Is anti-discrimination language needed in religious-liberty bill?

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.

Josh McKoon

Josh McKoon

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.

Reader Comments 0

117 comments
MarkVV
MarkVV

It is interesting to see how many times Kyle repeats that ”this is the same legal test used in federal cases and in state/local cases in 31 other states” instead of documenting why the law is needed in Georgia.

Kyle_Wingfield
Kyle_Wingfield moderator


@Wascatlady Just as I love the "comment on an issue based on assumptions rather than facts" crowd.

HollyJones
HollyJones

If there is federal law regarding religious liberty, then why the need for a state law, since, as we all learned in civics class, federal law supercedes  state law.  The law itself is superfluous.   And it makes Georgia, not for the first time, look foolish.  Oh how I wish our elected "leaders" would focus on the real issues that are under their purview instead of creating panic over boogeymen under the bed.  But that would require leadership and hard work, both of which are deeply lacking in our elected officials at every level.  

Kyle_Wingfield
Kyle_Wingfield moderator

@HollyJones There is a need for a state law because the U.S. Supreme Court ruled in 1997 that the federal RFRA could not be applied to the states. Since then, the legal standard included in RFRA has been adopted by 31 states. I'm not sure how Georgia could "look foolish" by joining them.

Sam_Hill
Sam_Hill

I know using the word "evolved" will cause trouble on Kyle's blog, but it is interesting to see Mike Bowers and Ted Olson, who I would argue are more qualified to comment on legal issues than Kyle, respectively oppose Georgia's unnecessary religious liberty bill and bans on gay marriage.


This is not about protecting anyone's rights to religious freedom, it is a political statement that this state is still about hating and fearing people who are different than the majority.


No surprises there. The bill will pass without this amendment and will be signed by the Governor.




Kyle_Wingfield
Kyle_Wingfield moderator

@Sam_Hill Is "hating and fearing people" the reason this became federal law in 1993 and state law in 31 other states since then?

Lynn43
Lynn43

This bill is not needed. 

cancunmark1959
cancunmark1959

We already have this settled in the 1st Amendment so this is just another solution in search of a problem.  If they want to waste even more time on bills like this and not address real problems, then go for it.  This is the legislative body people voted in and then they complain that government doesn't get anything done. 

Kyle_Wingfield
Kyle_Wingfield moderator

@cancunmark1959 "We already have this settled in the 1st Amendment so this is just another solution in search of a problem."

Is that why Congress passed this law in 1993?

For you and all the others on this blog who apparently have no idea what this law would do: The law simply establishes the legal test courts are to use when a religious objector challenges a state or local law. This is the same legal test used in federal cases and in state/local cases in 31 other states.

IReportYouWhine
IReportYouWhine

Change the words "being a Christian" to "opposing gay marriage" and we can show you plenty of harassment. 


And we should change the words.

Hedley_Lammar
Hedley_Lammar

@Kyle_Wingfield @HeadleyLamar No I dont


I oppose it because its s slippery slope from here and a complete waste of time


When the majority starts passing laws saying THEY are being persecuted


It usually doesn't end well.

Hedley_Lammar
Hedley_Lammar

@LilBarryBailout  Read it and replace "religion" with "speech" and then tell us why it's soooooo objectionable.


Because it is addressing a problem that doesn't exist. We are still about last in the nation in unemployment


Don't you think we should be worrying about that instead of chasing unicorns ?

Kyle_Wingfield
Kyle_Wingfield moderator

@HeadleyLamar Well, you in particular, Headley, oppose it out of ignorance. There's a word for that ...

Hedley_Lammar
Hedley_Lammar

@Kyle_Wingfield @HeadleyLamar LOL


They were banned from campus FOR harassing other people. 


LOL


Man if that is the best you can dig up.....


WOW


Oh and Kyle that was 7 years ago.....Ancient history 

Kyle_Wingfield
Kyle_Wingfield moderator

@HeadleyLamar "When the majority starts passing laws saying THEY are being persecuted."

Actually, critics of the bill are the ones talking most about the "persecution" thing. This bill would apply equally to people of all faiths. And if it's a "complete waste of time," please tell us a) which legal standard courts should use to settle conflicting claims involving religious freedom, and b) where that standard is established in Georgia.

Hedley_Lammar
Hedley_Lammar

@Kyle_Wingfield @HeadleyLamar In any case, you asked for "one example." I gave you one.


You did


And incredibly flimsy one from 7 years ago. 


Bravo


And my 7 years comment was in reference to your 4 years ago Sharia bill comment. 

Kyle_Wingfield
Kyle_Wingfield moderator

@HeadleyLamar The difference, of course, being that I told you there is no bill concerning sharia now, and you asked for an example of something that, by definition, had to be in the past.

But I know you don't do "nuance" and "context" and "facts."

Hedley_Lammar
Hedley_Lammar

@Kyle_Wingfield @HeadleyLamar a) which legal standard courts should use to settle conflicting claims involving religious freedom, and b) where that standard is established in Georgia.


