Why an anti-discrimination clause guts a bill not intended for discrimination

Gavel

The House Judiciary Committee on Thursday struck a potentially fatal blow to religious-liberty legislation by adding an anti-discrimination clause to the bill. After a 9-8 vote to add the clause, the committee voted to table Senate Bill 129. That puts it on its death bed for this session, and perhaps for good.

The sponsor of the amendment, Rep. Mike Jacobs, R-Brookhaven, cast it in this light: Supporters of the bill have said the intent is not to legalize discrimination, so why not put that in the text? There were also references during the committee’s hearing on the bill to the “context” in which it was being discussed — namely, at a time when gay rights are ascendant.

I agree the timing and context have colored the discussion, but not in the way the bill’s critics argue. I believe the context has rendered normally clear-thinking people incapable of examining the issue as pertaining to anything other than gay rights. By doing so, they have taken a dangerous step toward pitting religious rights as being necessarily in conflict with gay rights — a situation that neither side should want.

For the sake of argument, let’s say the Legislature is not going to allow discrimination against gays and lesbians, and that SB 129 ends up becoming law with the Jacobs amendment intact. What, indeed, would be wrong with language that would prohibit religious liberty as a defense in matters of “discrimination on any ground prohibited by federal, state or local law,” as that amendment put it?

The short answer is: a lot. Here are three examples — completely unrelated to the question of gay rights — of how such language would, as bill sponsor Sen. Josh McKoon, R-Columbus, put it, “negate the purpose of the bill.”

1. In January 2017, newly inaugurated President Hillary Clinton decides to respond to the Supreme Court’s 2014 Hobby Lobby ruling by issuing an executive order declaring fully subsidized contraception, regardless of type, to be a “fundamental right” in this country. A Georgia woman, realizing her chances in federal court may remain cloudy due to Hobby Lobby, instead sues the small business owned by devout Catholics where she works in state court, citing the aforementioned non-discrimination clause. (Curiously, a vocal critic of SB 129 suddenly brought up the issue of “reproductive rights” vis-a-vis the bill during Thursday’s debate.)

2. In June 2015, the U.S. Supreme Court declares same-sex marriage to be legal throughout the land under the Equal Protection Clause. President Obama follows up on that ruling with a broad executive order prohibiting discrimination against any individuals wishing to adopt a child. A faith-based adoption agency, not wishing to invite a lawsuit, enacts a rule requiring that adoptive parents be married, but not barring gay married couples, on the rationale that children need two parents in a committed relationship. Instead, an unmarried, heterosexual couple — or a single, heterosexual man or woman; it really doesn’t matter for this illustration — sues, citing the “discrimination on any ground” clause.

3. In 2016, a county commission or city council in Georgia passes an ordinance requiring any food assistance provided to residents to include certain goods, citing the fundamental right to quality, nutritious food. Among the items required are “coffee and/or tea.” A Mormon church that operates a food bank objects, on the grounds that it should not have to expend money, time or effort to procure and distribute items with caffeine, which it considers a drug.

None of these cases has anything to do with gay rights. And yet, in all three cases, a “discrimination on any grounds” clause would most likely kill any chances of success in court the religious party had.

That is why such broad language negates the purpose of a bill whose intent has nothing to do with discrimination.

If you think my examples ridiculous or extreme, consider the position of the bill’s critics, which is that the unprecedented (this statutory language being successfully used as a defense in a discrimination case) is inevitable.

I’m no lawyer, but I have to think it is possible to craft anti-discrimination language that isn’t so broad as to become a blueprint for any government that wishes to circumvent any religious protection, simply by deeming the matter related to “discrimination.” It is telling that critics of the bill who claim to be all for protecting religious liberty, just not discrimination, didn’t offer language narrowly tailored to address their stated concerns. But it is flatly absurd that Republicans in Georgia who are sympathetic to the critics couldn’t be bothered to figure out what that narrower language needed to be.

*This post was updated to correct that Jacobs is a Republican representing Brookhaven, not Dunwoody.

Reader Comments 0

131 comments
David Daily
David Daily

Now that Gov Pence in Indiana has asked for clarification of their similar law, perhaps Gov Deal should do the same. Just table the bill for this year and let this storm pass Georgia by.

Starik
Starik

Look at all the attention Indiana is getting. Georgia is building movie studios and our film industry is booming. Hollywood is not known for religious fundamentalism. This law will be bad for business.

