ANALYSIS: Religious Freedom Wasn’t about Discrimination; It is Now
(APN) ATLANTA — When HB 29 and SB 129 were introduced in the Georgia House and Senate this year, respectively, advocates of LGBTQI equality immediately waxed hyperbolic, calling it the Hate the Gays bill.
Atlanta Progressive News ran a lengthy analysis in early January 2015 explaining that the bill was more broadly encompassing and more substantively complex than its opponents, and most, if not all, of the corporate media had been in the practice of depicting.
However, events over the last few weeks in the State Senate have created a legislative history that could have a bearing on any future religious freedom litigation, should SB 129 pass the House.
Meanwhile, State Rep. Sam Teasley (R-Marietta) has now agreed to get behind SB 129 instead of pushing HB 29 through, raising the stakes on the SB 129 House vote even more.
These events have a created a new argument for the State Attorney General’s office to use in the future: the Legislature did intend discrimination, as the legislative history shows that they considered, but rejected, language defining the eradication of discrimination as a compelling government interest.
As previously explained by APN, religious freedom legislation is all about purporting to provide courts with a new standard to interpret religious freedom [“purporting” because courts have the final word].
Currently, laws can “burden” religious freedom when governments have a legitimate interest and the laws at hand do not target a specific religion and instead are generally applicable to all religions.
SB 129 would change that standard to a “compelling government interest.”
Opponents of the bill have been reasonably concerned that this could open up the door for courts to say that eradicating discrimination is not a compelling government interest, and thus, that Georgians’ rights to practice their religion outweighs the burdens of eradicating discrimination.
The proposed law was silent on the issue. And with the exception of language added to the “legislative findings” section of the bill–acknowledging that courts have traditionally found that eradicating discrimination is a compelling government interest–the law is still silent on the issue.
State Sen. Bill Cowsert (R-Athens) attempted to introduce an amendment in Committee that would have explicitly defined compelling government interest to include eradicating discrimination.
But Chairman Josh McKoon (R-Columbus) ruled the amendment out of order because the Committee did not receive 24 hour advance notice. McKoon’s concern with timely notice can be seen as pretextual, however, because he brought up an amended version of the bill himself two weeks later without 24 hour advance notice.
Apparently, McKoon’s purpose was to prevent the amendment from passing.
The amended version did include the legislative findings language, but the significance of this language could be argued both ways. Equality advocates can argue that the language is persuasive evidence of the Legislature’s intent.
But the State can argue, first, that it is only evidence of the Legislature’s understanding of previous court rulings. The findings do not state, “WHEREAS, we find that eradicating discrimination is a compelling government interest.” Only that courts “have consistently held that government has a fundamental, overriding interest in eradicating discrimination.”
The Legislature has only acknowledged the courts’ existing discourse structure; not said that they agree with it.
Moreover, the State will be able to argue that the Legislature evidently intended to allow discrimination, when the full Senate voted to engross the bill, meaning no further amendments can be made, despite knowing that the engrossed version does not contain the defining language originally proposed by Sen. Cowsert.
“If you are against discrimination, you would have allowed this amendment to go forward, this amendment to be heard, this amendment to be voted on,” Sen. Vincent Fort (D-Atlanta) said on the Senate floor.
Now, the House has a chance to clarify the issue, by voting SB 129 down.
WHAT ABOUT OTHER RIGHTS AND OTHER FREEDOMS?
A final note on SB 129 in the broader context of all the rights and freedoms that Georgians enjoy.
Freedom is not absolute in a democracy, but is subject to government regulation in the public interest, consistent with the Constitutions, state and federal.
Why create a higher standard for governments to burden religious freedom, but not other freedoms: in particular, the right to vote?
Republicans in the Legislature, during the last ten-plus years of their majority, have had a devastatingly poor record on voting rights–eliminating valid forms of voter ID; reducing early voting; switching to unverifiable E-voting; blocking independent and minor party candidates–and yet they claim to be concerned with fundamental freedoms and rights.
If religious freedom is truly under attack, then voting rights are under siege. Republicans can’t just pick and choose. If they are so concerned with fundamental freedoms and rights, they should stop attacking the democratic process and introduce legislation setting a compelling interest standard for the right to vote.