Breaking Down The Religious Freedom Bill – Not Many Things Change

As anyone following the spinning wheel of protest known as the #GAPol hashtag knows, there is a “Religious Freedom” bill sitting on the Governor’s desk awaiting his signature.  …or veto.

There has been a lot of hype and a lot of misdirection on this bill.  Many still argue it wasn’t needed in the first place.  Others take a great leap to say that Georgia has institutionalized discrimination.  Both sides have attempted to hold the business community hostage to score political points.  The entire debate has left Georgia more divided than when it began.  Law or not, that’s not the stated goal of the Bible or Christianity as taught in my church.

That said, there’s a bill.  For what it does and doesn’t do, we turn to respected attorney and former State Representative (and Majority Whip) Ed Lindsey. He’s been no stranger to this issue trying to help find common ground in the past. He’s now crafted a memo that has been circulated among some within the Capitol.  I think it needs a wider circulation and thus we’re posting it here.  I’ll leave any additional analysis to you fine people in the comments section.

An Overview of HB 757

HB 757 is a reaction to the recent U.S. Supreme Court ruling on same sex marriage, and many may reasonably believe it presents a public relations issue for the state and its business community in terms of holding and attracting economic development, but in drilling down into the bill, very little is actually changed by it in Georgia in terms of the present rights of citizens.

Protection of Ministers, Clerics, other Religious Practitioners, and Individuals of Faith in Regards to Compelling Their Participation in Same Sex Marriage Ceremonies:

  • “Religious practitioners” shall not be required to perform marriages that violate their faith.
  • A refusal to perform marriages in contravention of a religious practitioner’s faith shall not give rise to a claim of discrimination or be grounds for the loss of tax exempt status.
  • No individual shall be compelled to attend or participate in a marriage ceremony which violates his or her faith or be subject to a claim for discrimination for failure to do so.
  • In reality, this is already the law on both federal and local levels as existing anti-discrimination laws generally have carve outs affecting religious organizations in areas of faith.

Protection of Businesses that Close on Saturday or Sunday:

  • No business or industry shall be required by local ordinance or regulation to operate on a designated religious day of rest.
    One might consider this a “Chik-fil-A” defense law. In Georgia, however, there exist no present local laws or regulations that require the opening of a business on a Saturday or Sunday.

Protection of Faith Based Organizations in Same Sex Marriage Ceremonies:

  • No faith based organization shall be compelled to provide goods, services, or rent a location to conduct a marriage ceremony that violates its faith.
  • A refusal to provide such goods, services, or rent a location shall not give rise to a claim of discrimination or be grounds for denying such organization tax exempt status.
  • Generally, this is a codification of existing general law that already protects faith based organizations from participating in activities in opposition to their faith.

Protection of Faith Based Organizations in Regards to Employment Laws:

  • No faith based organization shall be required to hire or retain an individual whose religious beliefs or practices run counter to beliefs of the faith based organization except as may be required by federal or Constitutional law.
  • A refusal to hire or retain such individual shall not give rise to a claim of discrimination or be grounds for denying such organization tax exemption status.
  • On first blush this provision of the bill may appear troubling to individuals concerned about discrimination in employment. However, the bill expressly recognizes federal anti-discrimination employment law. Under federal law and regulations, faith based organizations are already exempted in regards to employees in positions where one’s faith is an integral part of his or her job. A minister, for instance, would fit under this existing federal exemption. Employees of such organizations in non-faith related positions, however, such as a secretary or a janitor, are protected under federal anti-discrimination law.

Strict Scrutiny Standard in Government Actions affecting Religious Liberty:

The bill requires that Georgia courts shall insure that any infringement of religion by the government takes place only when there is “a compelling governmental interest,” and the government utilizes the “least restrictive means of achieving that compelling governmental interest.”

This provision is a codification in Georgia of the federal Religious Freedom Restoration Act passed in the early 1990’s in response to a U.S. Supreme Court ruling that had applied a lower standard for considering Religious Freedom than other First Amendment protections such as Freedom of the Press or Speech. Numerous other states have also codified this standard in the past quarter century.

The bill specifically recognizes that federal and state anti-discrimination laws are a compelling government interest.