Somehow we have survived this long with what we have now.

Hedley_Lammar
Hedley_Lammar

@Kyle_Wingfield Either way have a good weekend everybody.


Hopefully everyone will make it to Church on Sunday and not be persecuted on the way.

Hedley_Lammar
Hedley_Lammar

@LilBarryBailout  Liberals oppose the bill because they fear it will deprive them of opportunities to force their beliefs on people of faith.


We oppose it for the opposite reason.


We wish to deprive Christians the opportunity to force their beliefs on others and use those beliefs to discriminate.

Kyle_Wingfield
Kyle_Wingfield moderator

@HeadleyLamar http://savannahnow.com/coastal-empire/2007-03-07/christian-group-files-suit-against-ssu

The case was settled, so we don't know how a court would have ruled.

In any case, we know that a) there have been RFRA cases in other states and involving the federal government, and b) there is nothing unique about Georgia that would necessarily prevent similar cases from being brought here, and c) all of the items in your parade of horribles have been proven wrong in other courts.

Kyle_Wingfield
Kyle_Wingfield moderator

@HeadleyLamar "They were banned from campus FOR harassing other people."

You forgot the scare quotes around "harassing" -- the alleged harassment was washing people's feet, something Jesus did after the Last Supper.

In any case, you asked for "one example." I gave you one. And, of course, an example of something that happened will by definition be something from the past.

Starik
Starik

Couldn't our Republican led General Assembly devote some time to more significant issues?  How about an amendment to allow the Dunwoody School System, or the Alpharetta-Milton System, or Milton County?  Why waste time on this? 

Hedley_Lammar
Hedley_Lammar

 I wonder if anyone has bothered to see how many of the same people signed the House RFRA bill and the House Anti-Sharia bill.....


Saw this posted somewhere else. 


Would be interesting indeed to find out the answer. 

Hedley_Lammar
Hedley_Lammar

@Kyle_Wingfield @HeadleyLamar The 'American Laws for Georgia Courts Act' was recently introduced in both chambers of Georgia's General Assembly. The bill would amend Georgia law so that "no court, arbitrator, administrative agency, or other tribunal shall enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States."

While Georgia's bill is aimed at banning Sharia, it doesn't explicitly mention it -- a strategy employed in similar bills introduced other states.


http://talkingpointsmemo.com/muckraker/anti-sharia-bill-introduced-in-georgia


That one then...call it whatever you like.

Kyle_Wingfield
Kyle_Wingfield moderator

@HeadleyLamar Um, that was four years ago. And guess what? It didn't even make it out of committee, much less pass.

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic Not the same thing. The "foreign law" thing is a much, much broader issue. It's about courts potentially citing, say, some crazy ruling from the European Court of Human Rights establishing 5 weeks of vacation as a new "human right."

Kyle_Wingfield
Kyle_Wingfield moderator

@Question the Logic I didn't recall the language of HB 45. You are right, they are similar. But I would still say that attempts to block the application of foreign law by American courts is broader than just sharia.

Capt Tom
Capt Tom

See, here's the perception that all these machinations is creating:

"It is not the purpose of this bill to allow discrimination....but, we don't want the bill to explicitly PROHIBIT its use or interpretation in attempts to discriminate, because we actually are OK with that."

Kyle_Wingfield
Kyle_Wingfield moderator

@Capt Tom And whose fault is it when the amendment that caused these "machinations" -- otherwise known as parliamentary procedure, used in every legislature in this country -- is overly broad? Is it the bill's sponsors' fault? Sorry, but I don't see it that way.

Capt Tom
Capt Tom

@Kyle_Wingfield Nobody's fault, and I have no problem with procedure.

There are RFRAs in other states that DO include language addressing/protecting anti-discrimination statutes. Many wanted this one to do likewise. So the Senator balked at that saying he wanted to stay as close to the federal RFRA language as possible, but then ADDS language both expanding the definition of "exercise of religion" and raising the bar the state or other govt entity would need to meet for "compelling interest", which contradicts the stated desire to mirror the federal language.

The process is designed to "perfect" the bill, either in committee or in the chamber. If an amendment is too broad, that can be addressed. But...as I stated below...the APPEARANCE as of now is that an amendment that addresses the PERCEIVED ability for the legislation to be used to justify discrimination in the public marketplace is not wanted by the author in any shape or form.

LilBarryBailout
LilBarryBailout

People who cheerlead for Obozo's efforts to take control of the internet and regulate it as if it were a 1930s telephone service have forfeited the right to complain about passing laws that "aren't needed".

RafeHollister
RafeHollister

@LilBarryBailout Well, actually the problem is the internet works too well.  Hard to suppress stories that are not favorable to the regime, without some regulations.

Jefferson1776
Jefferson1776

The gays won their wedding cake case suit,  now didn't they....

Kyle_Wingfield
Kyle_Wingfield moderator

@LilBarryBailout It doesn't have any impact regardless of how many cake shops there are, because, as courts in other states have ruled, refusing service in that way is an act of discrimination that RFRA doesn't protect.