DeborahinAthens
DeborahinAthens

I love the way Right Wing Conservative religious people twist themselves into pretzels trying to say legislation of this type is "not discrimination". Watching the Governor of Indiana refuse to answer a yes or no question was laughable. Here's what gets me about the hypocrisy of their rhetoric. You all know this type of bad legislation is discriminatory. We rational people know you know it is discriminatory. So, if you all are standing for your principles as you keep insisting, then why is it that none of you spineless people "own" your own legislation? When asked if his law was going to discriminate against gays and lesbians--as the Indiana Governor was asked at least five times by George Stephenopolus--all he had to do was say yes. He didn't have the backbone to do that. My mother used to say that if you didn't have the courage to defend your position or actions, maybe you shouldn't have them. Kyle, your examples are ludicrous. All can be determined by the courts without this horrid legislation. Legislators, stop wasting time on this and do some real work.

Kyle_Wingfield
Kyle_Wingfield moderator

@DeborahinAthens "All can be determined by the courts without this horrid legislation. "

This is where your ignorance shows.

The entire purpose of the bill is to tell courts where the line is drawn in cases involving religious-liberty claims against government actions. Tell us, if not this standard, which standard should be used? Which one will be used? Why?

GMFA
GMFA

@DeborahinAthens It does not appear that they want separation between State and religion.

MarkVV
MarkVV

@DeborahinAthens 

It would appear that in Kyle’s view, courts cannot deal with laws against discrimination without some additional instruction. The real purpose of the proposed law, of course, is to make a legal action against a discriminatory action so difficult that people would be discouraged from going to the court.

lvg
lvg

The only reason for this bill is for conservative Republican legislators to show their religious fanatic bona fides. Same reason they vote for any NRA backed legislation that gets put before them.

LilBarryBailout
LilBarryBailout

Now that Indiana and many other states have passed RFRA bills, isn't it incumbent upon opponents to provide us with examples of such laws allowing discrimination against gays to occur?

Put up or shut up!

332-206
332-206

Supporters of a bill verbally assure everyone that no discrimination is intended. When those assurances are reduced to writing, they withdraw support of the bill.

Well that's logical.

Says no one, ever.

Kyle_Wingfield
Kyle_Wingfield moderator

@332-206 And ignoring that the "assurances" put in writing are overly broad -- does that pass for logic?

eTalker
eTalker

Religious people never stop hating.

straker
straker

Kyle - "so no law that will ever be challenged in court should ever be passed"


I said nothing of the sort. Its just that this particular bill has "court challenge" written all over it.

MarkVV
MarkVV

When supporters of a bill object to an amendment prohibiting discrimination in the application of the law, there is no need to spend much time pondering whether the law will have a discriminatory effect or not. Concocting fanciful situations in which the accusation of discrimination would lead to some imagined adverse consequences only emphasizes the paucity of the argument. There is little doubt that the debate of the civil rights act provoked the same kind of warnings about “unintended consequences.”

MHSmith
MHSmith

What we know is this religious liberties issue will go before the SC a number of times in the future. This SB 129 bill  is not going to pass into law but this defeat will not end other attempts going forward.

Indiana Law Denounced as Invitation to Discriminate Against Gays

....Eric Miller, who lobbied for Indiana’s new law as head of the group Advance America, said it could help Christian bakers, florists and photographers avoid punishment for “refusing to participate in a homosexual marriage”, protect a Christian business that refuses “to allow a man to use the women’s restroom”, and insulate a church that refuses to allow it premises to be used for a gay wedding.



http://www.nytimes.com/2015/03/28/us/politics/indiana-law-denounced-as-invitation-to-discriminate-against-gays.html?_r=0

ALibNotToBeMessedW/
ALibNotToBeMessedW/

Would anyone care to remind me why we need this religious freedom law anyway?


And if you're, say, the owner of a restaurant, and you, say, open yourself to the public, then serve the public, take their money, and shut up about it.  And if you don't want to serve blacks or gays or women or Jews or muslims or whatever, start a private club.

LilBarryBailout
LilBarryBailout

Gotta love all the pleading for examples of infringements of religious freedom.

Shall we apply the same standard to the FCC regulating the internet as if it were a 1930s telephone system?

straker
straker

Kyle, we both know that if this religious liberties bill is passed, sooner or later someone will challenge it in court and it will eventually wind up in the Supreme Court.


