Recently, a broad coalition of groups sent a letter to President Obama urging him to require the Attorney General to “review and reconsider” a “flawed” Office of Legal Counsel memo—issued in 2007 (i.e., during the Bush Administration)—that argued that the Religious Freedom Restoration Act provided the basis for exempting faith-based organizations that contracted with the government from legal requirements that forbid taking religion into account in certain hiring decisions. The letter asserts that the memo relies on “flawed legal analysis” and offers a “broad and erroneous,” indeed “dangerous,” “interpretation of RFRA,” “permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.”
This is just the latest skirmish in a long-running battle. Here’s a snippet of something I wrote about it ten years ago:
One of the central bones of legislative contention, evident once again in the recent House debate over the Workforce Investment Act, is connected with Title VII of the 1964 Civil Rights Acts, which exempts faith-based organizations from legal strictures against religious discrimination. Churches and other faith-based organizations are, in other words, permitted to take religion into account when they hire employees, a provision upheld unanimously by the Supreme Court in the 1987 case Corporation of the Presiding Bishop v. Amos.
Opponents of the [Bush Administration’s] faith-based initiative cry foul when this legal exemption is explicitly extended to government contractors, as it was in the original  charitable choice legislation, and as it has been proposed in several recent pieces of legislation. They want no part, they say, of government-funded religious discrimination, regardless of what religious groups are permitted to do on their own dimes.
The arguments, or rather slogans, of those opposed to the religious hiring rights of faith-based government contractors haven’t really changed. Taking religion into account is, they insist, discrimination, made worse by the fact that those engaging in it are taking government dollars.
The current version of the dispute involves the way in which the OLC memo deploys the Religious Freedom Restoration Act on behalf—of all things—the religious liberty of government contractors. RFRA—passed overwhelmingly during the Clinton Administration but recently by and large abandoned by those on the political Left—requires that laws and regulations that limit religious freedom be justified by a compelling state interest and represent the least restrictive means to attain that interest. It is supposed to provide individuals and organizations a basis for claiming an exemption on generally applicable laws that burden their religious liberty. Most frequently such claims would be made in court and weighed by a judge. The OLC memo represents an administrative, rather than a judicial, determination that even laws that explicitly prohibit government contractors from hiring in accordance with religious criteria—not discriminating against people, but hiring those who support the mission of the organization (a right, by the way, that would seem uncontroversial in almost any other setting)—have to accommodate the religious freedom of the contractors.
You might ask how an Administration could defy the express will of Congress if it passes a law that forbids taking religion into account when hiring for participation in a particular government-funded program. The answer to this question begins with the following consideration: unless the law explicitly repudiates RFRA, the executive is charged with enforcing both laws and reading them in a way that renders them, so far as possible, consistent with one another. So the executive must first ask, in accordance with RFRA, whether the burden on religious freedom represented by the hiring prohibition represents a compelling state interest. The most obvious answer is that, since there are plenty of laws that actually acknowledge the religious hiring rights of government contractors, denying those rights in this instance can’t be a compelling state interest. In other words, RFRA trumps the prohibition in the law.
What’s more, I think that this conclusion is not only good law, but also good policy. Let me summarize the argument I made at greater length ten years ago. A diverse country is best served, not by a uniform, monolithic, and homogeneous social service sector, but by an array of organizations that represent genuinely different approaches to addressing our social problems. A healthy civil society is a diverse civil society. Government should respect and foster that diversity rather than diminish it. The demand that “government not fund discrimination”—usually connected with a demand that government expand its programs for the needy—is for all intents and purposes a demand that government secularize society, that nongovernmental organizations be simple extensions of their government sponsors. This isn’t good for the needy or for the society at large.
Let’s hope that the Obama Administration continues to ignore the importuning of those whose crabbed view of religious liberty would increasingly diminish the role of religion in society.
On July 25th, AJC columnist Jay Bookman dismissed Georgia House Speaker David Ralston’s “Pastor Protection Bill” as an essentially meaningless symbolic gesture. I’m uncharacteristically inclined to agree with him.
In its current form the bill simply states that “[n]o minister of the gospel or cleric or religious practitioner ordained or authorized to solemnize marriages according to the usages of the denomination, when acting in his or her official religious capacity, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion.” This would seem to follow pretty directly from the First Amendment Free Exercise Clause, as University of Maryland law professor Mark Graber has observed.
While I’m not averse to symbolism and, indeed, regard it as an important teaching function of the law, the prospect that pastors will actually be compelled to perform same-sex marriages is a remote one. To be sure, in our current circumstances anything is possible, but that’s not one of the pressing concerns keeping me up at night.
Here are the things that, to my mind, are causes of concern:
- The tax-exempt status of churches and other faith-based institutions that remain faithful to the traditional understanding of marriage
- The eligibility of faith-based institutions (above all, schools, universities, and social service agencies) to compete on a level playing field for government funding if they continue to act in accordance with their long-held belief that marriage is between a man and a woman
- The ability of churches and other faith-based institutions—if they so choose—to demand doctrinal and behavioral conformity, not just of ministers, but of all employees
In a nutshell, I’m concerned that we’re facing a significant challenge to the ability of churches and other faith-based institutions to remain theologically and morally faithful while fully and equally participating in civil society.
