January 28, 2015
It is reported that down in Georgia, freedom-hating, individual rights opponents are once again ratcheting up their smear campaign against proposed religious liberty legislation which is designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.
A web page titled “Better Georgia” purports to state concerns with H.B. 29, but is filled entirely with omissions and misrepresentations regarding H.B. 29 and how religious liberty law works. Let’s fact-check some of its ridiculous claims.
“This bill would open the door to people who would use their religion to opt out of laws from child welfare to discrimination. It would lead to legal chaos over whose religion is more important in the eyes of our courts and lawmakers. The legislation would give criminals who abusetheir children or spouses a new excuse and make it even more difficult for police officers to put abusers behind bars.”
False. Child abuse is evil, and no one defends it. However, it is quite offensive for Better Georgia’s out-of-state backers to imply that religious believers in Georgia are to blame for such abuse. Moreover, no religious freedom laws, including H.B. 29, permit people to “opt out” of child welfare laws, nor do such laws allow people to abuse their children.
Better Georgia had better check its fact-checkers.
The truth is that under H.B. 29, as with any strict scrutiny application to religious claims, an individual first has to prove they have a sincere religious belief, which has been substantially burdened by the government action in question. Only then can the claim move forward. Even then, if the government can show it has compelling interest in burdening the religious practice, and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.
Thus, H.B. 29 does not automatically permit religious claims to win, but does provide a method for sincere conscientious objectors to be protected, while winnowing out those using religion as a pretext to escape application of general laws. This standard has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal RFRA, without any of the alleged “concerns” and “fears” RFRA opponents point to.
In its 1990 decision Employment Division v. Smith, the Supreme Court significantly restricted free exercise rights, holding that laws infringing on religious exercise did not violate the First Amendment as long as they were neutral and generally applicable. In Smith, an individual sought and was denied unemployment benefits by the State of Oregon because he used peyote—a criminalized, controlled substance—yet he claimed his use of peyote was a religious practice protected by the Free Exercise Clause. The Supreme Court rejected this claim, holding that if a neutral and generally applicable law (such as the uniformly applicable criminal law in this case) happens to infringes on religious practice, such a law does not violate the Free Exercise Clause.
Many rightly saw Smith as a reduction in the protection afforded religious liberty, and the reaction to the Court’s decision was overwhelming. In 1993, a coalition of groups from across the religious and legal spectrum—from the Southern Baptists to the ACLU—came together to urge Congress to pass a law restoring strong protections for free exercise claims. The political support for such a law was also overwhelming, including strong backing from Democratic Congressional leaders such as Senator Ted Kennedy and Representatives Nancy Pelosi, Chuck Schumer, and Jerry Nadler. RFRA was passed unanimously by the U.S. House, 97-3 by the Senate, and signed into law by President Clinton. In over 20 years that the federal RFRA has been in existence, there is been no documented pattern of abuses such as those no claimed by the opponents of H.B. 29. As others have asked, where are these alleged child abusers and discriminators who are supposedly walking away from criminal charges under RFRA? They simply do not exist.
RFRA never was and should not be a partisan issue, as it protects those of all faiths and political persuasions. A review of RFRA and free exercise case law reveals its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects (among others), as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government. Moreover, RFRAs apply in a variety of factual scenarios, such as property disputes, restrictions on caring from the homeless, conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not fact-specific. They are not religion specific. And they are not political-party specific.
Indeed, the text of H.B. 29 itself reveals an open-mindedness and neutrality which is at opposition to the narrow-minded, politically-charged misrepresentations being thrown around on the web by Better Georgia. Before unquestioningly getting on the bandwagon, everyone needs to take a deep breath and look at what actually is going on.
The alleged “incidents” highlighted by these scaremongers at Better Georgia are exactly that—scaremongering. The case of the toddler in Canada who died after severe application of Seventh-day Adventist dietary rules (aside from the issue that this is anything but a “pattern” of behavior) would not be an issue under H.B. 29 or any RFRA—the government has the most compelling of interests in preventing deaths of children. The RFRA claim would therefore flatly fail in that case. Rather than highlighting one scaremongering scenario which occurred in Canada, these purveyors of smear could focus on instances of suppression of religious practice closer to home. Georgians know better, as they recognize the threats illuminated by Fire Chief Kelvin Cochran’s termination due to his religious views.
This “example” reveals a deeper issue—sloppy advocacy. Better Georgia links to a story about a religious believer’s alleged child abuse, yet fails to point out that no religious claim was even brought in the case. Of course, the fact that this “concerning scenario” took place in Canada with its entirely different legal system was lost on the group too. It’s almost as if Better Georgia has scoured the web for any information it can find which links bad things happening with religion. The group certainly has not come up with a legitimate example showing any serious danger of H.B. 29.
