Beware of HB757, A Wolf in Sheep’s Clothing

Members of the Georgia Senate are misleading the public in a shameful attempt to impose a full throated anti-LGBT agenda.

On Friday, the Georgia Senate approved HB757. HB757 was once called the Pastor Protection Act, but HB757 is unworthy of the name in its current form. Indeed, after the Senate hijacked HB757 by inserting into it the so-called First Amendment Defense Act, the Pastor Protection Act morphed into an entirely different animal.  What started as a consensus-driven bill to reassure clergy and religious institutions that they did not have to facilitate marriages inconsistent with their faith, is now a divisive bill that smacks of an older South. 

The most reprehensible part of the debate over HB757 is the legislative jiggery pokery employed to shroud the bill’s intended and actual effect. Make no mistake, FADA will allow businesses to discriminate against LGBT people, women, and unconventional families.  FADA guarantees that the speculative, but legitimately feared, parade of horribles that stoked anti-RFRA movements in Georgia, Indiana, and Arizona, will come to pass. Yes, HB757 will make LGBT Georgians second-class citizens in one fell swoop. Yes, HB757 is RFRA on steroids.

The Chick-Fil-A Clause

What exemption does FADA provide? HB757 states, “Government shall not take any adverse action against a person or faith-based organization wholly or partially on the basis that such person or faith-based organization believes, speaks, or acts in accordance with a sincerely held religious belief regarding lawful marriage between two people, including the belief that marriage should only be between a man and a woman or that sexual relations are properly reserved to such a union.”

The current language in HB757 limits the scope of its application to “natural persons” and “faith-based organizations.”  Natural persons, of course, are human beings, as opposed to a fictional legal person, which includes for-profit corporations. Reading this, one might think the Senate wanted to exclude businesses from taking advantage of the exemption to turn away LGBT customers. Not so fast.

Georgia’s FADA definition of “faith-based organizations” has not received the amount of attention it should by legislators or the media. HB757 defines faith-based organizations as “any organization or other legal entity whose governing documents or mission statement expressly acknowledges a religious belief or purpose.” In other words, any business in Georgia– from a small business to a large corporation– can deem themselves a religious organization, provided they have documentation that the business is guided by some religious purpose.

One can only imagine the swift response that will follow if FADA becomes law.  Businesses may suddenly undergo conversions like the Apostle Paul on the Road to Damascus, discovering religious beliefs they never had before and posting signs of who they will not serve.

The “natural person” language is excess verbiage that creates a distinction without any real meaning. Under FADA, any for-profit business can easily opt out of local nondiscrimination requirements with the shelter of state law. When legislators repeat ad nauseam that FADA is only about religious organizations and natural persons, it is a desperate attempt to trick the public into believing this legislation is about religious non-profits, charitable organizations, and living, breathing human beings. Do not be fooled, FADA is designed to be a wolf in sheep’s clothing.

Other Ramifications of FADA

While HB757 exempts from its reach government actors’ failure to perform official duties, the scope of their official duties is open to interpretation. Given this ambiguity, there are legitimate concerns that this bill would isolate same-sex couples, transgender people, unwed mothers, and anyone who has sex outside marriage for mistreatment in the government sphere. For example, HB757 would permit judges to exercise their discretionary power to marry in a discriminatory fashion against same-sex couples with impunity.  It would also embolden clerks to engage in hostile practices— this fear is not an abstract hypothetical.

One clerk in Colorado charged with marriage licensing duties, for example, conspicuously posted religious materials on a wall in her office condemning same-sex relationships. By all accounts, the clerk continued to issue marriage licenses pursuant to her official duties in full view of these intimidating materials. A deputy clerk in Gilmer County, West Virginia, demeaned and harassed a same-sex couple as she processed their application for a marriage license. The deputy clerk justified her actions by saying, “I just told them my opinion. I just felt led to do that. I believe God was standing with me and that’s just my religious belief.” The targets of the clerk’s harassment were humiliated, but the County Clerk excused his deputy’s conduct, telling a reporter that the office fulfilled its official duties.  HB757 could enable conduct of this nature throughout the state and may very well shield public displays of animus by state employees from reprimand.

Beyond hostile treatment by state officials, HB757 would:

1. Undermine local nondiscrimination policies protecting local employees.
2. Require state educational institutions to certify medical professionals who fail to comply with professional standards of conduct, which could harm LGBT or unmarried persons seeking their services in the public and private sectors.
3. Disallow state boards from taking appropriate action to regulate harmful faux medical practices, including therapies– universally condemned by every professional medical association– designed to “alter” a person’s sexual orientation.
4. Allow the state to create tax-subsidized monopolies for religious organizations to provide social services and then permit the organizations to choke off access to those services. Most notably this could result in shutting out same-sex couples from the adoption market, contravening the most fundamental family law tenant that the best interests of children should guide child adoption policy.
5. Eviscerate every local non-discrimination law in public accommodations, housing, and employment.

FADA’s Constitutional Infirmity

There is little doubt if FADA becomes law there will be devastating consequences for Georgia’s reputation and business climate. That aside, there is no benefit in enacting clearly unconstitutional laws. HB757, is constitutionally defective because it places a spotlight on LGBT and unmarried Georgians to become victims of discrimination. The bare desire to harm LGBT persons is impermissible under the Equal Protection Clause of the Fourteenth Amendment. By singling out LGBT  in the way HB757 does, the bill excuses and protects discrimination in their everyday lives and across various areas of the law.

HB757 is remarkably similar to a 1992 Colorado measure, which primarily sought to invalidate local anti-discrimination protections for gays, lesbians, and bisexuals. The primary rationale Colorado offered in defense of the law was the respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. The Supreme Court in Romer v. Evans rejected Colorado’s defense and struck down the law because it put in LGB persons into a solitary class with respect to transactions and relations in both the private and governmental spheres by state decree. This bill would have the same effect.

This is only one way in which FADA fails to meet constitutional muster.  There are additional Free Speech Clause and Establishment Clause problems.

FADA is Not a Solution

FADA is not about live-and-let-live as we’re told. Nor, is FADA about free speech, which is robustly protected by the First Amendment already. Rather, FADA is a bill that enables discriminatory conduct.  There is nothing admirable about HB757 after the Senate’s hack job. Far from an accommodation of people of faith, FADA is a blunt and unconstitutional instrument of discrimination that says to LGBT Georgians, “we win and you lose.” It must be stopped.