And before I discuss these substantive concerns in a bit more detail, let me add a procedural worry. I fear that Speaker Ralston and many other Republicans, having been chastened by the religious freedom contretemps earlier this year in Indiana, Georgia, and elsewhere, will regard this pastor protection legislation as all they need to do. If true friends of religious liberty accept this down payment on a robust commitment to our first freedom as the full price, they will have left our religious institutions vulnerable to all sorts of threats. I recognize that some of my concerns will have to be addressed at the federal level by something like the First Amendment Defense Act, but there is no reason why Georgia could not provide similar protections at the state level. And I also recognize that laws are mere parchment barriers, weaker than constitutional provisions (which may themselves be no more than papier-mâché); neither will protect religious liberty from a public (or an elite) that has grown indifferent or hostile to it.
I turn now to the challenges, beginning with tax-exempt status. During the oral arguments for Obergefell v. Hodges, Solicitor General Donald Verrilli conceded to Justice Samuel Alito that the tax-exempt status of religious institutions that uphold the traditional understanding of marriage is “certainly going to be an issue.” The dissenters took note of this exchange. Chief Justice John Roberts said this:
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.… There is little doubt that these and similar questions will soon be before this Court.
Justice Clarence Thomas seconded this concern:
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” … In our society, marriage is not simply a governmental institution; it is a religious institution as well…. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
Justice Samuel Alito spoke of the larger consequences of the Court’s decision:
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women … The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.… We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
Let me emphasize this last point, for it is a clear allusion to the context of Justice Alito’s exchange with the Solicitor General, which involved the Supreme Court’s affirmation of the IRS’s revocation of the tax-exempt status of Bob Jones University over its policy forbidding interracial dating. If the analogy—insisted upon by the Court’s majority—between opposition to same-sex marriage and opposition to interracial marriage holds, then the former amounts to the same sort of bigotry as the latter and, perhaps, deserves the same legal treatment.
In the Bob Jones case, the Supreme Court held that the First Amendment Free Exercise Clause does not protect the University from the IRS’s revocation of its tax exempt status. The Court’s reasoning was that, in the first place, tax exempt status is granted under the Internal Revenue Code only to institutions and organizations that “serve a public purpose” and are not “contrary to established public policy.” While the University might well serve a public purpose, augmenting or supplanting public efforts at higher education, its practice of racial discrimination was certainly contrary to established public policy. And if free exercise claims, in the best instance, require strict scrutiny, overcoming racial discrimination is surely the kind of compelling state interest that justifies an abridgement of that right.
It doesn’t require much imagination or legal expertise to see how this line of reasoning could be applied to churches and other faith-based institutions that act “contrary to established public policy” in upholding the traditional understanding of marriage.
This doesn’t mean that the IRS must or will revoke their tax exempt status, only that it can, and that the First Amendment provides no sure defense against that action. If countering discrimination based on sexual orientation comes to be regarded as a compelling state interest, then the free exercise rights of religious institutions will likely have to give way if the IRS bows to the pressure that will surely be brought to bear on it to use its powers for that end.
I think that a case can be made on behalf of continuing to extend those exemptions, both in terms of the manifold human needs all churches address and in terms of preserving the pluralism that is the essential ground of free institutions and a free people, but we have to make that case over and over again, in the face of a faction that isn’t particularly interested in listening to it. I take some solace from the fact, that, at the moment, public opinion seems to favor religious freedom, but that delicate flower needs to be carefully cultivated.
Now, if tax exemptions are a problem, then you know eligibility for government grants will be. To be sure, this isn’t an issue for houses of worship as houses of worship (which, generally speaking are not and should not be eligible for government grants), but it is one for schools and colleges, as well as for social service agencies. While the Supreme Court has frequently upheld the channeling of government aid to religious institutions under certain circumstances (see, for example, Mitchell v. Helms, Zelman v. Simmons-Harris, and the Arizona Christian School Tuition Organization case), it has also held that governments are perfectly within their rights to deny otherwise generally available aid and facilities to religious organizations (see, for example, Locke v. Davey and CLS v. Martinez).
Governments can attach any number of conditions to the aid they provide. Adoption agencies may be required to place children with couples without regard to the gender of the partners. Universities may be required to provide housing—if they provide it at all—to couples that are married in the eyes of the state, regardless of whether those marriages have the sanction of the sponsoring religious body. And if you put the recent EEOC ruling on sexual orientation together with the way in which the Department of Education is interpreting Title IX of the Education Amendments of 1972, it’s pretty easy to see how a lot of government money could be riding on conformity with what appears to be the new normal in regard to sexual orientation and marriage.
For higher education institutions, access to government money is a big deal. According to the U.S. Department of the Treasury, 55% of spending on undergraduate education in 2009-10 came from federal aid (which amounted to $124 billion that year). While there are a few colleges (Hillsdale and Grove City, for example) that take pride in not accepting a dime of federal money, most would at the moment not be able to survive without it.
