Leadership Weighs Options for the Pastor Protection Act

With seven legislative days remaining in the 2016 session, time to negotiate a compromise on House Bill 757, the Pastor Protection Act, is running short. After passing the House unanimously last month, the Senate amended the bill by attaching to it the First Amendment Defense Act, and returned it to the lower chamber, where is awaits a response. Assuming the House doesn’t let the bill die through inaction, it could amend the bill and send it to the Senate for an up or down vote, or it could simply disagree with the Senate version, which would likely result in a conference committee being formed to attempt to work out differences.

The First Amendment Defense Act attempts to remove the possibility of government discrimination against those persons and faith based organizations that believe marriage should be between two people. So, for instance, the government would be restricted from taking away funds or fining a state funded soup kitchen or other charitable project if it refused to serve people because of the organization’s beliefs about marriage.

After passing the Senate, the FADA portion of the bill drew immediate criticism from companies claiming that it authorized discrimination based on marital status. The measure also drew the attention of Governor Deal, who insisted (twice) that whatever passed the legislature could not promote discrimination. The governor’s position was backed up by Speaker David Ralston. For these reasons, the chances of the FADA appearing in the final version of HB 757 appear to be slim to none.

What are some of the other options? At this point, they include passing only the Pastor Protection Act portion of the bill, significantly modifying the FADA language, or replacing the FADA language with a version of the Religious Freedom Restoration Act. Passing the Pastor Protection Acct by itself would represent a victory for Speaker David Ralston’s approach of finding common ground that all parties can agree with. However, it would not completely address the issues brought up by those promoting stronger protections for individuals and businesses, nor would it address the desire of the LGBT community to avoid discrimination.

One approach to modifying the FADA language to achieve some of its goals is being advanced by Reps Allen Peake of Macon and Beth Beskin of Atlanta. As reported by Greg Bluestein in the AJC, their ideal would be to replace the FADA language with a line saying no business “shall be required to sell goods or services directly to a religious organization or for a religious or matrimonial ceremony.” In effect, this would incorporate the language in Kevin Tanner’s House Bill 756, which never received a hearing in the Judiciary Committee.

While this modification addresses the oft-recited issue of bakers and florists being required to provide services for a same sex marriage ceremony, it fails to address other concerns brought up in the original FADA language, nor does it address broader questions of religious freedom. Speaker David Ralston told us that the Peake / Beskin proposal is one of many ideas he has gotten from members to resolve the impasse, and that he has not personally read their suggestions.

That leaves the option of incorporating a version of the Religious Freedom Restoration Act into the bill. Most of those I’ve spoken to who favor religious liberty legislation say that passing a version of RFRA is their ultimate goal, and that the issue won’t go away until the protection offered under the federal version of RFRA, which has been in force since 1993, is available to Georgians. This year, Ed Setzler introduced House Bill 837, which simply incorporates the federal language into the Georgia code by reference. Whether that language is adopted or the language in Senate Bill 129, authored by Senator Josh McKoon, lawmakers will need to decide if it is necessary to add an discrimination clause similar to the one added to McKoon’s bill by then Rep. Mike Jacobs. The Jacobs amendment added:

“Compelling governmental interest” includes, but is not limited to, protecting the welfare of a child from abuse or neglect as provided by state law and protecting persons against discrimination on any ground prohibited by federal, state, or local law.

The addition of the amendment was enough for its supporters to table the bill at the end of the 2015 session. For its part, the business community opposes a version of RFRA without anti discrimination provisions, claiming that without them, Georgia will be subject to the same pressure to amend its law as was seen in Indiana last year. Yet, if the bill passes with an anti discrimination amendment as broad as the one proposed in 2015, RFRA supporters will not be satisfied. Georgia’s leadership will have to decide whether to spend political capital defending a Georgia law that duplicates federal language that’s been used for more than 40 years, or if they want to craft a more restrictive amendment that doesn’t permit discrimination, yet doesn’t hinder religious freedom.

There’s one other factor to consider in this debate. The bill can be amended in the House without going to a committee, having to sit on the table for an hour, going through the Rules Committee, or other procedures that would allow supporters and opponents to generate campaigns for or against whatever is proposed. In the Senate, the bill would not be subject to amendment, either, just an up or down vote.

Speaker Ralston told us he expects to meet with Governor Deal and Lt. Governor Cagle in the next few days to try to work out an agreement. Meanwhile the clock ticks towards Sine Die.