The fight to retain meaningful separation between church and state took some surprising twists in Georgia this year. Our General Assembly joined a number of states in attempting to craft a reaction to the Supreme Court’s decision early last summer in Obergefell v. Hodges, effectively legalizing same-sex marriage in all states. In Georgia, three different bills were put forth. Although fortunately Governor Deal’s ultimately issued a welcome veto, there is no sign that the lawmakers who supported this legislation will suffer for pushing this agenda, and we expect to see a similar agenda pushed in the next legislative session.
Three different bills this session highlight secular concern. Kevin Tanner of Dawsonville, along with five of his Republican colleagues, introduced HB 757, originally dubbed the “Pastor Protection Act” (PPA). Although the main action would revolve around HB 757, before it was ultimately passed, 757 would include language from two other bills, including both SB 284 and SB 129. Senator Greg Kirk of Americus introduced SB 284, the First Amendment Defense Act (FADA) with the support of no fewer than thirty-one of his Senate colleagues. Finally, Senator Joshua McKoon, a Republican from Columbus and Chair of the Senate Judiciary Committee, introduced SB 129, a Religious Freedom and Restoration Act or “RFRA” (usually pronounced “RIF-ra”), ultimately gaining the co-sponsorship of twenty-seven fellow Republican senators. Although none of these bills would pass in its original form, it is important to see how each functioned to understand the ultimate passage of 757.
The PPA was originally a fairly simple piece of legislation designed, in theory, to protect pastors from any requirement to officiate over same-sex marriages. I say in theory because religious officials are under no legal obligation to officiate over weddings. No law requires religious officials to marry couples. At most, they are permitted to officiate over weddings by virtue of their legal recognition as religious officials. In effect, the original bill created a remedy for a problem that didn’t, and doesn’t, exist.
By contrast, the FADA was a nasty piece of legislation. Although it mirrored standard language of non-discrimination, it had both an unduly broad definition of “discriminatory action” and a narrow construction of first amendment religious protection. For example, “discriminatory action” included “any action” to “[d]eny, withhold, reduce, exclude, terminate, condition, or otherwise make unavailable access to any speech forum (whether a traditional, limited, or nonpublic forum) administered by a government, including access to educational facilities available for use by student or community organizations.” Worse, the first amendment right being protected was severely restricted. The bill provided new legal protections and defenses to anyone who “believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman or that sexual relations are properly reserved to such a marriage.” Unlike the PPA, which protected against a problem that didn’t exist, the FADA represented an attempt to create rights that nobody currently has.
The last piece of this puzzle is the Religious Freedom Restoration Act (RFRA). The federal RFRA was originally signed into law by Bill Clinton in 1993 with almost unanimous legislative support. It was itself a reactionary move. In 1990, Justice Scalia had authored a decision in Employment Division v. Smith finding that generally applicable laws (i.e. laws that applied to everyone, regardless of factors like age, race, or religion) would be valid even if they incidentally burdened religious practices. In that case, the state of Oregon refused to give unemployment benefits to Native Americans who had been terminated from their jobs after testing positive from mescaline, the psychoactive substance in peyote. Claiming that the denial functioned as an obstacle to the free exercise of their religion—in this case, the ritual smoking of peyote—they brought suit and ultimately lost. RFRA directed the court to apply a higher level of scrutiny to any law challenged as a burden on religious exercise. In a subsequent decision (City of Boerne v. Flores), the Supreme Court held that RFRA could not be applied against state laws, and in effect signaled to states that if they desired RFRA-style protections, they would need to pass state versions of RFRA.
RFRA was brought back onto the national stage two years ago with the Supreme Court’s decision in Burwell v. Hobby Lobby. That decision used RFRA to invalidate the Affordable Care Act (ACA) mandate that employers purchase insurance covering contraception. Hobby Lobby claimed that this law burdened the closely-held corporation’s sincere religious belief that contraception was immoral (even though the company had purchased insurance that covered contraception prior to the passage of the ACA). By ruling in favor of Hobby Lobby in a 5-4 decision, the Supreme Court recognized corporations as having religious beliefs. This decision was rightly criticized as a perversion of RFRA’s original goal of protecting religious minorities from accidental government intrusion into religious activity.
Although it started out as the PPA, by the time HB 757 was ultimately vetoed, it had been dramatically amended to include language from both RFRA and FADA, as well as other independent amendments which expanded the impact of the bill beyond anything included in any of the three original bills. The amended bill invalidated local ordinances requiring businesses to open on the weekend on explicitly religious grounds; it expanded the rights of faith-based services—even ones receiving substantial state subsidies—to refuse services to people on religious grounds and to discriminate on the basis of religion when hiring employees. It attempted to exempt public officials from any legal duties that conflicted with their religious beliefs. Perhaps most objectionably, it essentially served as a license for many businesses to discriminate on the basis of expressed religious beliefs in a way calculated to negatively impact the LGBT community.
We can and should be relieved that Governor Deal saw fit to veto this bill, but it would be foolish not to expect more of the same over the next legislative session. Although the final Senate vote was on party lines, with only one Republican voting against it, that still meant that this bill was passed overwhelmingly by a final vote of 104 to 65 in the House, and 37 to 18 in the Senate.
Although these bills were the most visible during the last session, several additional bills deserve honorable mention. HB 555, introduced by Representative Joyce Chandler of Grayson and supported by five Republican colleagues, expanded the reporting requirements of judicial clerks. Clerks will now be required to report the number of orders issued authorizing abortions on minors without parental notification. Although the bill mandates destruction of these records after six months and specifically holds the reports confidential and exempt from disclosure under Georgia’s Open Records Act, we should be on the lookout for potential use of these records in future judicial elections.
Although it was not strictly a topic of discussion this year, one standing practice of both houses of the Georgia legislature should give us pause. At the beginning of each legislative day, usually about ten minutes into the day’s events, each chamber introduces a daily pastor. The ceremony that follows deserves attention, if only because it’s the one—really the only—part of the day when the chamber doors are locked, and both the people on the floor and those in the viewing gallery are essentially required to participate. People in the gallery, who are not ordinarily allowed even to applaud with the lawmakers below, are required to close their laptops, cease their other business, and quietly listen while the pastor de jour gives an entire sermon, followed by a short prayer. These aren’t neutral sermons, but are as full of specific praises of God and Jesus. They take anywhere from ten to thirty minutes of the legislature’s already cramped day. Unfortunately, due to the Supreme Court’s decision in Town of Greece v. Galloway, prayers are permitted before government meetings. However, the government is required to open up this forum for other types of invocations. In response to this decision, Secular Coalition’s member organization, American Humanist Association, has launched a program assisting humanists who wish to provide humanist invocations at government meetings. If you’d like to challenge Georgia’s status quo of daily sectarian prayer before government meetings, apply to become a humanist invocator here.