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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:

Protection of Businesses that Close on Saturday or Sunday:

Protection of Faith Based Organizations in Same Sex Marriage Ceremonies:

Protection of Faith Based Organizations in Regards to Employment Laws:

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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