ATLANTA — They were victims of bad timing.
That’s what state Rep. Sam Teasley (R-Marietta) and state Sen. Joshua McKoon (R-Columbus) believe happened to their religious liberty bills filed this session.
The bills have been ripped by critics for targeting gay people, a charge the lawmakers deny.
Their bills were caught up in the national controversy over the Arizona bill was vetoed last week.
Major companies such as Delta Air Lines have wrongly denounced the bills, Teasley said he believes, because they haven’t bothered to take the time to understand them.
“I was extremely disappointed in what I would characterize as a premature judgment,” Teasley said of Delta’s Tuesday announcement that the bills, “would allow businesses to refuse service to lesbian, gay, bisexual and transgender individuals.”
Delta said, if passed into law, bills such as the ones in Georgia and Arizona would violate Delta’s core values.
“It strikes me that they were not familiar with the contents of what H.B. 1023 did and were reacting to a national media story and decided that the bill that was in Arizona was the same as the bill in Georgia, and therefore they felt the need to distance themselves on that issue,” Teasley said.
Teasley’s bill has stalled in the House Judiciary Committee, where it is expected to remain.
McKoon’s S.B. 377 passed out of the Senate Judiciary Committee and is held up in the Rules Committee. Were the Rules Committee to allow the bill to go to the Senate floor for a vote on Monday, the bill has a chance to “cross over” to the Georgia House. But Monday is the last day for that to happen.
McKoon said Sen. Judson Hill (R-east Cobb), a member of the Rules Committee, selected the bill for a Senate floor vote, but Rules Chairman Jeff Mullis (R-Chickamauga) had other ideas.
“When the list was set, Sen. Mullis said there’s been a lot of controversy about S.B. 377. (Mullis said) ‘I’m going to take it off the Rules calendar, but we may come back to it. It’s open.’ There is still a chance, and I would say it is not likely, but it is possible that it could be voted on Monday,” McKoon said.
McKoon said he won’t blame any lawmaker if his bill doesn’t come up for a vote.
“What I fault is the hysteria, the misinformation that’s been put out there primarily by people kind of on the left side of the political spectrum to mischaracterize this bill, to suggest that it does things that it does not do, and it’s frankly scared a lot of people, I think it’s scared a lot of people in the business community, and it’s been very effective from a tactical standpoint politically,” McKoon said.
“I am extraordinarily disappointed because I think Georgians deserve the same level of protection of their religious liberty that federal prisoners receive under the law that Congress passed 21 years ago.”
Mike Griffin, lobbyist for the Georgia Baptist Convention, said a conversation is underway among conservative groups about conducting an economic boycott of companies such as Delta and Home Depot for opposing the bills.
Griffin said his group is also pushing for a Senate floor vote on Monday, which he thinks may occur.
“I think there’s a good possibility that might happen because there have been a number of groups that have been involved in doing contacts. I know the Georgia Baptist Convention, we’ve sent out emails to our pastors and churches at 3,600 locations,” Griffin said.
The Religious Freedom Restoration Act
Prior to 1999, if the government did something an individual believes infringed on his or her religious liberty, that person could take the government to court. And in court, the burden was on the government to show a compelling state interest why it was infringing on the citizen’s religious liberty, McKoon explained.
“So for example, if you claimed your faith taught that you should not pay taxes, and you wanted to take that to court, you could,” he said. “I think the government would be able to pretty easily show there was a compelling interest in citizens paying taxes, but the idea was the onus was on the government.”
But in 1990, the U.S. Supreme Court threw out that analysis, saying the government was no longer required to make the initial showing. The high court shifted the burden to the individual to prove that person’s rights were being infringed upon.
Congress countered that decision in 1993 by passing the Religious Freedom Restoration Act signed into law by President Bill Clinton.
“That re-established the old burden system where the government basically is the one that has to explain to the court why is this rule or policy in place. That applied everywhere,” McKoon said.
A series of court challenges followed, and in 1997, a federal court said provisions of the Religious Freedom Restoration Act could not be applied to state and local governments. That 1997 federal court decision is what sparked the movement of passing the act on a state level.
“So 18 states have passed a version of this law including every state that borders Georgia. Eleven other states have adopted the balancing test through decisions by their Supreme Court,” McKoon said.
Argument for why it’s needed
McKoon cited examples of where having a Religious Freedom Restoration Act is useful. A Florida community college class had a project involving “experiencing the feeling of revulsion.”
Students were asked to stomp on a picture of Jesus. When a student objected on religious grounds, the college started disciplinary proceedings — against the student for refusing to participate.
“Attorneys for the student cited the college to Florida’s RFRA and the college dropped the disciplinary proceeding,” McKoon said.
In another incident, a pastor wanted to build an outreach center for low-income people but the county opposed the proposed location. The county used the zoning process to block construction for a year and a half before the church could build the center.
“Had we had a RFRA in place I believe there wouldn’t have been any real challenge,” McKoon said. “They would have said, ‘Well, we can’t really justify what they’re doing because there’s not a compelling state interest to keep this from being built. It’s those kinds of interactions.”