Again, this doesn’t have to happen. Congress could pass legislation that protects religious freedom, or agencies could voluntarily refrain from impinging on it. But pressure will be brought to bear on behalf of those who, as they would put it, don’t want to subsidize discrimination.
This brings me to my next concern, the religious hiring rights of churches and faith-based organizations. Title VII of the 1964 Civil Rights Act permits them to take religion into account when hiring. And the “ministerial exception” based in the First Amendment—recently vindicated in the Hosanna-Tabor case—means that a number of federal laws granting employees enforceable rights cannot be applied to those a church holds out as ministers. But these provisions do not provide comprehensive protection of religious hiring rights. There is certainly a gap between the legislatively-acknowledged right to hire coreligionists and the constitutionally-grounded ministerial exception. What if someone who signs a statement of faith as a condition of employment comes out as gay and/or enters into a same-sex marriage? Unlike the Employment Non-Discrimination Act, the recent EEOC ruling about sexual orientation discrimination does not contain exceptions for religious organizations. It isn’t at all clear that Courts will find that the Free Exercise Clause will protect them from EEOC complaints, in the event that these organizations choose to enforce doctrinal or behavioral requirements on their employees.
Now, this parade of horribles does not have to march into our sanctuaries. The threats that loom on the horizon do not have to materialize. Those who currently hold the upper hand in government may practice forbearance, either out of a genuine commitment to pluralism and religious freedom or out a fear of overplaying their hand and alienating public opinion.
We on our part must be both vigilant and winsome, vigorously defending and advocating for our rights when they are threatened and offering a model of the charity and forbearance that we hope others will also display. Our society is pluralistic, reflecting deep disagreements about how we ought to live. History teaches us that faith doesn’t require hegemony to prosper. But it does require that those who have it live it, loving their neighbors as themselves. There is room both for political and legal action, and for the building and maintenance of personal relationships. If we forgo the former, there may be no room for the latter. If we focus on the former, we run the risk that those parchment barriers will be swept away by the animosity we have done nothing to disarm and dispel.
I have to confess that I wasn’t all that surprised by the Supreme Court’s decision in Obergefell v. Hodges, which held that the 14th Amendment Due Process and Equal Protection clauses imply a right to marry (due process) and require that that right be extended to those who wish to marry same-sex partners (equal protection). Justice Anthony Kennedy, who wrote for the narrow (5-4) majority, had pretty much been telegraphing his intention since Lawrence v. Texas (2003) and Romer v. Evans (1996), and indeed since co-authoring the infamous “mystery passage” in the joint opinion in Planned Parenthood v. Casey (1992). In the former two cases, he described opposition to homosexuality as expressing only an “irrational animus,” thereby placing the letters of the Apostle Paul, not to mention millennia of both secular and religious teaching from a variety of traditions, in the same category as the most hateful inarticulate screed scrawled on a bathroom wall. Indeed, in his Lawrence dissent, Justice Antonin Scalia argued that the clear implication of the majority’s reasoning was that, its protestations to the contrary notwithstanding, there was no constitutional principle that could justify restricting marriage to opposite sex couples. In Planned Parenthood, Kennedy and his co-authors laid the foundation by defining liberty in terms of what has come to be known as expressive individualism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Now, my undergraduates understand and are even capable of reproducing Justice Kennedy’s reasoning. Of course, they state it much more simply: “I should have the right to marry whomever I please.” This straightforward combination of liberty and equality—our two American watchwords—explains why so many people exuberantly welcomed the Supreme Court’s decision.
But if they had given some thought both to the understanding of marriage and the canons of legal and judicial reasoning—as we should rightly expect of Justice Kennedy and his colleagues—my undergraduates, not to say the American people in general, might have had second thoughts.
Let me begin with the second point. The 14th Amendment Due Process clause has been used to protect our liberties against certain kinds of government encroachment. While the language of the clause is procedural—and thus applies most obviously (as does its 5th Amendment counterpart) to judicial proceedings—it has long been held also to protect substantive rights, hence the almost oxymoronic term “substantive due process.” When deciding which liberties were substantively protected by this clause, the Court, in order to discipline itself so as to leave as little room as possible for free-floating judicial creativity, has held that the 14th Amendment protects only those liberties (as Chief Justice John Roberts says in his dissent, quoting a very strong precedent) that are “’objectively, deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” I repeat: if the liberty protected by the 14th Amendment is not directly tied to history or tradition, if there are not some authoritative standards to guide and control the justices, then we run the risk of liberty being whatever a majority (in this case, a “bare majority,” which is how Justice Kennedy speaks of narrow 5-4 majorities of whose conclusions he does not approve) the Court thinks or feels it is. Absent these standards, we no longer have the rule of law or settled precedent, but rather that rule of judicial majorities, giving and withholding protection as they see fit. Many people might approve of the substantive result this time, but who knows where the next such decision will take us. That Anthony Kennedy thinks he knows what history tells us about the expanding and changing definition of liberty reveals a breathtaking (and, to my mind, entirely unwarranted) confidence in his judgment.
