I understand why some people want to add a clause to the state’s religious freedom bill making clear that it does not permit child abuse or discrimination.
I also understand why the bill’s author might consider it a slap in the face.
The Senate Judiciary Committee yesterday unexpectedly tabled Senate Bill 129, a version of the religious-liberty legislation that has been discussed in the Legislature since last year. It did so after the chairman of the committee and sponsor of the bill, Sen. Josh McKoon, R-Columbus, ruled out of order an amendment to add the clause about abuse or discrimination.
On its face, the amendment seems harmless. McKoon and Rep. Sam Teasley, R-Marietta, who has pushed for the legislation in the House, have said repeatedly their bill would not permit abuse or discrimination. So why not put it in the bill if McKoon and Teasley are being sincere?
I can sympathize with that argument — but only up to a point. I also see why McKoon and Teasley would consider it wrong-headed and maybe even insulting.
For one, McKoon and Teasley have also said repeatedly for a year now that they would work with anyone to address such concerns in the bill. Before yesterday, McKoon told me, no one had asked him to add such a phrase to the bill. While there was a debate during the hearing about the timing of the amendment and whether it was allowed under committee rules, there can be no doubt that the business groups pushing for the amendment have had ample time before now to ask McKoon and Teasley to include such language.
Second, the language was overly broad and legally superfluous. It was overly broad because it included no definition of “discrimination.” As Sen. Charlie Bethel, R-Dalton, pointed out during the hearing, the plain-text meaning of the amendment would leave open the possibility of rejecting discrimination against people who are late to work. If such a clause is indeed necessary, it ought to be narrowly tailored so that it clearly applies only to state laws and local ordinances regarding discrimination, to avoid creating more problems through vagueness than it solves.
That said, it’s hard to see why the language is necessary. As I have noted numerous times, the federal law on which this bill is based has been on the books for 22 years — and the legal standard it creates was in use by the U.S. Supreme Court for almost 25 years prior to that. There is plenty of case law and precedent for this standard — it’s also the law in a majority of other states — so it’s not as if Georgia would be legislating blindly here. There has been no case in which such a religious-liberty bill was successfully used in court as a defense for abuse or discrimination; people can claim whatever they want, and they already do, but that doesn’t mean courts will uphold their claims. Just this week, a court in Washington state, which uses the same “strict scrutiny” standard SB 129 would establish in Georgia, said religious beliefs did not protect a florist from refusing to provide arrangements for a same-sex wedding.
Third, McKoon has gone to great lengths to ensure his legislation mirrors the 1993 federal Religious Freedom Restoration Act, as was demanded of him last year. That’s in large part because the federal law has such a long track record in court cases, meaning its effects in Georgia would be fairly predictable. To seek the addition of new language now is a significant departure from that earlier demand. And to base it on the fact that other states have such clauses is to ignore that many of these same people have been wary of adopting other language from other state religious-liberty bills. Not to mention that critics of this bill have shown no signs of seeking similar changes — or the outright repeal — for the federal law or other states’ laws, which suggests a certain disingenuousness and bad faith on their part. They can’t have it both ways.
And finally, I can see why McKoon and Teasley might take it as a personal affront that, despite all the evidence they have presented and the gaping lack of evidence on the side of their critics, even some of their ostensible allies would essentially tell them, we don’t believe you.
So, yeah, I can understand why McKoon and Teasley would be skeptical, at a minimum, of this sudden amendment push.
All that said, if an amendment can be sufficiently tailored to avoid creating new problems, I don’t know that superfluousness is reason enough to reject it. Call it acting out of an abundance of caution. Call it taking the high road to prove their good intentions. In the end, the bill isn’t about protecting abusers or discriminators. As long as we can be sure there wouldn’t be any unintended consequences, this might be the way to turn this bill into law and move on.