Debate over so-called “religious freedom” legislation centering on same-sex marriage is reaching a crescendo in Georgia, where the clock is running out on the current two-year legislative cycle, and Republican Gov. Nathan Deal signaled earlier this month that he is reluctant to sign any of the pending bills without significant revision.
Two bills hang in the balance. SB 129, the “Georgia Religious Freedom Restoration Act,” is similar to the federal RFRA law signed by Bill Clinton and corresponding laws in 20 states. It would force state and local authorities to only burden the free exercise of religion via the “least restrictive means of furthering [a] compelling government interest.”
The prospects for Georgia’s RFRA bill look especially dim, after an LGBTQ-friendly Republican legislator attached what proponents call a “poison pill” amendment in committee last year.
A bill with much better prospects is HB 757, which now wraps together two previously separate measures: the “Pastor Protection Act” and the “First Amendment Defense Act.”
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The former is designed to stop government from compelling churches and church leaders from participating in same-sex marriages, while the latter would forbid government from taking “adverse action” against any person or faith-based organization “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.”
Columbus attorney and state Senator Josh McKoon is the lead sponsor of SB 129 and a supporter of HB 757. He is arguably the most visible and articulate supporter of “religious freedom” legislation in the Georgia legislature — a fact that has made him a lightening rod for Twitter arguments with LGBTQ rights advocates.
The following interview with McKoon has been edited and condensed.
Let's go ahead and march through the major provisions of HB 757. To propose a state law that says religious leaders cannot be forced to perform a wedding with which they're uncomfortable strikes me as extraneous. Isn't it a settled matter of constitutional law that the government can't tell pastors anything about how they should conduct their services?
Yes, I agree with you on that. When the “Pastor Protection Act” came over from the House, I took to the well of the Senate and I referred to it as the “Politician Protection Act.” Because that’s essentially what it is.
It’s one of these things that comes up when we have an issue that people are concerned about — this general subject of religious freedom. There's a lot of concern about it all over the state. Or, in an election year, and you've got members that will face primary opposition, they want to be able to say, “I voted for a religious freedom measure.”
And so yes, I agree with you on that. The notion that any clergyman is going to be forced by government to conduct their religious ceremony in any way against his will is — that would never happen. And there's no court that would order that.
What about the second part of the Pastor Protection Act? Saying that a religious house cannot be sued if they don't want to rent out their facilities to someone who wants to have a ceremony there that the religion might find objectionable.
This is a closer question. In most communities in the state of Georgia, if the church, the mosque, the synagogue, the temple has adopted standards of, “This is what this property can be rented for,” then I think they can typically address it that way.
At a Catholic church with a fellowship hall, you can let the Knights of Columbus rent the hall, you let the Boy Scout troop rent the hall, you let couples that are being married in the church rent the hall. If these things are laid out in clear language, “We're not going to have a swap meet in the hall, we're not going to open it up to things that are totally divorced from the church’s mission,” then I think you largely address that concern.
However, the city of Atlanta has [a nondiscrimination] ordinance, and there are other local governments that have ordinances that might reach to this issue and possibly set up an opportunity for that question to be litigated. So I can't say that [this provision of HB 757] is totally unnecessary.
One part of the bill says that no business can be required to operate on either of “the two rest days,” and then in parenthesis it says “Saturday or Sunday.” That strikes me like it could be interpreted as an implicit state endorsement of Christianity and Judaism, considering that other religions have rest or prayer days on days that are not Saturday or Sunday, most notably Islam having its prayer day on Friday.
I think that's an interesting point. I will say, I know there is a provision citing Sunday as a common day of rest in the Georgia Constitution. [Editor’s note: This provision only refers to the numbers of days after which the state legislature may convene itself for a special session if the governor does not do so — they can do it after three days “excluding Sunday.”]
I'm not aware of any litigation on that subject. I'm not telling you that that's not something that might be litigated at some point.
I do know there was some discussion about broadening that, and the response essentially was, “Well there there's existing statutory and constitutional law supporting Saturday and Sunday as common days of rest.”
Let’s talk about the “First Amendment Defense Act” part of the bill. It strikes me that the most significant thing this bill would do is that it would make nonprofits and other agencies eligible for state funding even if they don't provide services equally to same-sex couples.
We had testimony in the [Senate] Rules Committee regarding domestic violence shelters: “What about a domestic violence shelter that will turn someone away because they're in an abusive relationship but they're in a same-sex relationship? Or they're cohabiting with someone but they're not married?”
I asked this person, “Are we aware of any such agency in the state of Georgia that has these policies?”
And essentially the response was, “Well no, but you know, this could happen.” [Ed. note: There was a publicized incident in 2011 in which a homeless shelter in McKoon’s city of Columbus, Georgia denied service to a lesbian couple.]
My response to that concern is twofold.