But, you might ask, isn’t the freedom to marry rooted in our traditions? Hasn’t the Supreme Court, in a number of cases cited by Justice Kennedy, upheld that very right? Well, yes, but the right to marry rooted in our traditions is the right to traditional marriage (that is, between a man and a woman). It isn’t the right to redefine marriage so as to encompass same-sex (and perhaps other) relationships. The problem with Justice Kennedy’s opinion is that his insistence that “the nature of marriage” involves two (and only two) people derives what force it has from the traditional understanding that “the nature of marriage” involved a man and a woman. Having jettisoned the tradition on one point in the name of an alleged individual right to marry whomever one pleases, it is hard, if not impossible, consistently to preserve it on another. Indeed, his mysterious understanding of liberty—“defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—would seem to leave more than enough room for each of us to form his or her own understanding of how and under what circumstances we wish to be related to others.
Now, as Justice Thomas points out in his dissent, the traditional understanding of liberty, by giving us a claim—albeit not an absolute claim—against government interference in our lives offers some, perhaps even much, of the freedom Kennedy has in mind. There’s a lot I can do with other consenting adults in the privacy of my own home. But as Kennedy recognizes, marriage isn’t just a freedom in this sense; there are all sorts of benefits, from tax advantages to child custody arrangements that accompany it, as well as an apparently publicly ascribed “dignity” that attends marriage, as opposed to “living in sin,” as we used, quaintly, to put it. So what’s at stake is not so much a liberty protected by the Due Process clause as equal access to benefits—leaving aside the issue of dignity, which makes for problems all its own—guaranteed by the Equal Protection clause.
Unfortunately, Justice Kennedy doesn’t undertake the kind of legal analysis that usually accompanies equal protection claims. There is no talk either of a “rational basis” for a legal distinction applied to an unprotected class of people or of the “strict scrutiny” of a distinction involving a protected class. To be sure, he has denied in past cases that laws that single out gays can have even a rational basis. Perhaps he doesn’t think he has to repeat himself here, as the irrational animus is, in his view, self-evident. But however much refusing to serve a gay in a restaurant or singling out for legal sanction expressions of gay sexuality may reflect such an animus, it is not at all self-evident that adhering to the traditional definition of marriage does so.
To be sure, there are plausible and perhaps even good arguments on both sides of the marriage issue. But those are arguments to be weighed and evaluated by a legislature, not settled conclusively by a court. By short-circuiting the political process, Justice Kennedy and his colleagues in the majority have forestalled a full and fair airing of the issues and have virtually guaranteed that those on the losing judicial side will question the legitimacy of the result so many of their fellows are celebrating. Further, those who approve of the result will be tempted to regard those who disagree with them simply as sore losers who don’t deserve any respect, which will serve only to poison still more of our public square.
There are other benefits as well that we’ve lost by not working this disagreement out legislatively. A legislature with men and women of good will on both sides might have arranged for robust guarantees of religious liberty for those who conscientiously dissented from a pro-same sex marriage outcome. And rather than opening up a Pandora’s box of different marital arrangements as Justice Kennedy’s conception of liberty does, a legislature might have carefully reworked the traditional definition of marriage to accommodate in some way the genuine personal challenges Justice Kennedy so eloquently describes at the beginning of his opinion. But feeling for the aggrieved and finding a way to help them is the work of legislators, responsible to the voters, not judges who serve for life.
That we have operationally and happily ceded so much truly legislative authority to unelected judges is, to my mind, the most troubling result of Obergefell. In my next post, I will discuss some of the religious liberty challenges that we will, in short order, face.
 Justice Kennedy was similarly disingenuous in Windsor v. U.S. (2013), which struck down the portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman. Marriage, he averred, was traditionally understood to be a state matter, which was convenient at the moment, but swept away with nary a mention in Obergefell.
Last summer, the Obama Administration proposed a rule adding sexual orientation and gender identity (SOGI—get used to the acronym) to the list of classes protected against discrimination by federal contractors. In so doing, it built upon other anti-discrimination executive orders issued by Presidents Johnson and Nixon. The difference between the Obama Administration’s rule and those promulgated by its predecessors is that the latter explicitly provided exemptions for religious employers, who were permitted to engage in mission-sensitive hiring even if they provided goods and services to the federal government. Under the old rules, a faith-based organization could hire co-religionists to work, for example, in a federally-funded Welfare-to-Work program (and, of course, could quite rightly not discriminate in providing benefits to clients). Under the new rules, finalized in April, there is no exemption for faith-based organizations, many of whom would seem to have to abandon their historical commitments to sexual fidelity in the context of man-woman marriage if they wish to continue to be eligible for federal contracts.
And now the other (or another, perhaps the first of many) shoe is about to drop: there is word that the rule applied to federal contractors will soon be extended to grant recipients, at least in respect to one area of federal activity, humanitarian aid. As this move has not received a lot of attention (perhaps designedly so), it is not clear how far-reaching this change is. At the moment, it seems relatively safe to say that eligibility for some grants will likely be conditioned on a renunciation of traditional religious teaching (not just Christian, but also Jewish and Muslim) regarding human sexuality.
