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Why RFRA Fizzled in Georgia

Georgia's capitol building -- the gold dome  that you can see clearly from the I-75/I85 connector in downtown Atlanta.

By Dave Oedel

The most controversial bill that got killed in the last days of Georgia’s General Assembly ending April 2, 2015 was Georgia’s proposed version of the Religious Freedom Restoration Act, S.B. 129, that had been passed by Georgia’s Senate but was languishing in the House. After Indiana enacted a similar bill in March and immediately suffered withering scorn from the likes of Apple’s gay CEO Tim Cook, Georgia’s RFRA died.

Though its sponsors vow that it will return in 2016, it seems unlikely to gain any more traction then, as it had little practical reason for passage to begin with, and its core constituency seems more riveted on matters like same-sex marriage.  The vigor with which Georgia’s RFRA was opposed by gay rights advocates, while comparatively strong as a media matter, was also more symbolic than substantive, in keeping with the largely symbolic character of the proposed law.

With the whole controversy appearing to be more of a media storm without much practical significance, yet with real possible state reputational damage looming, Governor Nathan Deal with his leadership team guided the bill to a quiet death.

On the surface, state-based religious freedom restoration acts, passed in 19 states prior to Indiana’s far-more-recent version, seem relatively innocuous. They have generally only required states to restore the traditional form of strict legal scrutiny for state laws that would burden free exercise of religion. In other words, in states that have adopted RFRAs, states must demonstrate compelling reasons, without viable alternatives, before burdening an individual’s religious rights.

The whole perceived need to restore religious rights stemmed from a 1990 Supreme Court case that gave increased deference to state laws impinging on religious rights.  That case did not directly implicate mainstream religions, but arose out of questions of generally applicable unemployment compensation rules when applied to a firing based on peyote-smoking native-American religious practices. The federal government and, eventually, 19 states pushed back against the Supreme Court’s suggestion that religious rights are somehow second-class in comparison with other first amendment rights to speech, petition and assembly that do garner strict legal scrutiny under the U.S. Constitution.

Most of the states that adopted RFRAs were traditional Bible-belt states, with a couple of exceptions like Connecticut. However, business-conscious states in the Bible belt like Georgia and North Carolina never passed RFRAs, apparently concerned not to appear preoccupied with religious sensibilities, and to present themselves as more friendly to religiously-neutral major corporations.

For more than 20 years, nobody in Georgia or North Carolina seemed to miss the strict-scrutiny standard for religious freedom claims. That’s mostly because RFRA laws are rarely significant as a practical matter, in turn because states generally aren’t in the business of burdening religious free-exercise rights. In the rare cases in which state RFRA laws have had any bearing, they’ve been asserted in curio-cases, like the case of a native American student in a Texas high school who wanted to wear his hair long despite a dress code.

Three recent legal controversies, though, got the attention of sponsors in places like Arizona, Indiana, Arkansas, North Carolina and Georgia – red states that hadn’t previously enacted state RFRAs. First was the 2012 case in which a Colorado baker was fined for declining to provide a wedding cake for a same-sex wedding pursuant to a state non-discrimination law protecting gays in Colorado. Then there was the 2013 Supreme Court case of Hobby Lobby (following from another controversial case, Citizens United) holding that corporations like Chik-fil-A may be able to assert religious freedom claims like individuals. Third is the impending decision on gay marriage at the Supreme Court challenging states like Georgia with constitutional bans on gay marriage.

In general, religious opponents of gay marriage wanted a platform for objecting to the possible federal imposition of same-sex marriage, and a related concern about the possible federal imposition of equality rulings like the one out of Colorado. A state RFRA seemed to provide that platform, at least temporarily, but would still be trumped to whatever extent the Supreme Court rules in June on overlapping issues of same-sex marriage and equality.

Given that states like Georgia had gone more than two decades without a state RFRA, it was hard to deny that gay-marriage and gay-equality concerns were driving the recent proposals in Georgia like S.B. 129. Indiana Governor Mike Pence discovered that to his chagrin after signing Indiana’s bill.

Arizona’s governor Jan Brewer had previously vetoed a similar bill in Arizona. Though neither Brewer nor Deal has any presidential pretensions, both seemed savvier than Pence, whose presidential prospects seem to have vanished in the process of the RFRA kerfuffle.

Advocates for a state RFRA in Georgia will now be watching the Supreme Court to see if it will offer any leeway to states in defining “marriage” so as to permit states like Georgia to reserve marriage to opposite-sex couples, so long as the states otherwise guarantee substantively equal treatment to same-sex couples.

That’s the more substantive issue underlying the RFRA debate – and it will be decided in Washington, not in any state capital. Power on such questions has shifted since the founding of the nation, when six states established their own official religions. Now the Supreme Court will decide what marriage means in the process of ruling on what equal treatment means with respect to gay citizens.

As a practical matter, religious freedom simply can’t be “restored” when it bumps up against equality guarantees. To that extent, Georgia’s recent RFRA bill was doomed from the start.

Currently there are "2 comments" on this Article:

  1. Dave Oedel says:

    The New York Times takes another view than mine, apparently thinking that the RFRA laws will be significant, providing possible carve-outs, after the Supreme Court rules on same-sex marriage. Here’s the Times’ discussion.

    http://www.nytimes.com/2015/04/23/us/opponents-of-gay-marriage-ponder-strategy-as-issue-reaches-supreme-court.html?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news

    I suppose that the Supreme Court could leave some room for such RFRA carve-outs, but we’ll know more after the Supreme Court rules in the same-sex marriage case by the end of June, and, more immediately, after oral argument in the same-sex marriage case next Tuesday.

    As I mentioned in my piece, though, I think a bigger issue will be, assuming the Court rules that substantive equality is required, whether states still can have license to define “marriage” in their own ways. In other words, the Court could take no position now on whether denial of the nomenclature of “marriage” itself is its own harm if substantive equality is provided. The Times does not even credit that as a possible outcome, but it is a logical possibility that the justices must be considering as a way to adhere both to the doctrines of equal protection and state sovereignty on a matter of traditional state concern.

  2. Dave Oedel says:

    Here’s another discussion of a new type of wrinkle in this debate, discussed by Louisiana Governor Bobby Jindal. http://www.nytimes.com/2015/04/23/opinion/bobby-jindal-im-holding-firm-against-gay-marriage.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-region&WT.nav=c-column-top-span-region Louisiana already has a state RFRA, but now is proposing a more specific carve-out against adverse state action targeting businesses that may have religious objections to providing services in the context of same-sex marriage. This is not decided already in states like Louisiana because their RFRA laws preceded the spate of legal rulings in the last several years according religious liberties to corporations. The idea of things like Louisiana’s proposed Marriage and Conscience Act would extend RFRA-like protections to corporations in Louisiana. Again, it is possible that efforts like this may be mooted by the Supreme Court determination in the same-sex marriage case now pending before the Court, but it’s also possible that a religious liberty exception could still be permitted after the Supreme Court ruling.

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