Georgia’s Religious Freedom Bill: A Legal Primer for Progressives
The bill–which would seek to change the court standard for cases involving claims for religious freedom–is likely to spark controversy, uproar, and impassioned lobbying both for and against the legislation.
Last year, LGBTQI advocates led the charge against a similar bill introduced by State Sen Josh McKoon (R-Columbus), calling the bill a license to discriminate.
However, HB 29 does not say anything about discrimination or homosexuality, and its impact, if enacted, could be a mixed bag, of tricks and treats, so to speak. The bill is introduced against a lengthy and complex legal backdrop as old as the Georgia and U.S. Constitutions themselves.
Given Georgia’s sad history of discrimination, racism, and homophobia, there is real concern that HB 29, if enacted, could be used as a purported justification for discrimination in such things as employment. However, it is not immediately clear how Georgia courts would rule on such a dispute.
But there are also progressive positions that could just as easily be bolstered by HB 29. For example, Wiccans could conceivably refuse to pay Georgia taxes that further the degradation of Mother Earth. Similarly, Rastafarians could conceivably challenge criminal penalties under Georgia law in connection with the consumption of the cannabis plant (marijuana).
It is not immediately clear how Georgia courts would rule on any of these issues, but the government would have to show why there’s a compelling state interest–not just any old interest, but a compelling one–in preventing workplace discrimination, in forcing the payment of taxes, or even in prohibiting the consumption of cannabis, respectively, if Georgians’ religious freedoms are to be curtailed.
CHANGING THE LEGAL STANDARD TO “COMPELLING INTEREST”
HB 29 would change the Georgia code, O.C.G.A. 50-15A-2, to alter the standard by which a state or local law could override an individual’s religious freedom, to the “compelling interest test.”
The Georgia Constitution already protects religious freedom in two provisions in Article I, Section 1, although these freedoms are limited.
Paragraph III. Freedom of conscience. Each person has the natural and inalienable right to worship God, each according to the dictates of that person’s own conscience; and no human authority should, in any case, control or interfere with such right of conscience.
Paragraph IV. Religious opinions; freedom of religion. No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.
But religious freedom has its limits.
“To construe this constitutional right as being unlimited, and to hold as privileged any act if based upon religious belief, would be to make the professed doctrine of religious faith superior to the law of the land, and in effect would permit every citizen to become a law unto himself,” the Supreme Court of Georgia wrote in Jones v. City of Moultrie.
“A person’s right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others,” the Court wrote.
Currently, Georgia courts are quite deferential to state and local governments when they pass a law of general applicability–meaning when the law applies to everybody equally, and is not targeted to discriminate against a particular religion–when such a law conflicts with someone’s religious freedom.
For example, in 1943, the Supreme Court of Georgia upheld a law by the City of Moultrie, in southwest Georgia, that prohibited the sale of literature on public streets during certain hours on Saturdays. The Court ruled that cities have the “police power” to regulate public streets, even if doing so interferes with the distribution of religious literature by Jehovah’s Witnesses or others.
Similarly, in 1951, the Court of Appeals of Georgia upheld a law by the City of Gainesville, prohibiting the use of loudspeakers on public streets, ruling it did not impermissibly interfere with freedom of religion.
The new standard proposed by HB 29 would be: “Government may substantially burden a person’s exercise of religion ONLY IF government demonstrates that the application of such burden to a person is in furtherance of a COMPELLING governmental interest and the least restrictive means of furthering that compelling governmental interest.” (emphasis added)
DEBATE HAS ALREADY BEGUN
Local and national groups are already beginning to stake out positions for and against HB 29 in Georgia.
Better Georgia, a progressive advocacy group, has launched a petition opposing the bill, citing the recent scandal involving Atlanta Fire Chief Kevin Cochran:
“If your boss wrote a religious book filled with inflammatory and discriminatory language that even went as far as blaming women for the fall of creation and then handed out copies to employees at work, would that be a problem? Of course it would. That’s exactly what Atlanta Fire Chief Kelvin Cochran did, and it’s one of the reasons he was suspended,” Better Georgia wrote.
Cochran–who hails from Shreveport, Louisiana–wrote in his book about his opposition to homosexuality, and how his top priority as fire chief for Atlanta is to “cultivate its culture for the glory of God.”
“Now, Sen. Josh McKoon, Ralph Reed, and others who support ‘religious freedom’ legislation want to make sure that bosses like Cochran can force their personal beliefs on their employees and customers without consequence,” Better Georgia wrote.
Meanwhile, Jane Robbins, a fellow at American Principles in Action, released a statement in support of HB 29.
“America was founded on the freedom of religion. But in recent years, people of faith have seen increasing threats to their right to live out their faith as they feel called—in schools, in businesses, and even in health care decisions. It’s time for Georgia to join the nineteen other states—and the federal government—that have enacted statutory protections against the erosion of our First Amendment rights,” Robbins said.
RFRA AND THE FEDERAL BACKDROP
Religious freedom bills are popping up in state legislatures all across the country, partially in response to two rulings by the Supreme Court of the U.S.
In Employment Division, Department of Human Resources of Oregon vs. Smith, the Supreme Court of the U.S. ruled in 1990 that Oregon could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, a hallucinogenic drug, even though the use of the drug was part of a Native American religious ritual.
The Court ruled that as long as the law denying unemployment benefits was one of general applicability, meaning it applies to all Oregonians, it was constitutional, even though it interfered with the religious freedom of certain people.
Such reasoning appears to be similar to that currently used by Georgia courts.
In response, in 1993, U.S. Congress passed the Religious Freedom Restoration Act (RFRA), which sought to change the legal standard to the “compelling interest test” for federal courts.
However, in Boerne v. Flores, in 1997, the Supreme Court of the U.S. struck down RFRA, on account that a law passed by Congress cannot override the First Amendment of the Constitution of the U.S., as already interpreted by the Court.
On that note, it is not clear that the Georgia Legislature even has the authority change the legal standard in Georgia, without a Constitutional Amendment, given that such a standard, too, is based on the courts’ interpretation of a Constitution–the Georgia Constitution. But that notwithstanding…
APN has reached out to several lawmakers and advocates for their opinions of HB 29. We will provide more news and analysis at the Session progresses.