Defining the Terms of the Religious Liberty Debate

After Governor Deal vetoed the Free Exercise Protection Act last spring, There has been lots of speculation over whether “religious liberty” legislation would be a factor in the upcoming 2017 legislative session. That speculation grew more heated after House Speaker David Ralston wondered in an interview with Bill Nigut and Jim Galloway if the issue is one that the federal government should deal with, especially now that there is a Republican administration on Capitol Hill.

Rather than ask if religious freedom legislation will make another appearance in 2017, a better question to ask would be, “which flavors of religious liberty legislation could be introduced in 2017?” In fact, there are four distinct measures that could be up for debate next year.

The first, and perhaps the most widely known is the Religious Freedom Restoration Act. This legislation was passed at the federal level in the 1990s, but was ruled as not applying to the states by the Supreme Court. The law directs courts to use a standard called strict scrutiny when considering cases involving the free exercise of religion. RFRA bills were introduced in 2014 by Sen. Josh McKoon and Rep. Sam Teasley, and again in 2015 by McKoon as Senate Bill 129. Controversy over similar, but not identical, legislation in Arizona and Indiana stalled progress on Georgia’s RFRA. Senator McKoon has indicated that the bill will likely be re-introduced in 2017.

Two additional bills were introduced during the 2016 legislative session dealing with religious liberty. The first was the Pastor Protection Act, authored by Rep. Kevin Tanner. This bill attempted to deal with concerns that, in light of the Obergefell decision in 2015 dealing with gay marriage, no religious leader would be required to perform a marriage ceremony, nor would a church be forced to let its property be used for a religious ceremony it did not approve of. Approved unanimously in the House, the bill was later incorporated into the Free Exercise Protection Act.

The third religious liberty bill introduced last year was the First Amendment Defense Act, sponsored by Senator Greg Kirk. The measure was based on identically named federal legislation that its sponsors said was designed to protect religious organizations from being discriminated against because of their beliefs.

But, the measure is subject to different interpretations. For example, the measure is designed to protect a church affiliated adoption agency that refuses to let a same-sex couple adopt a child from being fined or otherwise penalized by the government. While some see this as a valid exercise of the agency’s beliefs, others believe that it is an example of discrimination against same sex marriages.

The First Amendment Defense Act is what Speaker Ralston was referring to when he said that religious liberty should be a federal issue, echoing remarks by Senator Johnny Isakson during the heat of Georgia’s religious liberty debate last March. In the end, much of this bill, along with RFRA and the Pastor Protection Act ended up merged in the measure vetoed by the governor.

The final component of religious liberty legislation, one that has not been seen yet in Georgia, is exemplified in North Carolina’s House Bill 2. This measure requires transgender individuals to use bathroom and other facilities that correspond to their birth sex. It also prevents municipalities from introducing local anti-discrimination measures. Passage of he measure led to the loss of sporting events in the Tar Heel state, and many believe that support for the measure led to North Carolina’s governor Pat McCrory losing his re-election bid last month. While no bill has been dropped for the 2017 measure, many believe that similar legislation could make an appearance under the Gold Dome.

The issues of religious beliefs and rights and LGBT rights are both polarizing and strongly held by many people. For that reason, if nothing else, it’s important to be precise as the legislature considers different bills during the upcoming session.

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