Religious Freedom Debate Expected to Continue in 2016

Georgia lawmakers could consider three bills concerning religious freedom during the legislative session that starts today. In addition to Senate Bill 129, Georgia’s Religious Freedom Restoration Act, versions of a Pastor Protection Act and a First Amendment Defense Act are expected to be introduced during the first week of the session.

2016 marks the third year in a row that lawmakers will consider a RFRA, which defines the standards courts should use when considering claims that a law interferes with the ability of a religious person to practice his or her faith. 2014’s Senate Bill 377, called the Preservation of Religious Freedom Act, failed to pass the Senate after concerns were raised that the bill was too similar to an Arizona measure then under consideration that would have allowed businesses to refuse to provide services to same-sex couples if it was against the owner’s religious beliefs.

Senator Josh McKoon introduced Senate Bill 129 last year, and tried to address the concerns of the business community by using language almost identical to the federal RFRA, which was passed almost unanimously during the Bill Clinton administration. Once again, timing was not on the bill’s side, as a similar measure passed in Indiana last winter brought threats of boycotts and the potential loss of business in the Hoosier state. After The House judiciary Committee adopted an anti-discrimination amendment to the bill, it was tabled by those who supported the unamended version.

While the bill sat tabled in the Judiciary Committee, the Supreme Court issued its decision in Obergefell v. Hodges that permitted same-sex marriage nationwide, and overrode Georgia’s constitutional amendment defining marriage as being between a man and a woman. While the decision met little overt resistance in Georgia, a Kentucky clerk faced jail time after refusing to issue marriage licenses, and more recently Alabama judge Roy Moore ordered probate judges there not to issue marriage licenses to same sex couples. The court’s decision provided the impetus for the two additional bills the legislature will consider.

One of the bills is the Pastor Protection Act. That bill, which was previewed at a legislative retreat over the summer, will be sponsored by Rep. Kevin Tanner, and is expected to have several cosponsors. In a briefing for reporters, Speaker David Ralston predicted that the bill will have broad support, and that it will pass quickly in the House.

The original purpose of the bill was to ensure that members of the clergy, including ministers and pastors, would not be forced to promote activities, such as same-sex marriage, that run contrary to their beliefs. Ralston mentioned that the bill has been extended to cover church properties and other church activities. The bill “reaffirms in a very clear, specific way Georgia’s commitment to honoring the separation between church and state,” said the Speaker.

A third bill, modeled after the proposed federal First Amendment Defense Act, is expected to be introduced early in the session by Senator Greg Kirk. The federal version of the bill would prevent the federal government from discriminating against individuals, along with non-profit and for-profit businesses, that believe that marriage should only between a man and a woman. The federal government could not deny tax exempt status or prevent the accreditation for such an organization. Religious beliefs could not be used as a factor in determining eligibility for federal grants, contracts, or employment. Sen. Kirk’s proposed state version is expected to adhere closely to the federal version.

The fate of the three bills is unsure. While the contents of the Pastor Protection and FADA bills won’t be known until they are dropped later this week, the goal of protecting the freedom of those whose religion defines marriage as being between a man and a woman appears to be shared by both. In his Thursday briefing, Speaker Ralston indicated that while he supports the Pastor Protection Act, it would be up to the legislature to determine if it should be combined with other bills.

Last year, the House Judiciary Committee was unable to find language that would be acceptable to the RFRA bill sponsors, who would like Georgia’s version to be as close as possible to the federal measure, and the business community, which wants to ensure that the bill will not be used to discriminate.

Studies by the Metro Atlanta Chamber and the Atlanta Convention and Visitors Bureau claim that between $1 and 2 billion dollars could be lost should RFRA pass. A new coalition of some of the state’s largest business interests, Georgia Prospers will argue for non discrimination. Meanwhile, several organizations, including the Faith and Freedom Coalition, Citizens Impact, and Georgia Right to Life are sponsoring a Religious Freedom Day on February 10th that will include appearances by traditional marriage supporters the Benham Brothers and Franklin Graham, president and CEO of the Billy Graham Evangelistic Association.

Supporters of the RFRA bill point to other states that have adopted similar legislation, and say that those states have not experienced the parade of horribles that the business community and other opponents fear could happen in Georgia should the bill pass. The bill’s opponents point out that other states with RFRA law also have civil rights law that protects against discrimination, with many of those states having anti discrimination protections for gays and lesbians.

Acknowledging that there were strong feelings on both sides concerning the addition of anti-discrimination language, the Speaker refused to take one side or the other, saying he preferred to defer to the committee process. Still, he pointed out, “We heard all last session this was not about discrimination. And so if it’s not about discrimination, then what’s the problem with saying it’s not about discrimination?” The speaker remains hopeful that a path can be found that will resolve the concerns on both sides of the issue.

Meanwhile, in a pre-session poll released on Sunday by the Atlanta Journal Constitution, 53% of Georgia voters said they support the passage of RFRA, with 40% saying they didn’t support the measure. For Republican voters, support increased to 65%. The Speaker’s office took hundreds, if not thousands of phone calls last year from people urging passage of the RFRA measure. It remains to be seen if similar pressure in an election year, along with a desire to get the whole thing behind them will finally bring the issue to a final resolution.