McKoon, an attorney, does not believe passing the act would result in an explosion of litigation.
“I think what you would see is right now where the government just rolls over people. the individual would have the upper hand, and that’s what I’m trying to get us toward,” he said.
McKoon cited a case in Nevada, which does not have a Religious Freedom Restoration Act. In that case, a Catholic priest had a member of his congregation picked up on a suspected immigration violation. When the priest went to the detention facility and asked to meet with his parishioner to pray together, detention administrators refused to allow them to meet.
“In a state with RFRA, they would have had legal grounds to go to court so that the priest would have the opportunity to pray with a member of his flock. I mean, I think that’s a pretty basic religious liberty,” McKoon said.
Arizona and Georgia
Arizona is one of the states that already has a RFRA.
McKoon said the author of the Arizona bill was clear in what he wanted to do. That lawmaker, McKoon said, thought it should be up to the business owner to decide whether to give service — making a wedding cake, for example — to a gay couple.
“That never even entered my mind,” McKoon said. “I was on the phone with a reporter earlier today where I said, I find it kind of laughable because under Georgia law, homosexuals are not a protected class, because any hypothetical situation I’ve been asked about over the last week or so, I always say, ‘Well, you realize I don’t mean to disturb you, but the current Georgia law would allow for whatever that hypothetical situation is. I don’t think it’s going to happen, but it’s allowed under current Georgia law.’”
Race, national origin, gender and religious affiliation are protected classes in Georgia and discriminating for those reasons may subject you to legal liability.
“You can’t say, ‘I’m not going to take a picture of you because you’re Catholic’ or ‘I’m not going to take a picture of you because you’re Muslim,’” McKoon said.
The rights of protected classes also apply to employment.
“Georgia is an ‘at-will’ employment state, and I can fire somebody for wearing a red shirt to work, but I can’t fire them for being black, I can’t fire them for being a woman, I can’t fire them because they’re Catholic,” he said.
The laws governing employment are enforced at the state and federal levels.
But while the government recognizes such categories as race and gender, it does not recognize gay people as a protected class. The example of the wedding photographer or cake maker denying service to a gay couple under McKoon’s bill doesn’t apply because that photographer or baker already has the right to deny service, he said.
Like Georgia, Arizona does not recognize sexual orientation as a protected class. McKoon said what the Arizona bill was trying to do is pass a law so that if one day gay people are a protected class, the religious freedom argument could be used in the example of a wedding photographer.
“So they were basically taking a bill and laying it on top of their existing Religious Freedom Act whereas in Georgia we have no Religious Freedom Act,” McKoon said. “We have very little protection for people in the First Amendment area.”
Follow the money
McKoon believes the “no service to gays” argument is being used against his bill as a fundraising tactic.
“A group that is around a cause needs from time to time a highly publicized issue to fundraise around, and I firmly believe that from the beginning this entire campaign — primarily in Arizona — we’re kind of a victim of bad timing, but this is a tremendous issue to send out these pleading funding letters and appeals online. ‘We’re under attack. We’re under assault. Look what we’re trying to do. Send us $100.’ And I was told by someone that comment had been made down at the Capitol by someone in the minority party that it had been several years since there had been a good quote unquote gay issue, and so here’s an opportunity.”
The Georgia Municipal Association and the Association of County Commissioners of Georgia have also opposed the bills. McKoon said cities and counties have been able to enact rules and policies hostile to religious liberty.
“This bill would flip the burden and require the counties and cities to justify imposing a rule or regulation that infringes on religious liberty. So they don’t want to have to do that,” he said.
Hiding behind God?
State Rep. Stacey Evans (D-Smyrna), an opponent of the bills, believes Teasley’s intent was not to discriminate, but said discrimination would be the unintended consequence of his proposal.
Evans wondered if the bills would open the door to such instances as a flower shop owner declining to sell to a heterosexual couple who had previously been divorced or the owner of a pharmacy declining to sell birth control to a single woman.
“The line could just get out of hand really fast,” Evans said.
Melissa Pike, the chairwoman of the Cobb Democratic Party, is also an opponent.
“If you’ve gone into a profession that subjects you to something that violates your religious principles, maybe you should reconsider your profession,” Pike said.
Pike said people love using religion to reinforce their position on social issues.
“Before it was a religious issue that people couldn’t marry interracially,” she said. “Now it’s an issue for religion about this, that, and the other. At some people need to ‘fess up to the fact that they’re just bigots and stop hiding behind God and the Bible and Christ. My god is a forgiving god. My Christ taught tolerance. My pope is teaching tolerance. If my pope who is a direct link to God doesn’t feel like he’s in a position to judge, I don’t know where Sam Teasley is.”
Georgia has a serious jobs and education deficit, Pike observed.
“Arizona has already demonstrated that big business really doesn’t like this kind of legislation,” she said. “Do we really need to be doing anything that would cause any business anywhere to reconsider being in Georgia because of this kind of craziness? Absolutely not. We’ve been trying to get a Super Bowl for how long? The Super Bowl is talking about getting out of Arizona for this. Now he’s going to propose it? Really? Really?”