So, lets just skip this, don't pass it and, if these three examples of yours ever happen, let them be decided by the courts using the laws we now have on the books.

Kyle_Wingfield
Kyle_Wingfield moderator

@straker So no law that will ever be challenged in court should ever be passed? Novel theory.

PaulinNH
PaulinNH

@Kyle_Wingfield 

I agree it is a novel theory.  It is somewhat similar to a theory that the law should not be amended because of 3 hypothetical situations that might occur 2 or 3 years from now.

Kyle_Wingfield
Kyle_Wingfield moderator

@PaulinNH I didn't say it shouldn't be amended. I said any amendment should be more narrowly tailored than that one.

Gandolph
Gandolph

@straker So, if I understand you proposition, you want the courts essentially to legislate from the bench.  Further, if I follow your logic, we don't have a need for a legislative branch, just a king and a court.  Uh, no. We already have that at a Federal level, thank you very much.

FIGMO2
FIGMO2

Interesting examples, Kyle.

They put me in mind of the old adage(s).

Where one man's freedom begins, another man's freedom ends and vice versa...

OR

when one door closes, another opens. 

GaGirl53171875
GaGirl53171875

AND Jesus said we should care for the children. How many kids are hungry and homeless in Georgia today because of GOP policies? The moral majority my bottom.

LilBarryBailout
LilBarryBailout

@GaGirl53171875

Easy.  Zero.

If kids are hungry and/or homeless in Georgia, it's because their parents aren't caring for them properly and caring leftists aren't donating enough to charity to make up the difference.

LilBarryBailout
LilBarryBailout

@GaGirl53171875

And do tell us how you are following Jesus' teaching in this regard.

Do you believe the government should be in the business of enacting Jesus' teachings into law?

Capt Tom
Capt Tom

Jon Richards and Charlie Harper came up with an interesting scenario going forward: Let the current version die (mercifully) this session while setting up a study committee to work on perfecting another version over the break...while ALSO crafting a separate STATE-WIDE civil rights statute (since Georgia remains one of the very few states without one).

GaGirl53171875
GaGirl53171875

if religious companies do not want to serve people because of their lifestyle or these companies don't want to give women complete healthcare then they should go out of business. There is no room for discrimination in the USA.

Additionally, Christians in the South especially are really stuck on the notion that other people's lifestyles and bodies are their business. These folks need to mind their own business and keep their noses out of everyone else's business.

AND a lot of these people are screaming out of the other sides of their mouth that the govt needs to stay out of their lives. Hypocrites!

Kyle_Wingfield
Kyle_Wingfield moderator

@GaGirl53171875 "Christians in the South especially are really stuck on the notion that other people's lifestyles and bodies are their business"

The language of this bill is the law of the land regarding the federal government, and it is state law in 30-plus states that spread across all geographic regions.

Kyle_Wingfield
Kyle_Wingfield moderator

@Wascatlady Because, as I have explained before, a Supreme Court ruling said Congress overstepped its authority in applying the law to the states.

GaGirl53171875
GaGirl53171875

Specific examples of the laws that infringe on religious rights please.

GaGirl53171875
GaGirl53171875

religious liberty is already guaranteed in this country. The religious citizens have every right to practice their religion. The bills are a waste of time, a waste of taxpayer money and they take legislators away from the JOBS bills they should be working on. Your religion is YOUR business. Keep it at home. Freedom of religion does not mean the freedom to trample on the rights of others. AND many of the folks who came from Europe to settle this country, came here because folks and their RELIGIONS were persecuting them.

Kyle_Wingfield
Kyle_Wingfield moderator

@GaGirl53171875 "religious liberty is already guaranteed in this country"

So, tell us, does Congress truly "make no law" regarding free-exercise? Does the Legislature? Local governments? 

No. Governments at all levels make laws that infringe on free exercise: sometimes a lot, sometimes a little. For those times when a person feels the law (or other government action) would infringe on his/her free exercise too much, this law tells the court where the line is drawn. The law/action has to "substantially burden" the free exercise; if it does, it is still permissible if it serves a "compelling government interest" in the "least restrictive way."

And, since we're talking about discrimination: Courts have consistently found that preventing discrimination is a compelling government interest, and that banning discrimination is the least restrictive way of achieving that interest. 

GMFA
GMFA

@Kyle_Wingfield @GaGirl53171875 Kyle you do realize that there is more than one religion, and if so, I am sure you will be tolerant of what they ask for in this Bill.

