by Travis Weber, J.D., LL.M.
March 19, 2015
This measure is simply designed to ensure that individuals’ consciences cannot be easily trampled by intrusive government regulation.
The claims against this common sense proposal are wild and confused. For example, some have claimed the bill gives businesses an absolute right to refuse service. This is patently false.
The truth is that S.B. 129 provides a method for sincere conscientious objectors of all religions to be protected, while winnowing out those using religion as a pretext to escape application of general laws.
To avail oneself of the protections of S.B. 129, you first have to prove you 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 — a religious practice of human sacrifice, for example, could be burdened — and has done so through the least restrictive means, it is allowed to burden the religious exercise in question.
This is a legal standard known as “strict scrutiny.” It has been used in constitutional law for decades, and has been applied to religious claims for over 20 years under the federal Religious Freedom Restoration Act (“RFRA”) without any documented pattern of abuses such as those claimed by the opponents of S.B. 129. As others have asked, where are these alleged “discriminators” who are supposedly walking away from criminal charges under RFRA? They simply do not exist.
RFRA simply restores previously strong protections for First Amendment rights. The federal RFRA does not apply to state or local action, so state RFRAs like S.B. 129 are needed. The Georgia RFRA under consideration here merely brings Georgia law into line with federal law.
Religious freedom laws like S.B. 129 never used to be (and still should not be) a partisan issue, as they protect those of all faiths and political persuasions.
The federal RFRA was supported by a broad coalition which cut across political and religious lines. This coalition was composed of groups with a diversity of interests, but they were united in protecting and bolstering the First Amendment.
Indeed, a review of RFRA and free exercise case law going back decades clearly shows its benefit to everyone from Muslims to Jews, Christians to Santeria adherents, and Native Americans to more obscure sects as they seek to protect their beliefs and consciences from being burdened by an ever-more intrusive government.
Now, sadly, many have subjugated their protection of the First Amendment to their political concerns. They have betrayed and slandered RFRA in order to advance their political interests, and in doing so, have compromised their stated principles of individual rights and freedom.
Moreover, RFRAs cut across racial and social lines, and apply in a variety of real-world scenarios, such as property disputes, social welfare (just this past year, the Texas RFRA served as protection for those seeking to care for the homeless), conscience objections to abortion, and restrictions on using controlled substances in religious ceremonies. They are not race-specific. They are not religion-specific. And they are not political party-specific.
By now it should be clear that S.B. 129, in merely applying the well-established strict scrutiny standard to claims of religious exercise, does not give anyone a “free pass” to “discriminate.” Indeed, it is notable that opponents cannot even cite to one instance of a business owner “openly deny(ing)” service, as it claims. The reason is that laws like S.B. 129 don’t provide any “free passes” — what they prescribe is that religious liberty claims must proceed through the framework described above.
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. When people are provided with a proper understanding of strict scrutiny’s application to religious claims, they can see that those making these “free pass” arguments are engaged in baseless fabrication.
Neither would S.B. 129 legalize child abuse, as opponents outlandishly claim. Child abuse and other criminal cases involving bodily harm are prosecuted routinely nationwide every day. These take place in states with laws like S.B. 129. Yet how often have we heard about successful religious freedom defenses to such prosecutions?
These S.B. 129 opponents have discredited themselves and revealed their political agenda by ignoring other instances of oppression to which the bill could bring relief right in their own backyard — like the state of Georgia’s termination of Dr. Eric Walsh for expressing his Christian views. Dr. Walsh preached sermons in his private capacity in his home church. Yet state government agents scoured his sermons for disapproved views on sexuality, and summarily terminated his employment when they found what they didn’t like. When Dr. Walsh is punished for his views, he’s being punished for his religion — right at home in Georgia.
The protections in S.B. 129 are the very protections needed to ensure the exercise of all religions — including that of Jews, Hindus, Muslims, and others — is protected. If its opponents had cared to represent this fact accurately, they would have observed that only this month, the U.S. Supreme Court ruled unanimously in favor of a Muslim inmate’s religious rights under a law applying the same standard as S.B. 129 — the federal Religious Land Use and Institutionalized Persons Act. Yet there is no mention of this or other such cases; this truth is too inconvenient for those leading opposition to the bill.
RFRA never was and should not become a partisan issue, as it protects those of all faiths and political persuasions. All Americans of every political party and any religious faith who care about individual freedom from government coercion should support S.B. 129. The bill’s text and our established practices for analyzing religious claims show that S.B. 129 will merely support conscience rights for all in the face of ever more intrusive government.
S.B. 129’s opponents, including an outfit called “Better Georgia” (which itself is backed by out-of-state groups), should be ashamed of what they have said about RFRA. Georgia does deserve better.