Of all the “hot-button” issues bandied about during the 2015 session of the Georgia General Assembly – from legalizing medical marijuana to limiting driver’s licenses for undocumented immigrants – few garnered more attention than SB 129, the introduction of a state version of the Religious Freedom and Restoration Act (RFRA). How, when placed alongside issues that had immediate and tangible impacts for Georgians, namely to their health and to their ability to participate in the economy, is it that the somewhat nebulous and esoteric RFRA grabbed the national spotlight?
The simple and not so simple answer can be found by sifting through the great big woodpile of conjecture about what might or might not happen were RFRA to become law.
According to proponents of the law, nothing of any real consequence will happen.
According to opponents of the law, those who wish to discriminate against others will be allowed to do so if their excuse is their religion.
You see, the recent debate around RFRA legislation in states like Indiana and Georgia, was couched in terms of needing to “protect” certain people, specifically those people who practice a religion (as defined by people practicing it), from government encroachment. The proponents make a grand religious liberty argument that on its face seems perfectly reasonable. Given our nation’s great historical and constitutional commitments to the ideal of respecting personal freedoms, if not its checkered application of said commitments, it would seem that RFRA should be a fairly straightforward and innocuous piece of legislation. In fact, it might be fair for one who understands that the free exercise of religion is a right expressly protected by the First Amendment to the US Constitution, to ask the question, “What’s the point?”
Ahh yes, the point. The point it seems, is buried somewhere on the continuum between letting individuals do whatever they want to do and society, by way of enacting and enforcing laws, deciding what constitutes the greater good. And it is a point that has historically been a moving target on the continuum. The other point of complication is that this continuum is wrapped up in that interesting tangle of American jurisprudence that we call, “federalism.” And all of this gets ferreted out, for better or worse, but the judicial branch of government.
So which way is it?
Is RFRA, as Representative Sam Teasely (R – Marietta), the sponsor of the measure in the Georgia House told me in a Facebook conversation, really just a law meant to restore the religious protection that folks once enjoyed, or is it the beginning of another ugly chapter in American history where folks use certain interpretations of their particular religious texts as license to mistreat others?
First, let’s take a look at those religious protections that RFRA is meant to “restore” by reviewing a brief history of religious protection in the United States. The judicial branch has been weighing issues of personal liberty versus the greater good of the rule of law since the beginning of the republic. Perhaps most famously regarding religious liberty, the Supreme Court decided against The Church of Jesus Christ of Latter-day Saints in the 1878 case, Reynolds v United States. The Mormon Church felt that US anti-bigamy laws infringed on their member’s free exercise of religion, in this case, the “religious duty” for a Mormon man to be married to more than one Mormon woman. The Supreme Court decided unanimously against the Church and cited, among other historical documents, Thomas Jefferson’s 1802 letter to the Danbury Baptist Association where Jefferson drew a distinction between what one believes and between what actions one takes that are inspired by his beliefs, when he wrote that,
“…religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions.”
The Court went on to punctuate the significance of Jefferson’s letter by writing in the majority opinion,
“Coming as this does from an acknowledged leader (Jefferson) of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order…Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”
The courts were fairly consistent in their application of the distinction between “belief” and “action inspired by belief” with regards to the free exercise of religion; that is until the 1960’s when the very active Warren Court, in the case of Sherbert v Verner, introduced the idea of the “compelling government interest.” The essential effect of this new test was to place a greater burden on the government to justify intervention in cases where religion and law conflicted. In other words, after Sherber v Verner, the government had to apply a kind of “strict scrutiny” to indicate that the subject at hand was truly a matter of crucial importance to society, as opposed to something that might simply be preferred.
As is sometimes the case on matters of social acceptance, the pendulum swung the other direction again under the Rehnquist Court, with the Court’s 1990 ruling in the case of Employment Division, Department of Human Resources of Oregon v Smith. In this case, the defendants were members of the Native American Church; a religious practice of which was the consumption of a Schedule I controlled substance called peyote. The defendants were fired for using peyote but being members of the Native American Church, claimed that their religion exempted them from laws prohibiting peyote use. The Court disagreed and held that Oregon’s law was a “neutral law of general applicability,” which meant that it was not a law intended to target one group over another, but rather it was meant to apply to everyone in Oregon. The majority decision went on to state, quite correctly, that,
“To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The decision, with the majority opinion written by conservative Justice Anton Scalia, was met with disdain, largely from the left side of the political spectrum. In response, liberals in Congress drafted and President Bill Clinton subsequently signed in to law, the first Religious Freedom and Restoration Act in 1993. This law effectively reinstated the Warren Court’s “compelling interest” and “strict scrutiny” tests from the 1960s. A few years later in 1997, the Supreme Court ruled in City of Boerne v Flores, that Congress’s 14th amendment enforcement powers, and thus the federal RFRA, did not extend to cases where state law was being challenged by someone invoking a religious motivation for exemption from existing law and as a result, several states quickly adopted their own versions of the RFRA. So when politicians like Sam Teasley suggest that RFRA is just meant to restore things to the way they used to be, does he mean the way things used to be before 1963? Doubtful.