First, most of these entities — if they take government money — they're taking federal government money as well. There are strings that come along with that that would trump this supposed flaw in the First Amendment Defense Act.
But secondarily I would say, until we have some evidence that there is an agency that is adopting that policy or that posture, I think it's sort of a red herring. If it's occurring, then there needs to be a discussion about it. If it’s not occurring, then there's certainly no expectation that they will suddenly — after having operated and received government funds and having one set of policies — that they're suddenly going to adopt new policies.
It doesn't strike me as unrealistic that, say, a Catholic hospital that draws some state or local tax dollars would institute a policy that would not allow spousal visitation from same-sex spouses.
There are some federal regulations that have been issued that essentially say that the patient is in control of who may visit them. That, in my view, would address that objection.
So what is the kind of situation that you think might actually happen that this section of the bill is designed to forestall?
In the Supreme Court case that redefined marriage last summer, the court didn't just say, “We are going to recognize same-sex marriages.” The court said there's a fundamental constitutional right to marry, and that right is to be equally enjoyed between opposite-sex and same-sex couples.
When you say there's a fundamental constitutional right to be equally enjoyed between two different classes of people, then for someone to say, “Marriage is between one man and one woman” is at least arguably teaching discrimination.
And there's one 1983 U.S. Supreme Court case — Bob Jones University vs. United States. In that case, Bob Jones University in South Carolina had policies that were racially discriminatory [in that they banned interracial dating or marriage among the student body].
Bob Jones took the position that, “Well our religious point of view, our theology teaches us that this is the appropriate policy.”
And the Internal Revenue Service said, “Well that's fine, but you're engaging in invidious discrimination that's banned by the Civil Rights Act, so we're going to strip you of your tax exempt status.”
The case went to the Supreme Court, and the Supreme Court said government has a fundamental overriding interest in eradicating racial discrimination; therefore the IRS is empowered to strip them of their tax-exempt status.
There are many legal scholars who — in the wake of the same-sex marriage decision — have said that now any church or religious organization or religious school that teaches that marriage is between one man and one woman is engaging in similar discrimination and is therefore going to be subject to taxation.
Obviously state government can do nothing about the IRS coming in and saying you're subject to income tax. What the state government can do is to make sure that neither the state nor local government begins to tax churches based on their teaching.
One of the purposes of this bill would be to make sure that, for example, the city of Atlanta [which has an ordinance banning discrimination on the basis of sexual orientation] does not decide that it's going to assess property taxes on all property owned by religious organizations within the city limits of Atlanta.
I have to say, though, that harkening back to the Bob Jones University precedent invites a comparison to current events that isn't exactly flattering to your cause.
The Christian tradition, for most of the 2,000 years of the church’s existence, taught that marriage is between one man and one woman.
Some of these twisted, racist [theological interpretations] that really came to the fore in the 1920s were used as a basis for [anti-miscegenation] state laws that abrogated the common law on marriage. The common law on marriage had always been that if a man and woman hold themselves out to be married — they go have their wedding at the church or wherever — and they can conduct themselves as husband and wife. They are considered married.
There was no racial component to that; there wasn't much of an age component to that. That was it.
So, the notion that people of faith, throughout the entire history of the church, were saying, “Oh no, we can't have interracial marriage,” is not accurate.
What we had was a strain of racist politicians in the ‘20s moving forward into the ‘50s and ‘60s adopting these laws banning interracial marriage.
So I think to say, “The bans on interracial marriage that came out in the early part of the 20th Century is analogous to a 2,000-year understanding of what marriage is” is not a fair comparison.
Let’s turn the page and look at SB 129 [the Georgia Religious Freedom Restoration Act] which, unlike the legislation that we’ve been discussing up to this point, is not specific to the issue of marriage. I've read this bill many times and I don’t really get what it would do.
When Indiana was considering a similar bill, George Stephanopoulos famously got [Indiana Governor] Mike Pence on television and asked him repeatedly, “Under this legislation, would a baker be able to refuse to bake a cake for a same-sex wedding?” And the governor dodged the question.
I thought I would put the same question to you. Is that a scenario that could happen in Georgia under your RFRA bill?
No, it could not, and let me tell you what the difference is.
Our legislation says that in order to use a RFRA defense, there has to be a legal action between the plaintiff and the government. The government must be a party.
The Indiana bill said the government did not have to be a party, that in a lawsuit between two private entities, someone could raise a RFRA defense.
And that's a crucial difference between the two pieces of legislation, because if I'm coming into your bakery or your photography studio or what have you, and I say, “Hey you need to serve me,” and then you say, “No I'm not going to do it,” and then we get into litigation with one another, and the government is not involved, in Georgia RFRA is unavailable to you. In Indiana it would have been available to you.
Now, let’s use the city of Atlanta as an example [of what Georgia’s RFRA bill would do] because you’ve got a nondiscrimination ordinance that includes sexual orientation there.
