After three years of having religious-liberty bills on the Legislature’s agenda, there are three results:
Politicians and even many activists are tired of talking about it. I’m tired of writing about it. You’re probably tired of reading about it.
Like entrenched combatants, however, neither side is able to advance or willing to retreat. I see three possible outcomes: First, a court case that changes the legal, and thus legislative, landscape (which is what produced the federal Religious Freedom Restoration Act). Second, nothing changes.
Or third, we stop treating this like war.
A state RFRA should have no effect on the LGBT community, as two decades of case law show. Yet some people — on both sides of the issue — speak as if it will. We are at a point where the perception of the issue means there will be economic consequences there needn’t have been if the bill is passed, and political consequences if it isn’t. Both sides need an acceptable partial victory.
The outlines exist. But filling them in will probably take us into uncharted territory, and it would be a large mistake to try that within the time constraints of this legislative session.
So we need an opening that leaves both sides unsated and ready to stay at the table. An appetizer, not a hushpuppy.
Let’s start with the main course, though, and work our way backward. What the LGBT side needs is freedom from discrimination. What the religious-liberty side needs is freedom of conscience for those who do not wish to be personally involved in same-sex marriages. The overlap of these interests is narrower than the rhetoric might indicate. It calls for a very narrow, specific and nuanced solution.
The place for crafting such a solution is the Legislature, not the courtroom. But again, the time for doing so is not a hurried, election-year session.
Rather, such a solution needs the attention, insulation and transparency of a small study committee, comprising legislators with credibility and respect from both sides of the issue. They need months, not days, to do that kind of work.
They also need a starting point in the law, something to build upon, but not something that gives either side so much it might be tempted to walk away from the table.
On the merits, that starting point would be the state’s incorporation, verbatim, of the federal RFRA and federal law prohibiting discrimination in public accommodations on grounds of race, color, religion or national origin. Georgia lacks both. But I’m a realist, and I’d expect the LGBT side to call that an unfair trade.
The public accommodations law is the right starting point, without adding sexual orientation as a protected class, which the study committee instead should evaluate. But what would replace RFRA?
One option is the so-called Pastor Protection Act. It’s not worth much on its own: You either believe existing law protects religious liberty, despite decades of erosion in the courts, or you don’t, but it makes little sense to further protect only those who are most clearly protected now.
As an explicit starting point for further discussion, however, it could work. That would require some good faith on both sides, which has been lacking. Then again, given the poor results of the past three years, maybe it’s time to try something different.