McKoon: Local Non-Discrimination Laws Shouldn’t Be Invalidated By a State RFRA

Republican State Senator Josh McKoon of Columbus says that local ordinances protecting the rights of gays and lesbians, like the one passed in the city of Atlanta, should be able to withstand a challenge under a proposed Georgia Religious Freedom Restoration Act. In a discussion on social media that was later confirmed with the senator, McKoon was asked if a local law protecting LGBT rights would be a compelling government interest as defined by the state RFRA. The senator responded, “So if say the City of Atlanta or another government entity chose to enact such a law it would meet the compelling state interest standard.”

McKoon’s position is significant within the context of the debate over religious liberty in the Peach State. When McKoon’s Senate Bill 139 was under consideration by the House Judiciary Committee, one of the reasons it was opposed was a fear that once it became law, the RFRA could be used to overturn local ordinances protecting the rights of minorities. This fear was the impetus behind the effort to amend the bill so it would explicitly define such ordinances as a compelling government interest. The amendment, which caused the entire bill to be tabled, read:

“Compelling governmental interest” includes, but is not limited to, protecting the welfare of a child from abuse or neglect as provided by state law and protecting persons against discrimination on any ground prohibited by federal, state, or local law.

The issue came up again in the debate over the Free Exercise Protection Act, which passed the legislature late in the 2016 session, only to be ultimately vetoed by Governor Deal. Section 6 of the bill, which contained the Georgia RFRA language, had a provision that it couldn’t be used to “permit invidious discrimination on any grounds prohibited by federal or state law.” Many of those who wondered whether the Free Exercise Protection Act could be used to undermine local anti-discrimination ordinances pointed to the omission of local laws in that section of the bill as a reason to oppose the measure.

Of course, Senator McKoon’s opinion would not be controlling on a judge trying to decide a free exercise claim seeking to overturn a local anti discrimination ordinance. It could, however, be used as evidence of legislative intent. McKoon claims he has consistently believed that local anti discrimination ordinances have a compelling government interest, but his position has not been reported in the media. The senator also said that his opposition to codifying local anti discrimination ordinances as compelling state interests as part of Georgia’s RFRA was to ensure the state and federal versions of RFRA each offered identical protections and similar language.