Either way, Georgia’s religious-liberty fight is headed for the courts

A prayer rally led by evangelist Franklin Graham at Liberty Plaza, Feb. 10. (AJC Photo / Bob Andres)

A prayer rally led by evangelist Franklin Graham at Liberty Plaza, Feb. 10. (AJC Photo / Bob Andres)

When I talk to people on both sides of the debate over Georgia’s religious-liberty legislation, what’s surprising is how similar the conversations are.

Each side says it’s fighting for a fundamental right the other seeks to trample. Each side cites harms it expects if it loses. But neither side has very many examples of these harms already playing out in Georgia, where LGBT citizens are not a protected class and where free exercise of religion is protected by a lower legal standard than other First Amendment rights.

And, when asked about the harms the other side anticipates — churches being forced to rent their fellowship halls for same-sex weddings, or gay couples being denied a table at a restaurant — they both have the same answer: Well, that will never happen.

Of course. Only the bogeymen I see are real. Only the harms to my side are unconscionable.

All of this has helped make this long-running debate one of the most frustrating I’ve seen at the Capitol.

There’s not a lot of empathy on either side, frankly. LGBT advocates don’t seem too interested in the practical and spiritual ramifications if, say, a Catholic adoption agency must choose between adhering to the tenets of its faith and maintaining the support that’s vital to staying open. Nor do I sense many members of the faith community have devoted much thought to the grief a gay couple might feel if such an agency represents their best opportunity to raise a child, and they’re turned down.

It’s easier to holler about “discrimination” or “liberty,” as if either is a one-way street.

What we needed was collaboration to produce a law both sides could live with. It appears, however, that too many people are uninterested in the “give” such an exercise would take.

Instead, both sides seem resigned to the inevitability of litigation of the slight, but real, overlaps between their rights and interests. The lawsuits will come regardless of whether Gov. Nathan Deal signs House Bill 757, which legislators passed Wednesday. They were inevitable the moment last summer the U.S. Supreme Court declared same-sex marriage legal, opening up a huge tract of unmapped legal ground.

The imperative all along has been for legislators to draw the rough outlines for answering these questions, leaving the finer details to the courts. That’s how our system of self-governance is supposed to work. The alternative is handing judges a mostly blank slate and hoping they’ll return a pretty legal picture. That’s the kind of uncertainty our system is supposed to prevent.

HB 757 is an effort to reduce that uncertainty. There’s little question it favors the faith community, mostly by freezing in place some elements of the status quo (see here for a detailed explanation of that). But not others: Its concrete effects remain in the religious, non-profit sphere, not the stream of commerce. It raises the legal bar for government infringement on religious belief, but with important, if not absolute, caveats.

In short, I don’t think it’s the discriminatory bill its opponents claim, some in press releases they may as well have written before they saw the final bill. If I thought it were, I would oppose it because that’s never been my aim.

It’s probably the best rough outline the legislative process could give us. The judges will have to take it here. I’m afraid we were never going to avoid that.

Reader Comments 0

62 comments
Lil_Barry_Bailout
Lil_Barry_Bailout

There's no justification for protecting religious freedom any less vigorously than free speech.  Unless you're a bigot.  And liberal fascists are working on infringing our free speech rights, too (aka "overturning Citizens United").

MarkVV
MarkVV

Why does not Kyle, or other supporters of the bill, present some specific cases, even just hypothetical, in which the law would be applied, so that we can make a judgment of a) whether they realistically can be expected to happen, or b) whether they would represent discrimination?

(For instance, they can cite the provision that you cannot be forced to attend a gay wedding, and we will instantly know what to think about it.) 

Lil_Barry_Bailout
Lil_Barry_Bailout

@MarkVV

An elderly lady supplements her meager Social Security benefit by baking wedding cakes.  As is customary, she sets up her fancy, multi-tiered cakes for the bride and groom.  Except now a gay couple wants her to bake a cake and set it up for them, which requires her attendance at an event she objects to based on her religious beliefs.  She refuses, and the intolerant gay couple, determined to teach her a lesson rather than find another baker from among the hundreds in the area, sues.

Wascatlady
Wascatlady

Hey, let's waste more time and money and make a law that does not change anything!  Oh, wait, that would be stupid.  So let's make it just change things a little, and maybe no one will notice.


So either it is a waste of time because it does not change anything, or it DOES change something Rs want changed.


Which is it?

