Friday, March 20, 2015

Religious Freedom: Exceptions Needed

Compromise is Not a Four Letter Word

UPDATE - The bill was defeated on Sine Die.

The Georgia Religious Liberty Restoration Act (“RFRA”) now sits motionless in the General Assembly’s House Judiciary Committee. Neither dead nor alive. Tabled by its proponents after an amendment they considered a poison pill was added to the bill.

Opponents of the bill (SB 129) are ecstatic. Supporters are seething and contemplating revenge. One local talk show host is even equating the Republican supporters of the amendment in question "Judas."  The issue is clearly not over, and whether it is confronted again this year before the end of the 2015 session or next January when the General Assembly returns, one thing is certain – we will deal with  this issue again.

Now is the time for cooler heads. Now is the time for people of good will on both sides to call for reason and compromise. Protecting religious freedom – a cornerstone of our republic — is critical, but to fail to also defend the civil rights of our people in a pluralistic secular society is unacceptable.

Let’s first take a look at the background behind RFRA laws around the country. RFRA was originally enacted by the U.S. Congress in 1993 to address a U.S. Supreme Court decision that had weakened the standard for court review of cases involving claims of governmental intrusion into religious freedom. The federal RFRA law merely restored what is called a “strict scrutiny” standard requiring that any infringement of religion by the federal government occur only when there is “a compelling governmental interest,” and the government utilizes the “least restrictive means of achieving that compelling governmental interest.” This is the same strict standard required in cases involving freedom of speech, freedom of assembly, and freedom of the press.

After the U.S. Supreme Court subsequently decided in 1997 that states needed to enact their own RFRA laws to impose this same strict scrutiny standard on state and local governments, twenty states passed their own RFRA statutes and another dozen had their courts impose the heightened strict standard by case law.

So, what then is the problem? Opponents of the Georgia RFRA proposal fear that individuals will use a claim of religious freedom to justify denying people employment, housing, or goods and services based on a person’s race, religion, sex, national origin, or sexual orientation. This kind of discrimination clearly should not be allowed to happen. Not in the 21st Century. Not in our state.

How can we address this balance? Texas offers us a good model. In the Texas RFRA statute, religious institutions and faith based organizations are specifically protected from government intrusion in the areas of governance, employment, education, faith based teaching, volunteering, etc., but federal, state, and local civil rights laws and ordinances protecting individuals against discrimination in secular commercial and business activities are specifically recognized as a compelling government interest.

We can do the same here in Georgia.  We can strengthen individual’s  religious freedom protection as has been done by the federal government and 32 other states.  We can shield religious institutions and faith based non-profits from undue government intrusion.  We can do both of these things and still preserve everyone’s civil liberties in a secular world.   But to do these things will require us to listen and then act in the best interest of all Georgians.

Now, with these goals in mind let us reason together, compromise, and find a solution.

"Come now, let us reason together"

In reading the printed words in the proposed Georgia Religious Freedom Restoration Act (SB 129), it is difficult to see on its face how it should alarm anyone. It simply says that religious freedom – a freedom enshrined in the First Amendment to our U.S. Constitution and Article I, Paragraph IV of the Georgia Constitution – shall require the Georgia courts to insure that any infringement of religion by the government takes place only when there is “a compelling governmental interest,” and the government utilizes the “least restrictive means of achieving that compelling governmental interest.”

Similar language was passed in the early 1990’s by the U.S. Congress to protect us against over-reaching federal action, and 19 States – red and blue – have subsequently passed similar laws as well. 

So what is the harm?  Well, let's take a hard look below the surface because as a legislator for ten years, I came to understand the importance of recognizing what is the motivation behind a bill, and as a lawyer, I am always concerned with unintended consequences.

There are many individuals and groups that I greatly admire supporting this legislation. Representative Sam Teasley and Senator Josh McKoon, sponsors of the House and Senate versions of the bill,  are both friends and former colleagues, and I believe the sincerity of their positive motives for bringing this legislation. The Faith and Freedom Coalition is also a good organization which has been a strong positive advocate for people of faith.

However, we cannot ignore others who have marched to our Capitol in support of this legislation and have clearly indicated their hatred – yes, hatred -- for gays and lesbians and others in the LGBT community, and their intention to use this legislation to try to discriminate against these fellow citizens. This cannot be allowed to happen. Not in the 21st Century. Not in our state. Not in my Lord and Savior’s name.

Furthermore, as a lawyer who began his career as a Special Assistant Attorney General handling child abuse cases and a former member of the Georgia Family Violence Commission, I am concerned that this bill will be wrongfully twisted by those perpetrating child abuse and family violence as a defense in court to justify their actions.

So, what can be done? To borrow from Isaiah 1:18:  "Come now, let us reason together."

SB 129 already  rightly recognizes reasonable exceptions to guard against misuse of this proposed law by protecting employers and excluding convicted prisoners in our penal institutions. We should also add two additional critically needed exceptions to guard against wrongful discrimination and to protect our fellow Georgians from violence.  

The first additional exception should expressly bar the application of the law against any present of future civil rights law or local ordinance protecting citizens against discrimination. Texas, for instance, already recognizes this exception in its Religious Freedom and Restoration Act. The second exception should bar the use of the statute as a defense in cases involving allegations of child abuse or family violence.

These two additional exceptions will allow the advocates of the proposed Georgia Religious Freedom Restoration Act to afford Georgia citizens the same protections contained in federal law and guaranteed to citizens in 19 other states, while at the same time insuring that the law will not be manipulated and misused to try and discriminate or provide a shield to those who would do violence against vulnerable members of our society.

Edward Lindsey

—> Edward Lindsey served for a decade in the Georgia House and for three terms as the Republican Georgia House Majority Whip.  He now practices law in Atlanta, Georgia.

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