You’ve got a photography studio in Atlanta. A couple that's getting ready to have a same-sex wedding comes in and says, “We’re getting married on this date and we want you to be the photographer.”
The photographer says, “No I can’t do that because this violates my sincerely held religious belief.”
Let's say that they don't sue, but they go to the city of Atlanta and say, “You've got to enforce this nondiscrimination ordinance. This person is discriminating.”
So the city of Atlanta slaps the photographer with a fine. Well, now we've got an adverse action from the government. So the photographer sues the government and they assert the RFRA. And they say, “OK government, you’ve fined me because of my religious belief. You have substantially burdened my religious liberty.”
Well now, that doesn't mean the photographer wins. That means that now the government has to come forward with two things: a compelling state interest, and that [the nondiscrimination ordinance] is the least restrictive means of achieving that interest.
Before we leave the ever-popular example of the bakery, it is my understanding that that scenario [of a baker refusing service to a same-sex couple with impunity] could actually occur in most of Georgia right now, considering that LGBTQ people are not a protected class under federal nondiscrimination law, and there is no state nondiscrimination law that applies to LGBTQ people. There are only a few scattered municipal ordinances.
And that is a point I have made on numerous occasions, because if my intention with bringing forward this bill was to enable discrimination of some kind, then I would not introduce a bill at all. I would just allow the current law to continue.
Are you happy with the status quo, in that regard?
I think the founders were very deliberate in giving us a clause in the First Amendment that says “free exercise of religion” versus “freedom of religion.”
Obviously a member of the clergy is not going to be required to officiate a wedding with which they disagree.
Then if we take another step back — let’s say it’s someone who advertises their services to sing at weddings. And I don't mean with the band afterwards, I'm talking about somebody who's going to sing a hymn that is part of the service.
If that person is approached by a same-sex couple that says, “We want to hire you to do this,” and [the singer] says, “No, I believe that wedding is a sacramental union that involves God, one man and one woman, and this is contrary to my belief,” are we going to say, as a matter of policy, the government is going to compel that person to participate in the order of service against their sincerely held religious beliefs?
I don't think that anybody would suggest that we shouldn’t make room for people who have different beliefs or different ideas.
So your answer to my question is yes?
Well no, because if we talk about walking into McDonald’s and ordering a hamburger and being told, “I'm not going to serve you because you're here with your same-sex spouse and that violates my religious beliefs,” I would say that is ridiculous.
What’s the difference between that and the [wedding] photography scenario?
I think there's an enormous difference.
If you believe, as I do, that marriage is one of seven holy sacraments that the Catholic church offers, it would be no different than compelling me to take communion at a church where I'm not in communion with that church.
But is photographing a wedding necessarily participating in a wedding?
Well I suppose that's the question, isn't it?
Is the wedding singer who sings a hymn as part of the order service — is that person participating in the wedding? Just like the person who's capturing the event on film, who’s in the midst of the ceremony — is that person not an active participant?
That’s why I think a simple yes-or-no answer doesn't really do it.
“He's saying that everybody should just be able to turn somebody away because of their sexual orientation.” That’s not the truth at all.
The truth is that I'm saying that someone shouldn't be compelled to be part of a wedding ceremony that fundamentally violates their religious belief.
I mean, why would we do that in any other context? We would not compel a halal butcher to serve pork, and we would not compel a kosher deli to serve ham, because handling those products would violate their sincerely held religious beliefs.
No, we don't compel vendors to sell products of any kind. We do compel vendors to serve different populations equally.
Right. And I think the fundamental disagreement is that you’re saying that a person who is a wedding vendor should participate in any kind of wedding that comes forward.
What about somebody who comes in and says, “I want you to photograph our wedding,” and the person has been divorced before.
And [the photographer] says, “I believe marriage is forever. I believe you're still married to your former spouse. I can't be a part of what I believe is a bigamous wedding.”
I don't think anybody would seriously argue that that person should be forced against their religious beliefs to perform that service.
But divorced people are not a protected class under federal nondiscrimination law.
And neither are [LGBTQ people].
True, though if I were a betting man I would bet that, within our lifetimes, they will be. But putting that aside, racial minorities are a protected class and is it not the case that the state would compel a wedding vendor to serve an interracial marriage even if it offended their religious sensibilities?
I'm not aware of any historic precedent — outside of people who are fundamentally racist, who are trying to twist theology for their own purposes — who would have ever taken that position.
I think you make a totally coherent moral/theological argument as to why government could compel participation in interracial marriage and not same-sex marriage. But your legal argument escapes me.
Consensus was achieved with the Civil Rights Act by Congress that a religious belief that countenanced racism would be forbidden. There is no such consensus on the definition of marriage.
Adam Ragusea is a journalist in residence and visiting assistant professor at Mercer University’s Center for Collaborative Journalism.