What prevents the Obama Administration from extending this requirement to additional categories of grant recipients is not at all clear. Or rather it is clear: only pushback from the friends of religious freedom will prevent the federal government from eventually conditioning all federal aid on “non-discrimination,” even at the expense of fidelity to traditional religious teaching.
How far could this eventually go? Consider, for example, the extraordinarily heavy dependence of most colleges and universities (there are a few noteworthy exceptions, among them Grove City, Hillsdale, and Wyoming Catholic) on federal aid. Suppose that colleges and universities that included behavioral expectations in their statements of faith were told that they could not hold their employees to these expectations, as doing so would constitute SOGI-based discrimination. Some might stand firm and join the proud ranks of the non-federally funded. Others, I fear, would feel compelled to assure their (merely) institutional survival by giving in. The result would likely be a much less genuinely diverse array of higher education options and a loss of a great intellectual and moral source of religious life in this country.
And that’s not the end of it. Don’t forget the brief exchange between Justice Samuel Alito and Solicitor General Donald Verrilli in the oral argument for the Obergefell v. Hodges (same-sex marriage) case. Under questioning by Justice Alito, Verrilli conceded that the tax-exempt status of religious institutions that did not recognize same-sex marriage could or would be an issue. For those who regard tax exempt status not as an acknowledgement of freedom from state interference but as an instrument of public policy, aimed at promoting the public good (as they conceive it), it’s only a few baby steps from denying government funding to revoking a tax exemption. I’d like to think that many of us will continue to give at the same level to the charities we favor regardless of whether we receive a tax break for doing so, but not all of us will. At the very least, roughly 30% of that charitable contribution would likely be taken by taxes, and that’s only from the contributor. Another chunk would be taken from the formerly tax-exempt institution. Is your favorite faith-based institution prepared to deal with the loss of a significant portion of its annual budget?
Some might argue that it’s healthy and bracing for faith-based institutions to get back to basics, to have a fresh and direct experience of what it means to be a pilgrim, sojourner, or (as Duke University theologian Stanley Hauerwas is fond of putting it) resident alien. Perhaps. Even more, it might be clarifying for the soulless Leviathan of the ever-expanding modern regulatory and administrative state that would reveal itself for the secularizing monster it really is. Perhaps.
But pardon me for continuing to harbor the hope that genuine religious pluralism that flourishes in a healthy civil society is good not only for the churches, synagogues, mosques, temples, schools, colleges, universities, and charities that inhabit it, but also for the country that plays host to them.
That is what is threatened by the Obama Administration’s narrow and crabbed vision of, if not actual disrespect for, religious liberty. We face the prospect of a secular (which is not the same as neutral) state whose reach into our lives and communities is constantly expanding, not as a partner with distinctive and diverse local institutions and organizations, but as their master, dictating the terms on which they will serve the needs of those who use and depend upon them. The genuinely distinctive—religiously and morally traditional—institutions will be treated, not as partners, but as adversaries, at best pushed to the margins, at worst run out of business.
I hope and expect all institutions will love and serve all of God’s children, but will defend their right to do so in ways that are faithful to their understanding of Scripture.
I recently attended a conference that included a number of participants who have thought deeply about religious freedom and have acted effectively in its defense. Naturally, everyone was talking about the high-profile legislative battle in Indiana. That got me thinking about what might and should happen in Georgia, during next year’s legislative session, when protecting religious freedom will once again be on the table.
In the unlikely event that you’ve forgotten, here’s what a typical religious freedom bill—modeled on the 1993 federal legislation that Congress passed virtually unanimously—purports to do. In the first instance, it reestablishes a standard the Supreme Court employed to deal with a number of cases under the First Amendment: if a plaintiff can show that his or her religious freedom is substantially burdened by a generally applicable law, then the government has to demonstrate that the law is intended to carry out a compelling state interest and show that it is the least restrictive means to achieve that interest. Contrary to what its opponents claimed, the law does not give anyone a license to discriminate on the basis of religion; rather, it reinstates a time-honored judicial balancing test. Judges decide whether religious freedom—our “first freedom”—or the state interest prevails. No responsible advocate of religious freedom thinks that it ought to prevail against every possible countervailing claim, that every state interest ought to give way before it. We simply insist that religious freedom is an important consideration that ought to be taken into account.
The substance of the law
In the light of what happened in Indiana, Arkansas, and here in Georgia, it seems highly unlikely that any state legislature will pass a simple and straightforward version of the 1993 federal legislation. Opponents were all too effective in tying religious freedom to discrimination, even in the absence of any evidence that the federal law or its many state counterparts had ever effectively been used to license or justify discrimination. Unfortunately, the “fix” that lawmakers adopted to respond to these objections tends to sweep much too widely, making state and local anti-discrimination rules in effect trumps against any religious freedom claim. While certainly a permissible (if, I would argue, inadvisable) declaration of a compelling state interest, it appears to leave no room for certain sorts of religious freedom claims. Thus, for example, a church or other faith-based organization might wish to engage in mission-based hiring, employing only those willing to live up to certain creedal or behavioral standards. These religious hiring rights have long been acknowledged or accommodated in law, but could be described as “discrimination” by those unsympathetic to the standards or practices at issue. Without explicit provision for them in the law, these traditional religious hiring rights could be deprived any any sort of religious freedom defense.
