After much delay, the state House is about to move forward with a rewrite of House Bill 757, the religious-liberty bill that bounced between the chambers earlier in this session.
I am sure lawyers on both sides of the issue will delve intensely into the text over the next few days, but here is an overview of and some initial thoughts on the bill (which you can read here):
- Section 2 of the bill protects clergy members’ right to perform, or refuse “to solemnize any marriage, perform any rite, or administer any sacrament.” It does not define marriage, including the number of people involved, their ages or relationships with one another. It’s not clear to me whether existing legal definitions of, and restrictions on, marriage would apply here. But it is talking about religious ceremonies, not state recognition of such.
- The same section states: “All individuals shall be free to attend or not attend, at their discretion, the solemnization of any marriage ….” That appears to be an effort to exempt sole proprietors from participating in a ceremony to which they object, but not businesses any larger than that.
- Section 3 says businesses cannot be required by government to be open on either Saturday or Sunday. This was part of HB 757, a.k.a. the Pastor Protection Act, when it passed out of the House the first time.
- Section 4 says a “faith based organization” — defined as an exempt religious organization under Section 501(c)(3) of the Internal Revenue Code, which means it’s a non-profit — is not required “to rent, lease, or otherwise grant permission for property to be used by another person for an event which is objectionable” to that organization. This was also part of HB 757 when the House passed it 161-0.
- The same section says a faith-based organization cannot be forced “to provide social, educational, or charitable services” that violate its “sincerely held religious belief.” This does not, however, get such an organization out of a voluntary contract with government.
- Section 5 says a faith-based organization has the right to fire or not hire a person “whose religious beliefs or practices or lack of either” violate the organization’s sincerely held religious beliefs.
- Section 6 includes the text of the federal Religious Freedom Restoration Act of 1993 (RFRA), the law that sets the strict scrutiny standard for free-exercise cases involving the government. It also includes a non-discrimination clause “with respect to interactions which affect the rights or interests of third persons” — which would include a discrimination claim by an individual against a business. The clause prohibits “invidious discrimination on any grounds prohibited by federal or state law.” That would seem to include sex-based discrimination under Title VII of the federal Civil Rights Act, which the federal EEOC has interpreted to include discrimination based on gender identity and sexual orientation. So, while local non-discrimination ordinances such as Atlanta’s which include LGBT persons are not specifically mentioned, the federal law might cover them anyway.
So, what’s the bottom line?
This is a narrower bill than the Senate passed when it attached the so-called First Amendment Defense Act to HB 757, particularly the language limiting its effects to wedding ceremonies and religious organizations. It includes the kind of non-discrimination clause discussed for RFRA, although I have yet to hear from LGBT advocates as to whether it’s enough of a protection in their eyes. House members speaking in opposition to the bill suggested they don’t think it is. (Of course, RFRA supporters, including myself, have always maintained that no court has ever cited the law as a justification for discrimination anyway.)
The language regarding faith-based organizations does give them some narrow allowances that some people will no doubt describe as “state-sanctioned discrimination.” The questions for them should be:
Would you require pastors to perform weddings to which they object?
Would you force churches (or synagogues, or mosques) to let others use their private property for weddings and other events to which they object?
Would you force an individual to attend a wedding or other religious ceremony to which he or she objects?
Would you require a religious school to hire or retain a person whose personal religious beliefs clash with that of the school?
And so on. After all, the opposite of giving people freedom not to do these things is requiring them to do so. The entire debate has been about how to protect one person while not trampling on another person’s rights. That is a careful balance to strike, a difficult one to strike, but it is the proper role of the legislature, rather than courts, to strike that balance.