Of concern to some is the fact that county or city local ordinances were not specifically recognized as well. However, the bill does not outlaw these local protections either, but merely leaves it to the courts to determine if such ordinances fit within the “strict scrutiny” standard. No local anti-discrimination ordinance or state law which has ever been examined under the strict scrutiny standard in other states has ever been struck down.

Furthermore, in terms of Georgia courts future considerations, the bill expressly states that in using the “strict scrutiny” standard, Georgia courts should follow existing Georgia Supreme Court precedent on this issue. The key case in Georgia is Jones v. Moultrie which held that one cannot use religious beliefs as a legal basis to infringe upon the rights legally held by others. Specifically, the court held, “A person’s right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others.” This finding should support the upholding of local ordinances barring discrimination.

The bill specifically states that this “strict scrutiny” standard cannot be used as a basis for government officials to use their religious beliefs as grounds for refusing to perform their governmental duties. In other words, a government employee cannot pick and choose which laws to follow.

The bill specifically recognizes that maintaining safety and good order in penal institutions is a compelling state interest and that religious rights may be curtailed in such situations.

The bill specifically states that the “strict scrutiny” standard in regards to religious freedom applies to government action only and cannot be used as a basis for employee claims against private employers for alleged religious persecution.

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augusta52Will DurantJohn KonopSaltycrackerThe NFL, Georgia’s religious-liberty bill and the facts | Kyle Wingfield Recent comment authors
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Robbie
Robbie

“The bill specifically recognizes that federal and state anti-discrimination laws are a compelling government interest.” This phrase is a trick placed into the bill to make people think it actually has some anti-discrimination protection in it, and it seems you fell for it, too. There are no state anti-discrimination laws at all. They don’t exist. And there are not federal anti-discrimination laws that protect LGBT people, at least, not any that have been proven to hold up nationally. While there’s a going theory from the EEOC that sex discrimination includes LGBT people, that’s only for employment and not anything else,… Read more »

Saltycracker
Saltycracker

A common cause: Take the tax money or the tax break and you must dance to our tune could be a law and would save the legislators a lot of time on a lot of matters.
(Snark or flat tax point ?)

Seems only a year ago GOP legislators were 100% confident the presidential race would be a cake walk…..never underestimate our folks under the GA dome’s ability to dumbfound, even on separation of church and state.

gcp
gcp

It is strange that some of the loudest opponents of this bill are the same folks that demand tax breaks/taxpayer subsidies (NFL, movie industry, Arthur Blank).

Edward Lindsey
Edward Lindsey

Robbie: I understand your concern about “faith based institution” that accept government funding. The bill in fact addresses that issue as follows: “(b) No faith based organization shall be required to provide social, educational, or charitable services that violate such faith based organization’s sincerely held religious belief as demonstrated by its practice, expression, or clearly articulated tenet of faith; provided, however, that government may enforce the terms of a grant, contract, or other agreement voluntarily entered into by such faith based organization.” In other words, under this bill if a faith based organization takes government money to provide a service,… Read more »

John Konop
John Konop

Ed, in all due respect, strong legal basis or not, many in the RFRA movement will see this as a green light for spewing hate, and tying up the courts. What am I missing?

Edward Lindsey
Edward Lindsey

John: As I stated in the opening paragraph I recognize the political and economic concerns to be weighed. I was asked to narrowly look at the legal issues and have tried to be fair in doing so. There are plenty of other folks who can argue both sides of the political issues.

John Konop
John Konop

Ed,

I thank you for taking your time to clarify legal issues on this bill. Good luck on your brackets 🙂

augusta52
augusta52

“Spewing hate” is the typical reaction you get from the “Irreligious Left” when denominations such as the Roman Catholic Church, Eastern Orthodox Church, Southern Baptist Convention and Lutheran Church-Missouri Synod doesn’t conform to the “trendy” teachings of an increasingly secular, perhaps hostile culture. That is why you get for example the Catholic Church battling it out with the Obama Administration over contraceptive coverage. Liberal Protestantism has caved in on many traditional teachings such as on marriage and abortion since the 1960s and the losses have been steep, while denominations which have clung to the tried and tested have either gained… Read more »

John Konop
John Konop

Aug,

I have made it very clear I am against affrimative action, but I suppurt civil rights for all, and would put my life on the line for it. If you think, my support of civil rights for all, as being left wing, so be it. My country means way more.