Then there is, of course, the wedding industry, where some practitioners have absolutely no objection to serving gays in ordinary circumstances, but cannot in good conscience provide their services to a same-sex wedding ceremony. Their critics treat their services as public accommodations, akin to restaurants and hotels, and insist that there is absolutely no difference between the photographer who is happy to do a portrait of any individual or family, but not of any wedding ceremony, and the racist hotelier or restaurateur who refuses to serve African-Americans under any circumstances. In the first instance, this argument stretches the notion of public accommodation far beyond its traditional bounds. Furthermore, while the experience of African-Americans in the Jim Crow South certainly made it clear that the traditional right of a businessperson to serve whomever he or she pleases (an aspect of freedom of association) has to give way to the norm of non-discrimination in matters of race, it is far from clear that gays who seek wedding services are similarly seriously discommoded by the few bakers, photographers, or wedding planners who have religious scruples about same-sex marriage. Common sense tells you that there is a difference between being unable to find a place to stay or eat, or having to go around the corner or to the next town to find a wedding photographer. What’s more, many wedding-related businesses are, to say the least, “closely-held.” That means that exempting them from anti-discrimination laws in this limited instance—not, to repeat, in ordinary circumstances—rests on the solid constitutional ground of the recent Supreme Court decision in the Hobby Lobby case; the Court there held that family businesses, at least, enjoyed the protection of the First Amendment and the federal RFRA. Finally, at the very least both baking and photography can be treated as arts, hence as forms of expression. It has long been the understanding that the First Amendment prohibits government (or individuals using governmental authority) from compelling people to say what is not on their minds.
There is, in other words, a reasonably strong argument that the “fix” proposed in Georgia trenches on traditional freedoms of religion, association, and expression. While no one would argue that these freedoms are or should be absolute, they should not be casually or thoughtlessly trampled in an effort to conciliate the demands of one intense constituency. I leave it to the legislative drafters to find language that affirms both compelling norms—religious freedom and non-discrimination—and finds a way to combine them coherently. Surely we are not so unreasonable and inept that we cannot come up with language that accommodates religious liberty and assures gays and lesbians that they will neither be denied service in ordinary circumstances nor be too inconvenienced In their search for wedding services. (Indeed, there are “conscience clauses” from the medical field that may offer a good model here: those who have conscientious objections to, say, abortion, can be excused from participating in a medically necessary abortion, so long as someone else stands ready to help with the procedure.)
Making the case for a reasonable religious freedom law
This year, I think advocates of religious freedom legislation were taken somewhat by surprise by the scope and character of the opposition to them. Since religious freedom had almost always been an “apple pie” issue, they may have thought that, especially in a state that is generally both conservative and religious, opposition would be either nominal or relatively easily overcome. They didn’t reckon on the vociferousness of those who frequently misrepresented the proposal, on the almost complicitous supineness (or was it alacrity?) with which the media gave them a megaphone, and on the unwillingness of the business community to protect religious liberty, not to mention the enterprises and livelihoods of their much smaller brethren. Next year promises to be worse, not only because opponents of religious freedom legislation will be emboldened by their success this year, but because it is very likely that a narrowly-divided Supreme Court will hand down a decision finding a constitutional right to same-sex marriage, raising passions even higher.
Proponents of religious freedom can’t afford merely to be reactive. We have to start right away to lay the groundwork for success in next year’s legislative session. That means making a winsome case in public for the necessity of such legislation, not simply to protect those who conscientiously dissent from same-sex marriage, but also all those—especially members of minority religions—who in carrying out their religious duties find themselves on the wrong side of an otherwise neutral law. Those in the media who cover this issue must also be educated, again in a setting where the stakes are not high and they can feel free to ask questions and engage in the give-and-take of a conversation. That also means sitting down with legislators when things are relatively calm and patiently explaining the importance of religious freedom and the nuts and bolts of protecting it. Finally, that means putting business leaders on notice that if they criticize religious freedom legislation as unwelcoming in our state, they will be pointedly asked about the business they do in countries all over the world that do not respect human rights, let alone the rights of gays and lesbians.
Once the session begins, proponents of religious freedom legislation have to be prepared immediately to answer distortions of the bill’s provisions and purpose. They also have to be prepared to call out zealots on their side, demanding the same responsible behavior of their opponents.
I remain confident that a bill can and will pass, but it is unlikely to be a cakewalk. The arguments are on our side, but critics of the legislation command the high ground in the media.
The future of religious freedom
Abraham Lincoln once said, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions.” Laws can be enacted, and then repealed. Even constitutional provisions can be repealed or reinterpreted. We cannot rest content that by the enactment of a law, we have genuinely and for the long term protected religious freedom.
