RIGHT TO DISCRIMINATE UNCERTAIN

Back on March 16, 2016, the Georgia General Assembly sent H.B. 757, a religious liberty bill labeled the “Free Exercise Protection Act,” to then Governor Nathan Deal’s desk for signature. Twelve days later, the Republican governor vetoed the law citing the difficultly in legislating an issue “best left to the broad protections of the First Amendment of the United States Constitution.” In the veto speech, the Governor stated:

“I do not think we have to discriminate against anyone to protect the faith-based community in Georgia of which my family and I are a part of for all our lives. Our actions on HB 757 are not just about protecting the faith-based community or providing a business friendly climate for job growth in Georgia. This is about the character of our State and the character of its people. Georgia is a welcoming state filled with warm, friendly, and loving people. Our cities and country sides are populated with people who worship God is in myriad of ways and in very diverse settings. Our people work side-by-side without regard to the color of our skin, or the religion we adhere to. We are working to make life better for our families and our communities. This is the character of Georgia. I intend to do my part to keep it that way.”

GOP Elephant Using Georgia Capital Gold Dome as a TolietDuring that legislative session significant backlash from corporations, the film industry, and even the National Football League, who argued that legislation would adversely affect Atlanta’s chances at hosting a Super Bowl prevailed. Ultimately, the governor skewered the bill and Atlanta hosted Super Bowl LIII. At one point, there were seven pieces of proposed legislation between the House and Senate dealing with religious and First Amendment issues. Each either stalled out or were vetoed.

If H.B. 757 had survived the governor’s veto, the legislation would have permitted:

Section 2: Religious leaders to deny solemnizing marriages, perform rites, and administer sacraments at their discretion.

Section 3: Individuals working on either Saturday or Sunday (the “days of rest”) to receive reasonable accommodations to their religious, social, and physical needs. The business is not compelled to be open on those days.

Section 4: Faith-based organizations to deny renting, leasing, or permissive use for events which are objectionable to the organization. The organization is also exempt from providing social, educational, or charitable services that violate any sincerely held beliefs.

Section 5: Faith-based organizations to deny or terminate the employment of any person whose religious “beliefs or practices or lack of either are not in according with the faith based organization’s sincerely held religious belief.”

Sections 2, 4 & 5 contained specific clauses preventing the pursuit of civil claims, alteration of tax exempt status, levy of penalties, or disallow charitable contributions for state tax deduction.

Finally, Section 7 waived sovereign immunity for the state of Georgia for any claim brought in the courts by an “aggrieved individual or faith based organization” seeking judgment, relief, or reasonable attorney fees and court costs.

Fast forward a few years and just 24 days after the super bowl, S.B. 221, “The Religious Liberty Restoration Act” was introduced by a handful of Senators from rural cities in Georgia, once again stirring up the religious liberty fight.

This legislation is more closely prosed to align with the existing Federal Religious Freedom Restoration Act (RFRA) that was signed by President Bill Clinton in 1993. One of the sponsors, Sen. Marty Harbin, told the Atlanta Journal Constitution that “Georgians need to be fully protected under the First Amendment…I don’t see it as a discriminatory issue at all. You could be from that community and have your religious rights violated, and it would protect you.”

New York Times article from the November 17, 1993 indicated that “50-60 cases of government infringement on religious practices [had] been justified in the courts on the basis of the 1990 ruling” in Employment Division (Oregon) v. SmithIn Smith, unemployment benefits were denied by the State of Oregon to two Native Americans dismissed from jobs in a drug rehabilitation program after using the hallucinogenic drug peyote as part of a Native American Churchceremony. Within the Federal law’s text, government “shall not substantially burden a person’s exercise of religion” unless there exists a “compelling government interest” and the “least restrictive means” are used.

Four years later The Supreme Court in City of Boerne v. Flores, deemed the Federal law unconstitutional and that Congress had exceeded its enforcement authority under Section 5 of the Fourteenth Amendment. Congress later responded through the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA), which applies heightened review to state and local government actions in limited types of cases. The protections of RLUIPA apply only where states or localities place a substantial burden on religious exercise as a result of a land use regulation or on the religious exercise of institutionalized persons, such as prisoners. To get around the broad authority of RFRA, Congress sought to ground RLUIPA protections in the spending and commerce clauses.

Although hinged under different constitutional authority, RFRA and RLUIPA provide the same two-part standard. According to the Congressional Research Service:

“…Government actions that impose a substantial burden on religious exercise must (1) serve a compelling government interest and (2) use the least restrictive means to achieve that interest. The party asserting the violation under RLUIPA must prove that the government has placed a substantial burden on religious exercise. The U.S. Supreme Court has interpreted a “substantial burden” as a burden that requires an individual to modify his behavior in violation of his religious beliefs in order to comply with legal requirements. Once a substantial burden is proven, the government must show that the imposition of the burden furthers a compelling governmental interest and is the least restrictive means of furthering the interest.”

Textually, S.B. 221 and the RFRA law are similar, except the proposed legislation permits the recovery of courts cost and attorney fees. On the surface, it appears that if the “judicial officer” is deemed to have overstepped his or her jurisdiction, then that person would be liable to pay the aggrieved party’s costs and fees. Otherwise, the person would still be covered by the city, county, or state government.

To date, no religious discrimination cases have been found in Georgia that would not have been protected by the First or Fourteenth Amendments or Title VII of the Civil Rights Act. That is most likely the reason Georgia House Speaker David Ralston told the Associated Press that religious liberty proposals were “a solution in search of a problem.” The difference between today and the 2016 political climate is Governor Brian Kemp pledged to sign legislation that mirrors the federal RFRA law.

Critics of the law, such as Jeff Graham from Georgia Equality, said in an email that S.B. 211 is an acute threat that granting “dangerous religious exemptions that would allow businesses, including tax-payer funded organizations, to deny services and employment to LGBT people and many others,” such as in South Carolina. Last month, the Miracle Hill Ministries foster care program received a exemption from the U.S. Department of Health and Human Services to only work with Christians. As a result South Carolina became one of eight states permitting state-contracted child agencies to exclude prospective families based on religious beliefs of the agency.

Given that crossover day in the General Assembly, the date of which legislation must clear one chamber of the legislature to be passed by the other, is March 7th, time is not on S.B. 221’s side. Currently, the bill is in the Senate waiting for additional attention.

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Editor's note: this story originally appeared on Jeffrey Albertson blog, Albertson Writes.

Image: GOP Elephant Using Georgia Capital Gold Dome as a Toliet is composite photo created for LikeTheDew.com from a photo of the Georgia State Capitol in Atlanta by J. Glover (AUtiger)  and a photo borrowed from Pinterest.com.

Jeffrey Albertson

As a thinker and political scientist, my interests are public policy (Labor, Social Security solvency, and Financial Services Reform) and social-contract political theory. Additionally, I post news analyses, book reviews, and reviews of historical events. I invite you join me on Twitter (@_JAlbertson) to follow regular updates.