GMFA
GMFA

@GaGirl53171875 I did remind Kyle there is more than one religion so tolerance for all of them must be practiced. We shall see how that goes if this bill passes.

Kyle_Wingfield
Kyle_Wingfield moderator

@GMFA I'm confident I'll be more tolerant toward them than most of the people commenting on this post, judging by their comments.

GaGirl53171875
GaGirl53171875

Specific examples on laws that infringe on the free exercise of religion.

MHSmith
MHSmith

@GMFA @Kyle_Wingfield @GaGirl53171875 

I certainly do and I respect their right to practice their religious beliefs provided those beliefs are not forced on anyone else or do bodily harm to another. 

And I vehemently oppose any government laws, now or in the  future that would force any religion to practice or participate in any act  or ceremony in their Temple, Church or Synagog that is disobedient to their God or conscience.  



MHSmith
MHSmith

@Kyle_Wingfield @GaGirl53171875 

Depends on the bases for the discrimination Kyle. Discrimination against the "content of character" or "conduct of the container". A employer can fire or refuse to hire a person simply because they do not like them eg "content of character" or "conduct of the container".

Right to work laws are discriminatory. :)

MLK discriminated against the "content of character" or "conduct of the container".


Gandolph
Gandolph

@GMFA @GaGirl53171875 It won't pass because it has been gutted by Rep. Mike Jacobs, R-Dunwoody.  Tabled means won't be considered.

ByteMe
ByteMe

Your three examples are nonsense.  The first one is an executive order which is not considered a "law" except within the executive branch, so it wouldn't apply except if the executive branch decides to apply it with any organization with which it does work.  Other two examples would depend on whether the government is funding those agencies to do that work; if not, they're already free to discriminate however they want and will continue to be allowed to do so.  If they take government money, NO DISCRIMINATION based on your crazy set of beliefs that aren't grounding in anything other than bigotry.  Pretty simple.  A discriminatory bill isn't needed for that.


So... I call "nonsense".  On the other hand, at least you weren't regurgitating someone else's work with weaselly words to act like maybe you agree with it but not really.  This time you took a position and you should do that more often even if I think you're totally wrong.


Have a great weekend, Kyle.

Kyle_Wingfield
Kyle_Wingfield moderator

@ByteMe You might have a point about the executive order, but in that case simply say Clinton signed a law to that effect passed by a newly reinstated Speaker Nancy Pelosi and new Senate Majority Leader Chuck Schumer.

"Other two examples would depend on whether the government is funding those agencies to do that work..."

That's not at all true. Do public accommodations laws only apply to restaurants and hotels that take public money? No. Remember, the phrase was "discrimination on any ground..."

"This time you took a position and you should do that more often"

I wasn't aware I didn't take positions very often. 

Lukasatl
Lukasatl

This lightning rod bill has served its purpose and will now be (most likely) killed. Its true purpose was to attract media and public attention and thus distract the media ( and public) from other bills. Like the current iteration of SB 94. 

When one hand is being waved around erratically in front of your face, pay attention to what the other hand is doing behind the back ...

Visual_Cortex
Visual_Cortex

I must say, those three hypotheticals Kyle offers feature some incredibly unsympathetic "wronged" parties.

Kyle_Wingfield
Kyle_Wingfield moderator

@Visual_Cortex Isn't that why we have things like freedom of religion, speech, etc.? Sympathetic parties don't need a whole lot of protection.

Visual_Cortex
Visual_Cortex

@Kyle_Wingfield @Visual_Cortex

Sympathetic parties don't need a whole lot of protection.

Sure. Of course. I get that.

But if you're trying to make a case for why one should care, sympathetic parties sure help to tell the tale.

All I'm getting from this is that a "devout Catholic" employer might have to cover icky ladypart insurance, and that an adoption agency might have to defend its "no single parent adoptions" policy, and that Mormons might inexplicably wish to get out of the relief biz because... caffeine?


Kyle_Wingfield
Kyle_Wingfield moderator

@Visual_Cortex You don't care for various religious beliefs. Fine. I drink plenty of caffeine and don't have a problem with most forms of contraception (neither did Hobby Lobby's owners, BTW). I don't judge the importance of religious rights by my agreement or capacity for sympathy with them. We're in a whole lot of trouble if that becomes the standard.