More important than any law is “the culture,” by which I mean not only the arts, media, and education, but also the complex web of organizations and relationship that constitute “civil society” and the deeper sources in history and principle for public opinion. If these institutions, understandings, and “habits of the heart” do not support religious freedom, then no law purporting to protect it will stand for long.
Our long-term task is thus one of cultural restoration and reconstruction, in which politics plays only a small part. To be sure, laws and political controversies can offer so-called “teachable moments,” when lots of people are paying attention, but most of the teaching will be done in other, often more intimate and less fraught settings, like schools, churches, families, neighborhoods, and workplace relationships. And most of the teaching will not, strictly speaking, be about religious liberty.
Some have suggested that cultural and religious conservatives should be prepared for a “Benedict option,” a time of withdrawal from “the world” in order insularly to protect themselves, their families and communities, and their understanding from an inveterately hostile culture. I’m not yet prepared to urge my fellows down that path. I have more confidence that truth and nature will assert or reassert themselves. (I could make such an argument using the language of Christian theology, but would prefer in this venue not to talk about creation, evil, and God’s sovereignty.)
What we have to do is be attentive to building healthy families and communities, to be vigilant about telling the truth about ourselves and our relationships, to be open to respectful engagement with those who disagree with us, and to tell and promote stories in art, film, music, and literature that teach moral truths without being overtly “preachy.” Great art and great literature command the attention of those who encounter them. They nourish our minds and our souls. They provide the bases for fruitful conversations and friendships, even among those who happen at the moment to disagree.
This isn’t a “quick fix,” but rather the work of many lifetimes. We didn’t lose our way overnight. We won’t find our way back tomorrow.
Image Credit: https://humanitiesusa.wordpress.com/2011/05/15/norman-rockwell-freedom-of-speech-the-saturday-evening-post-c-1943/
We are happy to provide you with this update on some of the bills that GCO is following this session. Should you have any questions or comments, please email Eric Cochling.
House Bill 243 – Education Savings Accounts – sponsored by Rep. Mark Hamilton, R-Cumming
The ESA Bill (HB 243) did not make it onto the House floor for a vote before the end of Crossover Day. What that means, practically speaking, is that the bill is likely dead for the session.
Because Georgia runs on a biennial cycle, bills that made progress this year will pick up where they left off starting in the 2016 legislative session. This means that we are in a good position for January 2016 since we have a bill that has been vetted and has made significant progress in the House. We also feel confident that, given the broad and bipartisan support for the bill within the general assembly and overwhelming support among Georgia voters, our chances for passing the bill next session are excellent.
While this is disappointing news, we encourage you to continue to speak about the importance of educational choice (and ESAs specifically) with your legislators throughout the year! If you don’t know who your legislators are, find them here.
To learn more about ESAs and to support Rep. Hamilton and Sen. Hunter Hill, who is sponsoring similar legislation in the state senate, visit www.georgiaopportunity.org/go/esa.
Senate Bill 133 and Senate Resolution 287 – Opportunity School Districts (OSD) – carried by Senator Butch Miller
The governor’s signature legislation is moving forward despite unexpected opposition and difficulty. Senate Bill 133 provides the nuts and bolts of how the OSD would operate, while Senate Resolution 287 allows voters to decide in 2016 whether they are willing to entrust new powers to the governor’s appointed OSD superintendent to take over failing schools. Each passed with the requisite constitutional majority, 108-53 and 121-47, respectively.
Senate Resolution 287 will ask voters:
“Shall the Constitution of Georgia be amended to allow the state to intervene in chronically failing public schools in order to improve student performance?”
There was lots of fiery rhetoric throughout the committee hearings and on the House floor both for and against the resolution. Opponents argue that the bill would allow for power to be taken away from local school boards and placed in the hands of a centralized bureaucracy. Supporters maintain that decision‑making power in an OSD is decentralized away from the local school board bureaucracy, and transferred to individual school principals, teachers, and, often, charter school boards.
In other words, both sides argue that they support local control.
At first glance it is difficult to see how a state takeover could lead to more local involvement, but with New Orleans as an example, we can now imagine a way for government to create the space and, importantly, the pressure needed for local communities and institutions to address problems plaguing our most chronically failing schools.
House Bill 440 – Business and Education Succeeding Together (BEST) – sponsored by Rep. Mike Glanton, D- Jonesboro
In February, Rep. Mike Glanton (D) introduced a bill that would create a separate corporate-only tax credit program (Business and Education Succeeding Together, or BEST) that would provide $12 million in scholarship funding. The program is separate from the current tax credit scholarship program and has many of the accountable provisions that the current program lacks. While the bill has not made much progress this session, we believe it will be seriously considered next session as an additional way to continue expanding opportunities for students and families in the state.
Senate Bill 129 – Religious Freedom Restoration Act – Sponsored by Rep. Josh McKoon – R – Columbus
SB 129, the religious liberty bill, was “tabled” by the House Judiciary Committee, because of an amendment that would have effectively gutted the bill of its purpose.
