Georgia Equality Executive Director Jeff Graham (from left), Emory University law professor Sasha Volokh, state Sen. Josh McKoon, and state Rep. Taylor Bennett discuss RFRA on January 6, 2016.For a very long time, Americans seemed to know exactly what the words “religious freedom” meant. The First Amendment took care of that. To address lingering concerns, Congress passed the Religious Freedom Restoration Act of 1993. Yet in recent years, Georgia has been swept up in a growing movement to pass similar, state-level RFRAs—21 states currently have them—deemed necessary to further protect religious rights.
For the past couple of years, the RFRA effort has faced criticism for its alleged ulterior motives. Progressives believed RFRA would let business owners deny services to customers—especially the LGBT community—on the claim that it conflicted with their religious beliefs. Critics of the bill, arguing the law would provide a “license to discriminate,” eventually won support from Georgia corporations and left-leaning faith leaders. That one-two punch proved effective in preventing the passage of a RFRA bill.
Don’t expect the rumble over RFRA to die down anytime soon with the 2016 legislative session starting next week. A glimpse of what’s ahead was on display last night as RFRA’s biggest champion and critic jostled over the bill’s merits for the first time since the bill’s introduction. State Sen. Josh McKoon, the Columbus Republican who authored Georgia’s RFRA bill, squared off against Georgia Equality Executive Director Jeff Graham, the state’s foremost gay activist, in a panel discussion hosted by the American Constitution Society and moderated by Atlanta Journal-Constitution reporter Greg Bluestein. Rounding out the panel were state Rep. Taylor Bennett, a Brookhaven Democrat who was recently elected by a GOP-leaning district largely on the strength of his opposition to RFRA; and Emory University law professor Sasha Volokh. More than 100 onlookers crowded into a conference room in the 32nd-floor law offices of Bondurant Mixson & Elmore in Midtown. By contrast, McKoon noted, fewer than 10 had shown up to the initial legislative hearing for the measure.
During the contentious, 90-minute symposium, the four panelists discussed the bill’s potential effects and whether such a measure was needed. McKoon said he supported RFRA because people of faith would get “modest” legal protections to bolster their religious beliefs in the face of government intrusion. As an example, he pointed to Savannah State University, where school officials kicked off campus a Christian student organization for having a foot-washing ceremony. Georgia’s RFRA, he noted, mirrors the wording of the federal RFRA. He wants to ensure those same safeguards are in place when it comes to matters of state law.
Graham stressed that new safeguards shouldn’t undermine current nondiscrimination policies that protect the LGBT community. Without clearer language in McKoon’s bill, RFRA would “erode” strong municipal nondiscrimination rules like those in Atlanta and diminish weaker ones found in 59 other Georgia cities, he said. Even worse could be the impact on healthcare benefits, child abuse laws, education funding, and government benefits.
“This is an active area of advocacy for folks who don’t believe in LGBT rights,” said Graham, further characterizing RFRA as “backlash against our constitutional rights that we won for marriage.”
Although he didn’t believe there was “hatred in Josh McKoon’s actions,” Graham said many RFRA supporters have latched onto his bill as a way to deny LGBT people their rights. Georgia’s lawmakers aren’t alone in this effort: In 2015, he said, more than 100 pieces of legislation sought to discriminate against the LGBT community. However, McKoon refuted the harm it would cause to Georgians, noting the federal RFRA has never actually led to discrimination claims.
“RFRA is probably the most vetted piece of legislation the Georgia General Assembly has ever considered,” McKoon said.
Much of that vetting has followed what McKoon described as a “media firestorm” following a 2014 measure passed in Arizona that reached beyond the federal RFRA. (That state’s Republican governor, Jan Brewer, ultimately voted the bill.) Combined with a similar bill in Indiana that led to massive boycotts and national ridicule, he believed the backlash in Georgia happened based on the “parade of horribles” that scared people away from his measure. In reality, he said, Georgia’s RFRA was different from those measures.
Volokh, who studies constitutional law and had clerked for two U.S. Supreme Court justices, said the bill’s wording would likely not be enough to override existing nondiscrimination ordinances. Nevertheless, he added, many people still support RFRA, thinking that it would legalize discrimination, even if it didn’t actually do that.
The latest version of RFRA, which sits in the Georgia House Judiciary Committee, will come back at some point during the legislative session. After the Senate approve the measure, it was tabled last year due to an amendment from then-state Rep. Mike Jacobs that added language to explicitly block “discrimination on any ground prohibited by federal, state or local law.” (Jacobs, a Republican, has since become a DeKalb County judge; his Brookhaven seat was won by Bennett.), Right-wing Republicans claimed Jacobs’s amendment “gutted” the bill, and RFRA never made it to the House floor for a vote.
Whereas RFRA’s debate crept up in 2014 and 2015, the issue of “religious freedom” stands to be a contested issue starting on Day One of the 2016 legislative session. Just yesterday, a group of more than 100 major corporations including Google, Delta Air Lines, and Home Depot launched an initiative called “Georgia Prospers” to oppose RFRA so that workplaces remain “diverse and welcoming for all people, no matter one’s race, sex, color, national origin, ethnicity, religion, age, disability, sexual orientation, or gender identity,” according to a pledge taken by those businesses.
Graham warned RFRA’s passage would hurt Georgia’s reputation through the potential loss of major sporting events or convention business. (“I don’t like to see Georgia be the punch line on a comedy show.”) McKoon noted that seven out of the 10 most recent Super Bowls happened in states with RFRA on the books. (“Perception is a problem. People have peddled hypotheticals with no basis in reality.”)
RFRA opponents this year aren’t just fighting McKoon’s measure, but numerous other religious protection bills that potentially pose bigger threats. State Sen. Greg Kirk, an Americus Republican, next week plans to introduce the First Amendment Defense Act that would protect government employees who object to same-sex marriage. (Think Kim Davis, the Kentucky clerk who went to jail for not issuing marriage licenses to same-sex couples.) Other bills seeking to give religious rights a shot in the arm are expected to pop up as well. With the 2016 presidential election kicking into high gear, Georgia will be a frequent stop for GOP candidates seeking to drum up support ahead of the SEC primary on March 1. Don’t be surprised to see Ted Cruz and other presidential hopefuls grandstanding on behalf of “religious freedom” inside the Gold Dome.