Even the group’s touting of a piece by a Georgia district attorney misses the mark. The examples in that piece involve criminal prosecution for child abuse without any discussion of a successful religious defense. Child abuse and other cases involving bodily harm to human beings are prosecuted routinely nationwide every day. These take place in states with RFRAs like H.B. 29. How often have we heard about successful RFRA defenses or other religious defenses to such prosecutions? Why can’t Better Georgia or any RFRA opponent point to any?
The reason is that they can’t be successful. Multiple courts in multiple states have held that preventing child abuse is a compelling government interest. Georgia courts have already held that the state has a compelling interest in the welfare of children. As noted above, under H.B. 29 and other RFRAs, the government can burden religious beliefs when it has a compelling government interest. In failing to discuss this point while asserting the dangers of H.B. 29, District Attorney Cooke has misrepresented the danger of the bill, and I hope he will issue a correction.
Another “case” cited by the smear campaign is that of parents beating their son to death. According to Better Georgia, these parents might be able to walk away from criminal charges because of H.B. 29. Not only is this an absolute distraction, but it is an insult to Georgians’ intelligence that they might consider H.B. 29 to legitimately offer a defense to such actions. The Better Georgia ad claims “abusers will be able to hide behind religion in court.” Really? How would they do that under H.B. 29? I challenge these inciters of fear to find one legitimate explanation of how this would be permitted under the strict scrutiny standard laid out above. Exactly. It wouldn’t.
Indeed, Better Georgia does not even highlight any attempted legal defense using a religious freedom claim. The fear that there would be one appears nonexistent. Yet, sadly, the simplistic reduction of how religious freedom law works manipulates human passion and deliberately confuses in order to promote division and hatred of religious people—based entirely on misrepresentations. Better Georgia should be ashamed. Georgia does deserve better.
It’s unclear what Better Georgia is even specifically basing its claims on in these alleged “concerning scenarios.” Perhaps it is looking at language in Section 50-15A-3 to exclude the bill’s application to parental rights regarding “the care and custody of such parent’s minor children.” But any simple reading of this provision reveals that it is stating the area of parental rights as it currently exists is to be left unrestricted by the additional protections of H.B. 29. Therefore, the state will continue to be able to regulate parental rights as it currently does, and this bill does not alter that. Indeed, H.B. 29 notes that these parental rights issues are to be left unrestricted “as provided for under the laws of this state and of the United States.”
Yet the ad does not stop there. Alas, more fact checking is needed.
“Georgia House Bill 29 would provide a free pass for business owners who believe homosexuality is a sin to openly deny gay Americans employment or service.”
False. Neither H.B. 29 nor any other RFRA simply applying strict scrutiny to claims of infringement gives anyone a “free pass.” The evidence of this happening is simply nonexistent. Indeed, it is notable that the smear campaign can’t even cite to one instance of a business owner “openly deny[ing]” such service!
For these same reasons, claims that the Michigan RFRA will “let EMTs refuse to serve gay people” and that the Arizona and Mississippi RFRAs from previous years are “right-to-discriminate” bills are completely misleading. Any proper understanding of RFRA—which simply restores a previous standard protecting First Amendment rights—would expose someone making such claims to be a fabricator.
More fact-checking is needed.
“A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus or Muslims.”
False. Indeed, the opposite is true. The protections in H.B. 29 are the very protections needed to ensure the exercise of all religions—whether Jews, Hindus, or Muslims—is protected. If the smear campaign had cared to accurately represent this point, it would have seen that only this month, the U.S. Supreme Court protected a Muslim inmate’s right to religious practice under the same strict scrutiny standard in RFRA’s cousin—the federal Religious Land Use and Institutionalized Persons Act.
Indeed, H.B. 29, and other RFRAs, protect religious exercise regardless of religion. These laws do NOT discriminate, nor do they discriminate between religions, but protect individual religious claims under the framework explained above. Moreover, they protect religious exercise in a variety of situations—such as the Texas RFRA’s protection of those seeking to feed the homeless—which are not cited in this attempt to incite hatred against religion. Any simple reading of the law will reveal all this. But apparently Better Georgia did not even do that.
RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. Thankfully, some liberal organizations are willing to more fairly represent it. Aside from what Better Georgia thinks, all Americans of political persuasions and religions who care about individual expression should be supporting H.B. 29. The bill’s text and history of RFRAs elsewhere lend support to this conclusion, while Better Georgia’s conclusions have no support whatsoever.