ChristopherATL
ChristopherATL

Thank you to all out there supporting equal rights for the LGBT community!  Thank you for standing for human rights for ALL human beings!  As well as a thank you to the NFL, Apple, Microsoft, Dell, Verizon, AT&T, Google, Twitter, Porsche, Marriott, Embassy Suites, Delta, UPS, Honeywell, American Heart Association, American Stroke Association, Arby's, Alcoa, Atlanta Braves, Atlanta Hawks, Atlanta Falcons, Atlanta Dream, Bank of America, Cancer Treatment Centers of America, Chase, Wells Fargo, Bank of America, Suntrust, Clear Channel Communications, Coca Cola, Cox Enterprises, American Airlines, Dow, Equifax, Hilton, Kaiser Permanente, MailChimp, Target, Nordstrom, SalesForce, Ruth's Chris, Sheraton, Synovus, Turner Broadcasting, Mercedes and close to 500 others.

jezel
jezel

@ChristopherATL Any idea about where Chic fillet stands ? Trying to decide if I want to stop in there.

ChristopherATL
ChristopherATL

@jezel @ChristopherATL Who?  Any business that treats others like second class citizens (black, LGBT, Muslims, Christians, whoever) do not exist in my eyes.

Jefferson1776
Jefferson1776

Rights do not overlap.  Human rights trump all.

Kyle_Wingfield
Kyle_Wingfield moderator

@Jefferson1776 "Rights do not overlap."

So the entire judicial record of constitutional law cases throughout history, which answer the question of competing rights and interests, was unnecessary?

Caius
Caius

" "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

That seems pretty cut and dried to me."

Well in constitutional law nothing is cut and dried.  That is why there is a long list of 1st Amendment religion cases that the Court has decided. 

It took the Court to decide that the EEOC could not tell a church who it must hire as a minister. It took the Supreme Court to rule that a Muslim in a state prion had the right to grow a beard as his religion required. It took the Court to decide that a student organization at a public university was not free to limit their members to those who shared their belief system if that resulted in discrimination on the basis of sexual orientation. It took the Court to decide that government could refuse scholarship funds to college students seeking to study for a religious ministry.


There are dozens of SCOTUS cases defining what is "establishment" and what is "free exercise".  And the Court will be forced to decide on how same sex couples fit into the 

1st Amendment religion guarantees of the Constitution..

 The Constitution says what the Supreme Court says it says.


Kyle_Wingfield
Kyle_Wingfield moderator

@Caius "Well in constitutional law nothing is cut and dried.  That is why there is a long list of 1st Amendment religion cases that the Court has decided. "

Exactly. And it's why it is appropriate for legislators to specify what is protected -- and, by their silence, what may not be -- before the courts take up a case. In this instance, the fact that the protections are limited to religious non-profits speaks volumes about the lack of protection a for-profit business may enjoy.

Too bad the knee-jerk-reaction crowd doesn't want to pause to consider that.

DebbieDoRight
DebbieDoRight

@Caius - "there is a long list of 1st Amendment religion cases that the Court has decided. "

True and that is as it should be.  However the majority of the cases before the supreme court challenging 1stAm law are mostly superfluous and not precedent setting.  The SC hardly ever takes up those cases. They're sent back to the lower courts to adjudicate.  The SC's are only interested in cases that will set precedence. Example: Brown v. Board of Education.

Caius
Caius

@DebbieDoRight @Caius Every case sited above was a precedent setting case that established guidelines for all lower courts.


DebbieDoRight
DebbieDoRight

Kyle: "What we needed was collaboration to produce a law both sides could live with. It appears, however, that too many people are uninterested in the “give” such an exercise would take. "

We don't need to collaborate on laws that are already a part of the Bill of Rights! No one's religious liberty is being infringed because "gay people" are  now recognized as  American Citizens.  Just like no liberties were infringed when black people were also recognized as American Citizens.  

Kyle: "They were inevitable the moment last summer the U.S. Supreme Court declared same-sex marriage legal,opening up a huge tract of unmapped legal ground."

SIDE:  I will never understand how US Citizens, some who have given their blood, limbs and lives for the United States, should've EVER been denied the basic rights of citizeship because of their sexual preferences.  CHILD MOLESTERS & Murderers are citizens with rights to marry whomever (of legal age), they wanted to marry.  But Gay people were somehow less than them .  How is that possible?


Kyle_Wingfield
Kyle_Wingfield moderator

@DebbieDoRight "We don't need to collaborate on laws that are already a part of the Bill of Rights!"

Are you saying the First  Amendment covers the alleged discrimination in this bill?

Kyle_Wingfield
Kyle_Wingfield moderator

@Eye wonder The *alleged* discrimination. In other words, does the First Amendment allow everything this bill allows (which I say isn't discrimination, while you and others say it is)? 

