Of Pastors and Protection

In yesterday’s daily Senate devotional, the chaplain of the day seized on the opportunity to condemn LGBT persons before members of the General Assembly. In an all too often occurrence under the Gold Dome, gay and lesbian Georgians were called “an abomination” who contribute to the nation’s moral decline. In the Senate— the people’s chamber— the rostrum was used to tell an entire class of people that they do not belong in this state, that they are less than. A sad display made more shocking with the knowledge that school children are often in the chamber for morning devotionals and balcony onlookers are locked in until the chaplain concludes.

In moments like these we need to ask what is to become of Georgia in the next few years. Do we want to break from our past of deep resistance to the progression of civil rights? Do we want to be a magnet for commerce and culture, welcoming all and protecting all? Or will we let the ghosts of our past haunt us, digging our heels while the rest of the nation looks at Georgia with disdain?

Now, comes a series of bills that attempt to tackle the balancing of LGBT civil rights and religious objectors to same-sex marriage that will test our commitment as a state to equal citizenship. One of those bills, the Pastor Protection Act, consists of three sections, two of which are nominally controversial. The first section reaffirms the constitutional rights of clergy to perform only those marriages consistent with their faith.

Now despite this being a response to the legalization of same-sex marriage by the Supreme Court, same-sex couples aren’t clamoring to be married by men and women of the cloth who oppose their unions. That fact notwithstanding, it is important to note that the Supreme Court’s decision does not disturb the pre-existing First Amendment right of clergy to perform only marriages consistent with their faith. There is nothing particularly novel about this part of the bill. Indeed, between 2009 and 2013, a handful of states enacted same-sex marriage laws. Every state that advanced marriage equality by legislation reaffirmed the principle of clerical autonomy with language similar to that proposed here.

The second part of the bill relates to mandates business hours on weekends and does not implicate civil rights concerns.

The third section, while perhaps well intentioned, is worded so broadly that it would invite serious acts of discrimination and open a hole into Georgia’s sole civil rights law the size of a Mack truck. The third section reads:

“No religious organization shall be required to rent, lease, or otherwise grant permission for property to be used by another person for purposes which are objectionable to such religious organization.”

This language would rollback the protections afforded in the Georgia Fair Housing Act, which prohibits discrimination in housing on the basis of race, sex, color, familial status, national origin, disability, and religion. Currently, religious organizations are permitted to give preference to their own religious adherents, but must still abide by principles of nondiscrimination when engaged in commercial property transactions. Here is the language from the Georgia Fair Housing Act, which mirrors federal fair housing law:

Nothing in this article shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental, or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion or from giving preference to such persons unless membership in such religion is restricted on account of race, color, sex, handicap, familial status, or national origin. Ga. Code Ann. § 8-3-205.

In other words, the Pastor Protection Act would allow groups to discriminate in housing in a manner they’ve never been allowed to since the passage of federal and state fair housing law against a number of protected groups— against women, nontraditional families, and disfavored religious groups— not to mention LGBT persons if local governments have banned housing discrimination for LGBT people. Simply put: section 3 of the Pastor Protection Act opens the door to a host of invidious acts in the buying, renting, and selling of housing otherwise already prohibited under state law. Religious organizations have never had such broad discretion to discriminate in housing in the modern civil rights era.

More than housing, section 3 would give license to discriminate when religious groups offer spaces as public accommodations or take taxpayer-funded grants conditioned on equal public access. For example, if a religious group rents out space for secular activities unrelated to marriage or religious sacraments like birthday parties, that group could reject hosting a birthday party because a person is openly gay. This is not pure speculation. Indeed, one Georgia church has already banned renting space for birthday parties if they have a religious objection.

Another problematic situation could arise if a religious group accepts public funds that would ordinarily come with a condition to open themselves to the public. Again, this issue is not speculative. In New Jersey, a religious organization refused to rent a beachside pavilion to a same-sex couple despite taking public funds from the state’s rural preservation program which required that property was “open to all on an equal basis.” This bill would disallow localities and agencies from requiring those who take public money to serve the public.

Other states have accomplished what I suspect this bill was intended to do—to allow nonprofit religious organizations to decline to facilitate marriages inconsistent with their faith without running afoul of public accommodations laws or risking other punitive action. Every state that enacted same-sex marriage (but Delaware) crafted nuanced exemptions to achieve that end. Those carefully drawn exemptions were supported by a broad segment of liberals and conservatives. Even Texas largely followed the model offered by early same-sex marriage states in its pastor protection law that Governor Abbott signed last year.

The Pastor Protection Act should be a piece of legislation that garners widespread, bipartisan support. While the intentions behind it were almost certainly benign, the drafting process resulted in a piece of legislation that takes an axe to civil rights principles rather than an artful scalpel to finely tune and balance civil rights and religious objectors.

I hold out hope that this legislation will be revisited and amended to track what I instinctively believe was the authors’ likely intent. Even if that occurs, legislators should not let this opportunity pass by, but seize it to achieve something greater. This legislation has all the beginnings of a comprehensive civil rights bill, except it only favors religious objectors without providing any protections to LGBT Georgians. It is time that the state of Georgia finally joins the rest of the nation and tackles the hard issues of discrimination in employment, housing, and public accommodations.

We cannot afford to continue down the unproductive path of pitting religious conservatives against civil rights liberals. It is time for deliberation. It is time for negotiation. It is time for Georgia to be a welcoming place for all.