John Konop
John Konop

The reason corporations are backing away from supporters of bills like RFRA is it brings out the worse in people. Movement leaders like Ted Cruz will not even disassociate supporters calling for the genocide of gay people. Obviously, Ed Lindsey is a very bright and successful lawyer, but we know the anti gay side will push this in the courts harshly when people in the movement are calling for “Kill-the-gays”. We know Sen. McKoon associated himself with the leaders in the movement like Ted Cruz via his support. Finally, beyond this hurting our economy, we know actions like this increases… Read more »

Saltycracker
Saltycracker

The bill started off as a sweeping religious zealot event with the legislators and no amount of adjustment is going to fix the public perception of this bill. The legislators have facilitated a horrible mess for the mainstream non-fundamentalist religious institutions.

John Konop
John Konop

Agree! When a agenda is based on hate, no way to clean it up.

Jean
Jean

One “new” thing is that this (the can’t be required to attend a wedding they don’t approve) would allow caterers to refuse to provide services for gay weddings and would allow bakers and florists to refuse to do setups at weddings……

I’m not sure but it might also be able to be used for private venues – if the contract says that “owner” is required to be present at “all weddings” in their facility then could they exclude a wedding that doesn’t meet their religious code?

John Vestal
John Vestal

(d) All individuals shall be free to attend or not attend, at their discretion, the solemnization of any marriage, performance of any rite, or administration of any sacrament in the exercise of their rights to free exercise of religion under the Constitution of this state or of the United States. Technically, while I am certain this applies to florists/photographers who are involved with and have to attend the actual ceremony and/or setup for the ceremony, bakers and caterers are another story (in most instances). The reception is neither the “ceremony” or a de facto extension thereof, imo. The reception often… Read more »

Jean
Jean

Ah, ok – I see the distinction….. I’ll need to think about the lines ….. My personal wedding ceremony was held in space where I was in a room next to the catered food but it was open between the two spaces …. the caterers weren’t technically at my wedding ceremony but there was no way to avoid hearing it….. which way would that fall? I do find it “interesting” that I haven’t seen any news outlets pick up on this particular piece…. (or maybe I just missed it…) this is obviously one that was written to sound innocuous in… Read more »

John Konop
John Konop

The national RFRA movement, lead by Ted Cruz, has made it clear, they support using the bill for hate, and it goes beyond the gay issue. The supporters have gone as far as claiming the genocide of the Jewish people by Hitler. because they would not convert. Ted Cruz has not only refuse to denounce this, instead Cruz defended the position. ……..Cruz defends evangelist who said God sent Hitler to hunt JewsCampaign ‘welcomes support’ from faith leaders including Mike Bickle, who tries to convert Jews and predicts a new death camp era……… …..Presidential hopeful Ted Cruz’s campaign said it “welcomes… Read more »

Saltycracker
Saltycracker

The only shot conservatives have is Kasich getting behind Cruz. Or we can choose a devisive “big beautiful wall” around everything Trump vs. an amoral self-serving sociopath in Clinton.

Kasich is going to play a major role in the direction this country will go and his current position seems crazy unless he sweeps the west.

John Konop
John Konop

When the Cruz baggage goes mainstream it will destroy the GOP for years if he was the nomination. Romney, Erickson…..will look like fools for going after Trump for his remarks, and supporting Cruz, when they see what he has done. Cruz makes Trump look like choir boy compared to the outrageous remarks he has made.

augusta52
augusta52

Kasich has zero chance of securing enough delegates for the nomination. The math isn’t there for one, and since 1980, no Republican has won the nomination without winning at least 1 of the 3 early states—Iowa, New Hampshire or South Carolina. Kasich is just holding out for a contested convention, conveniently to be held in Cleveland. But nominating him poses risks too–if Trump has the most (but not a majority) of delegates going into Cleveland and someone like Kasich (who will finish far back in delegates) is nominated, the Trump people will bolt—say hello to the second President Clinton.

Jean
Jean

From the posted article: “In reality, this is already the law on both federal and local levels as existing anti-discrimination laws generally have carve outs affecting religious organizations in areas of faith.” “One might consider this a “Chik-fil-A” defense law. In Georgia, however, there exist no present local laws or regulations that require the opening of a business on a Saturday or Sunday.” “Generally, this is a codification of existing general law that already protects faith based organizations from participating in activities in opposition to their faith.” “On first blush this provision of the bill may appear troubling to individuals… Read more »

abella30
abella30

I agree with Jean. If this law just restates existing law then why pass it? The perception is that the law legalizes discrimination. If the governor signs the law, then the perception will be that Georgia condones discrimination. Why would we pass a law that harms our reputation but accomplishes nothing?

