado offered in defense of the law was the respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. The Supreme Court in Romer v. Evans rejected Colorado’s defense and struck down the law because it put in LGB persons into a solitary class with respect to transactions and relations in both the private and governmental spheres by state decree. This bill would have the same effect.

This is only one way in which FADA fails to meet constitutional muster.  There are additional Free Speech Clause and Establishment Clause problems.

FADA is Not a Solution

FADA is not about live-and-let-live as we’re told. Nor, is FADA about free speech, which is robustly protected by the First Amendment already. Rather, FADA is a bill that enables discriminatory conduct.  There is nothing admirable about HB757 after the Senate’s hack job. Far from an accommodation of people of faith, FADA is a blunt and unconstitutional instrument of discrimination that says to LGBT Georgians, “we win and you lose.” It must be stopped.

 

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53 dodgeTAKE ACTION: Tell the Governor to VETO HB757 – Pink Peach Newsaugusta52chefdavid‘Religious liberty’ debate moves into high gear | Political Insider blog Recent comment authors
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gsupantherfan1
gsupantherfan1

The conspiracy theorist in me believes that all these Religious liberty bills jacked up on steroids are only intended to make RFRA the obvious choice for passage. Either way, I’m tired of the focus on Religious Freedom bills. Instead lets focus on legalizing parimutuel wagering and casinos.

xdog
xdog

Thanks, Anthony, for carrying the water on this issue.

Dave Bearse
Dave Bearse

I second that. Does anyone know the difference(s) between HB757 in its current state, and the HB757 that the Senate approved earlier in the day? The difference(s) changed a few votes.

My quick review of the Senate vote indicates that not a single GOP Senator voted no: http://www.legis.ga.gov/Legislation/en-US/vote.aspx?VoteID=13997 They stand together on principle.

The GaGOP wants its country back. That includes return of second class citizenship in states rights Georgia. The rest of America and the world ought to know that. Ted Cruz is lovin’ it.

francooper
francooper

This revised bill is deplorable on so many fronts. If you don’t like the duties of your job & what’s required, get a new one. Equally frustrating, the Senate wants to mandate banks provide financial services to individuals & businesses that sell firearms (SB282) . Hey Senators, at the very least be consistent in your messaging & don’t be a hypocrite.

Eric
Eric

“Watch out for false prophets. They come to you in sheep’s clothing, but inwardly they are ferocious wolves.” – Mathew 7:15 Anthony this verse is not talking about bills that defend peoples religious beliefs. This is actually referring to people like you. You portray yourself as a helpless victim trying to get people to turn away from the teachings of Christ in exchange for a new “progressive” belief that directly contradicts with what Jesus taught. Put your faith in Christ, not in a denomination. Put your faith above all else and let it shape you, instead of letting who you… Read more »

Calypso
Calypso

“Put your faith above all else…”

Sorry there Skippy, I prefer to put facts, knowledge, common sense, and ‘doing the right thing’ above your lucky rabbit’s foot and mythological yammerings.

Andrew C. Pope
Andrew C. Pope

Who gives a flying Frenchman about “what Jesus taught? Last I checked Jesus wasn’t at the Constitutional Convention. This is not a theocracy despite Kirk, McKoon, et. al’s best attempts to make it one. The acceptability of this law should not be measured on what your religious beliefs say about it (because I’ll be up front and let you know that my religious beliefs are totally fine with gay marriage). Anthony has laid out a reasoned argument for why this law does not pass constitutional muster and, perhaps equally important, has set forth how it betrays the value of equal… Read more »

Calypso
Calypso

Thank you, Andrew. I expect we won’t hear a reasoned rebuttal from Eric, not that reason would ever be contained in a rebuttal from someone with such a hate-filled and homophobic mind-set.

Eric goes about hiding his thoughts, words, and perhaps even actions behind the invincible curtain of his particular religious beliefs. Some people think that when they attach god or Jesus to their position, it should automatically, and without examination, become sacrosanct.

Gee, haven’t we recently heard of other groups doing reprehensible things all in the name of their religion?

Hey Eric, if the shoe fits…

augusta52
augusta52

Well, if it weren’t for those activist judges……….

John Konop
John Konop

Do you think the law should protect people who practice this form of Christianity?

………….his death penalty call, adding that homosexuals should first be given some time to repent before the executions begin. There’s nothing subtle about what he said, and you can watch it for yourself, including his statements about what he would do if he were one of those parents of a gay person: ………

http://www.huffingtonpost.com/michelangelo-signorile/post_10496_b_8544540.html

Dave Bearse
Dave Bearse

No worries everyone. Bill Torpy reported in that AJC this morning that ex-Baptist preacher Kirk told Torpy that he had consulted with a few southwestern Georgia closeted gay friends of his about the legislation, and they’re still friends of his.

That’s even better than the approval of J. Edgar Hoover.

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‘Religious liberty’ debate moves into high gear | Political Insider

[…] Over at Georgiapol.com, Anthony Michael Kreis lists the bill’s alleged sins. He says the bill would: […]

trackback
‘Religious liberty’ debate moves into high gear | Political Insider blog

[…] Over at Georgiapol.com, Anthony Michael Kreis lists the bill’s alleged sins. He says the bill would: […]

chefdavid
chefdavid

Ramnifications be damned. These legislators want something passed so they will have something to stump speech on as soon as they adjorn. They can’t stump on lower taxes after the transportation bill. Well some of them will make you think that. So this year the canned stump speech will be “religous freedom and you can carry your gun everywhere except at the capitol”. They will worry about the problems with whatever is passed next year when it’s not a re-election year.

trackback
TAKE ACTION: Tell the Governor to VETO HB757 – Pink Peach News

[…] It’s a seriously-detrimental bill which has the ACLU and the Metro Atlanta Chamber of Commerce speaking out in opposition. […]

53 dodge
53 dodge

Anthony the definition you cite (presumably from HB757) for “faith based organization” is nothing like what the actual bill says. I am an open minded, liberal leaning democrat. I do not follow the party lead and like to look at these issues on their merits. I read your article as part of my research on this. I’ve not decided anything yet but I sure am glad I didn’t use your argument with my ultra conservative neighbor. He would have eaten my lunch.