So here we are, 18 years since the Supreme Court ruled that the federal RFRA doesn’t apply to state claims, and peculiarly the political winds have shifted 180 degrees from those that blew in response to Employment Division vs. Smith in 1993. For 18 years, states have passed RFRAs in dribs and drabs. Now suddenly conservative Christian politicians principally motivated by their own evangelical agendas, are scrambling to take up the RFRA mantle. But why now? What has changed in American culture that has prompted those from the fringes of the overwhelming majority religion in the United States, 78.5% of all Americans according to the PewResearch Religion and Public Life Project, to proclaim their need for protection from government overreach?
As the LGBT community slowly climbs their way to greater acceptance and equal treatment in society, these fringe RFRA champions, the shrill subset of the 78.5%, want to use their religion as a foundation from which to justify discrimination. Their goal is to whip conservatives in to a frenzy of fear and paranoia that somehow without a state RFRA, state and local governments might *gasp* actually make them treat gay people like fellow human beings.
Conservative news feeds pump out a steady flow of incendiary stories about mom and pop bakers and hapless wedding photographers getting fined for violating local anti-discrimination ordinances when they refuse to serve LGBT customers. Each of these stories is peppered with ridiculous made-up words like “homofascist” and is accompanied by a religious persecution complex that would make the Jim Crow South proud. The rationale goes something like this, “My narrow interpretation of some text x means that I should not have to follow the laws the rest of you follow. And if you make me follow them, you are trampling on my religious liberty.” This is of course, nonsense. One can maintain whatever religious ideas one feels like maintaining, as long as those ideas do not lead to behaviors that adversely impact others.
And before one scoffs at that assessment, Senator Josh McKoon, (R – Columbus), the author of SB 129, called an amendment that would have expressly prohibited using the RFRA to discriminate, a “poison pill amendment on Georgia RFRA.” The House Judiciary Committee’s vice chair, Barry Fleming, (R-Harlem) said that the amendment “will gut this bill.” When language explicitly prohibiting discrimination is a “poison pill” that will “gut” the bill, then for what purpose exactly was the bill intended?
When I asked Senator McKoon if he could guarantee that RFRA will not be used to discriminate in the future, rather than answer with a Yes or No, he deflected and said he was “confident that the prior interpretation which hasn’t allowed discrimination will continue.” Confident? Why? When CNN’s Gary Tuchman did a story about what RFRA might mean to some Georgians, he interviewed several florists in South Georgia who admitted on national television that they would not serve openly gay people. One said “I would respectfully tell them that I’m sorry – that I just don’t want to do it because of my beliefs.” Ironically, these same florists had no compunction with delivering flowers to someone who might be getting remarried – and thus committing the sin of adultery as defined in the Bible, which incidentally is a sin expressly prohibited by the Ten Commandments. For some reason being gay is a “different kind of sin” according to one flower shop employee. With so many players in this game of homophobic mental gymnastics, being “confident” that discrimination will happen just doesn’t cut it.
Lawmakers such as Senator McKoon and Representative Teasley have a choice. If the current legislation is not about discrimination, then they should learn from Indiana’s painful example, avoid corporate boycotts and international embarrassment, and explicitly ensure that it’s not about discrimination. Until then, those who are interested in equality remain highly dubious of the intentions of a few fringe anti-gay evangelicals in elected office.
Thus here we are, full-circle, back to Employment Division v Oregon. Do we think that a person’s religious beliefs give them the right to break the law, to deny services to others, to dictate the behaviors of others, to control the healthcare of others, or to harm others? Do we really believe that one’s magical ideas about a drug for example, suddenly make the drug’s adverse health effects disappear? Peyote is either an illegal drug for good reasons or it’s not and should be available to all. If the baker, the photographer, and the florist are going to offer their goods and services to the general public, then the general public is who they offer them to; they don’t get to refuse service to an arbitrary sub-set of the general public based on some personal interpretation of a snippet of text that they have been led to believe is more important than the well-being of real people. Religious beliefs do not confer special dispensation from the rules the rest of society has agreed to follow. Beliefs remain intact without RFRA. Actions however must comport to the law of the land. As Jefferson said, “the legislative powers of the government reach actions only, and not opinions.” Bigoted opinions while repulsive, are protected. Bigoted actions are not.
The sagacious Jefferson again speaks to us from the past,
“Bigotry is the disease of ignorance, of morbid minds; enthusiasm of the free and buoyant. Education and free discussion are the antidotes of both. We are destined to be a barrier against the returns of ignorance and barbarism.”