Dave Bearse
Dave Bearse

Do you support the legislation, Mr. Lindsey, as did over 140 GOP legislators, or are you with the few below that voted no?

Senator VanNess, Conyers
Representatives
Beskin, Atlanta
Golick, Symrna
Greene, Cuthbert
Martin, Alpharetta
Pak, Lilburn
Peake, Macon
Pezold, Fortson
Taylor, Dunwoody
Wilkinson, Atlanta
Williams, Watkinsville

Edward Lindsey
Edward Lindsey

Dave: Charlie was kind enough to provide links on my previous comments on RFRA above. I was asked by folks on both sides of the issue last week to lay out what I thought the bill legally did and did not do. Therefore, I will stick to that issue here and leave it to you and others to eloquently layout the political arguments on both sides.

Edward Lindsey
Edward Lindsey

All: With this understanding, I leave you. March Madness awaits which may not be my religion but it is my passion this time of year. Good discussion but I am out of here.

12Bobbykite
12Bobbykite

I have read the body of the legislation. Someone please point out specifically how this discriminates and/or encourages discrimination towards any group of individuals. Please cite the exact lines of text to which you reference so as to facilitate accurate interpretation of your argument. Thanks in advance

John Konop
John Konop

That is the point, it is clear as mud. That will more than likely lead to nasty lawsuits costing us tax payers, while we drive business away from our state. Why would you support a bill like this?

John Konop
John Konop

Bobby,

As county chair of the Cruz campaign, do you agree with Ted Cruz defending the ” killing of gays” and that Hitler was killing Jews because they would not convert?

John Konop
John Konop

…that God wanted Hitler to Kill Jews because they would not convert?

Saltycracker
Saltycracker

All the GOP candidates have stepped in it somewhere with the Jewish media, which is heavily Democratic. My favorite JWR columnist had this to say for Cruz:

http://jewishworldreview.com/cols/sowell031516.php3

joe
joe

Lines 250-275 say anything you want them to say. Oops, my bad, they don’t exist.

Andrew C. Pope
Andrew C. Pope

You’re clearly capable of reading.

trackback
Either way, Georgia’s religious-liberty fight is headed for the courts | Kyle Wingfield

[…] it favors the faith community, mostly by freezing in place some elements of the status quo (see here for a detailed explanation of that). But not others: Its concrete effects remain in the religious, […]

DAinGA
DAinGA

“However, the bill does not outlaw these local protections either, but merely leaves it to the courts to determine if such ordinances fit within the “strict scrutiny” standard. No local anti-discrimination ordinance or state law which has ever been examined under the strict scrutiny standard in other states has ever been struck down.” Why is it the GOP often rails against the courts, saying the create law, but in this case they are more than happy to leave it to the courts. Why couldn’t they have merely made it CLEAR that this doesn’t preempt local ordinances? Why do those who’s… Read more »

trackback
The NFL, Georgia’s religious-liberty bill and the facts | Kyle Wingfield

[…] ordinance, that has not happened in those other cities. There is no reason to think, based on the judicial history of other states, that a challenge to Atlanta’s ordinance would be […]

Saltycracker
Saltycracker

Mr. Wingfield is looking at the current bill, but perception is the problem from the religious fundamentalists first drafts and today’s hysterical left, “it’s a trick” view. Both sides, intentionally or unintentionally, are distructive to institutions separated from government.

Will Durant
Will Durant

“…in Georgia, where LGBT citizens are not a protected class and where free exercise of religion is protected by a lower legal standard than other First Amendment rights.” — Kyle Wingfield Huh? He lives in a different Georgia than I do. How about this recent prayer meeting, um, Faith & Freedom Coalition luncheon recently held on state property in one of Sloppy’s towers… http://christianindex.org/glimpses-of-faith-near-the-state-capitol/ You had the Hitler-referencing lobbyist/preacher Mike Griffin opening the proceeding with a Christian prayer from a F&FC pulpit, er, podium with a backdrop of the preamble to the Constitution. You had some ranting about a committee… Read more »