DebbieDoRight
DebbieDoRight

@Kyle_Wingfield @DebbieDoRight - I'm saying the republican legislature in Georgia is beating a dead horse with this one.  1stAm. specifically states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

That seems pretty cut and dried to me.

Kyle_Wingfield
Kyle_Wingfield moderator

@DebbieDoRight Again, do you think the provisions in this bill are already covered by the First Amendment? Assuming you do, why then would you oppose the bill if it gives some people a measure of assurance?

Kyle_Wingfield
Kyle_Wingfield moderator

@DebbieDoRight This has nothing to do with the Ten Commandments ... except, perhaps, the fact it says the protections don't extend to public employees. You saw that part when you read the bill, right?

xxxzzz
xxxzzz

@DebbieDoRight Gay people always had the right to marry members of the opposite sex.  And some did.

DebbieDoRight
DebbieDoRight

@Kyle_Wingfield @DebbieDoRight - It has everything to do with RELIGIOUS LIBERTY. Either everyone, no matter their religion, gets to use this bill or no one does.  No more 3 card monty games.

Kyle_Wingfield
Kyle_Wingfield moderator

@DebbieDoRight "Either everyone, no matter their religion, gets to use this bill or no one does. "

The bill doesn't specify a religion. In fact, it goes out of its way not to do so.

DebbieDoRight
DebbieDoRight

@Kyle_Wingfield @DebbieDoRight I don't believe this bill is necessary and YES I believe religious freedoms are already covered by the 1stAm. 

I oppose the stupidity of the bill and I also oppose the language. Its a cute end around to try and hide prejudicial preferences.  Are these same laws going to be applied evenly?  I think not.  Why? Well, when we can see the Koran posted alongside the Ten Commandments at your local City Hall THEN I'll believe this isn't a con game.

RoadScholar
RoadScholar

Let the legislators voting for this unneeded law add a clause that they will pay for all court costs and penalties when this is found to be unconstitutional!

Why would anyone want to be married in a place they are not wanted? makes great memories I guess!

Why do people want their religion to be on par with the religious Taliban ?

Hedley_Lammar
Hedley_Lammar

http://www.foxnews.com/politics/2016/03/20/nfl-says-georgia-religious-exemptions-bill-might-cost-atlanta-super-bowl-bid.html


The NFL came out against a proposed religious exemptions bill in Georgia Friday, saying the deal could have an effect on the Super Bowl selection process for 2019 and 2020.


Atlanta is one of the finalists for the next two league title games to be awarded, along with New Orleans, Miami and Tampa. The city is considered a clear favorite because of its new retractable-roof stadium that is set to open next year. However, the religious exemptions bill could change all of that.


Game. Set. Match

Eye wonder
Eye wonder

@Kyle_Wingfield @Hedley_Lammar

Both just model the Federal act, as far as I can tell. Neither are intended to give religious zealots the right to treat people whose lifestyles they disagree with like crap.

Kyle_Wingfield
Kyle_Wingfield moderator

@Eye wonder "Both just model the Federal act, as far as I can tell."

As does HB 757, except to the extent it specifies that federal and state non-discrimination laws represent compelling governmental interests.

But I'm sure you have read the entire bill, word for word, not just the press releases, and already knew that. Right?

DebbieDoRight
DebbieDoRight

@Kyle_Wingfield @Hedley_Lammar - "Louisiana and Florida already have on their books the law we are talking about here."

To paraphrase my mother........."If Louisiana and Florida jumped off a cliff....."

DebbieDoRight
DebbieDoRight

@Kyle_Wingfield @DebbieDoRight - The Georgia Congress is being hypocritical.  If they can honestly state ONE INCIDENCE in georgia where someone's "religious liberty" was being infringed upon by a gay citizen, then we'll talk. Until then, I feel this is just a colossal waste of time and money. Lots and lots of money that could've been spent on Georgia's poor or on rural hospitals instead of court costs defending a bill that will be defeated.

xxxzzz
xxxzzz

@DebbieDoRight @Kyle_Wingfield 20 years ago nobody would have believed it if you told them the Supreme Court would rule gay marriage a constitutionally protected right.  Courts are legislating more and more.

ugadawg89
ugadawg89

50-15A-2.


184 (a) Government shall not substantially burden a person's exercise of religion even if the


185 burden results from a law, rule, regulation, ordinance, or resolution of general applicability,


186 except as provided in subsection (b) of this Code section


@Kyle_Wingfield @Eye wonder  So does the word "person" refer to a religious non-profit organization? Not sniping but asking a serious question.