The so-called “non-discrimination” clause introduced by state Rep. Mike Jacobs, R-Brookhaven, “completely undercut the purpose of the bill,” McKoon said. Supporters of the bill felt that adding this clause, which the majority of the thirty plus state RFRA’s and the federal RFRA do not have, would effectively leave religious liberty worse off in the state of Georgia. For example, adding a non-discrimination clause could prevent private religious schools from discriminating based on religious belief when hiring staff.
SB 129 became part of a larger culture war, and its failure – tabling the bill makes it very unlikely that it will reach a House floor vote before the end of the session – was due in large part to the fear of “perception” rather than the reality of the purpose or language of the bill. The ongoing struggle over Indiana’s new law is certainly not encouraging lawmakers here to act.
Read additional commentary on the RFRA legislation on our website.
For the case in favor of Georgia’s legislation, read what these fourteen law professors had to say.
Senate Bill 8 and Senate Resolution 7 – Safe Harbor/Rachel’s Law Act – sponsored by Sen. Renee Unterman, R-Buford
Georgia legislators, led by Sen. Renee Unterman, R-Buford, are seeking to tighten Georgia’s existing sex trafficking laws. The combination of Senate Bill 8 and Senate Resolution 7 would help create a new Safe Harbor for Sexually Exploited Children Fund, using new $2,500 fines on convicted traffickers and an annual $5,000 fee on adult entertainment establishments to raise money for the fund. SB 8 sets out the framework of the proposal while SR 7 seeks amendment to the Georgia Constitution by asking Georgians for permission to create the new fund. A governor-appointed commission would manage this fund and the effort.
This money would then be used to pay for physical and mental health care, housing, education, job training, child care, legal help and other services for sexually exploited victims. In addition to the new fines, the Bill would require convicted traffickers be listed on the state sex offender registry – something which surprisingly doesn’t happen now.
Legislators are working together to merge Unterman’s version of the proposal with a similar House version, HB 244, with hopes to assure final passage. The Bill passed through the Senate on a 52-3 vote, and is now working its way through the House Committee for Juvenile Justice.
UPDATE: Both of these bills were voted on Tuesday, March 31st, and passed 150-22 and 151-18, respectfully.
Senate Resolution 80 – Demand Revision of College Board of AP U.S. History – Sponsored by Sen. William Ligon Jr., R-Brunswick
This resolution demands revision by the College Board of Advanced Placement U.S. History. Since approximately 14,000 Georgia students take the College Board’s Advanced Placement U. S. History course each year, the General Assembly is right to be concerned that the new framework “reflects a radically revisionist view of American history that emphasizes negative aspects of our nation’s history while omitting or minimizing positive aspects,” presenting, “a biased and inaccurate view of many important themes and events in American history, including the motivations and actions of seventeenth to nineteenth century settlers, the nature of the American free enterprise system, the course and resolution of the Great Depression, and the development of and victory in the Cold War.” Though the college board denies any political intent, the course content does seem to have a strong bias that focuses on negative aspects of American history, while not presenting much on America’s positive role in the world.
Those in favor of Senate Resolution 80 hope that by acknowledging this problem, other companies might form to challenge the bias of the College Board’s monopoly on Advanced Placement courses for high school students.
UPDATE: This bill, in substitute form, was voted out of the senate prior to crossover day and awaits action by the house.
House Bill 677 and House Resolution 807 – Allowing Casino Gambling in Georgia – sponsored by Rep. Ron Stephens, R-Savannah
For the last several years, some form of gambling has been proposed by various legislators under the guise of saving the HOPE Scholarship. This years’ effort is being sponsored, in part, by Rep. Ron Stephens. House Resolution 807 would place a constitutional amendment on the 2016 ballot that would empower the state to license casinos (which is currently prohibited by the Georgia Constitution), while House Bill 677 is a 127-page bill that describes in detail how the new gambling marketplace in Georgia would operate. These bills, like those in previous years, are being promoted on the basis of the jobs casinos could create, along with the revenue promised to the HOPE Scholarship program. Missing from the analysis is any reference to the problems associated with casinos – including increased levels of addiction and negative economic effects.
House Bill 1 – Haleigh’s Hope Act – sponsored by Rep. Allen Peake, R- Macon
Last Friday, Gov. Nathan Deal signed an executive order directing state agencies to prepare for the enactment of House Bill 1 which authorizes the limited use of cannabis oil to treat eight specific disorders that include cancer, Lou Gehrig’s disease, Crohn’s disease, mitochondrial disease, multiple sclerosis, Parkinson’s disease, sickle cell disease, and seizure disorders as long as a physician prescribes the medication. The bill also allows for clinical trials to further study how the drug works.
House Bill 439 – Georgia New Markets Jobs Act – sponsored by Rep. Jason Shaw, R- Lakeland
In 2000 the U.S. Congress created the federal New Markets Tax Credit as an effort to stimulate private investment within poor urban and rural areas. Since 2000 a handful of states followed with their own versions of the law. House Bill 439, Georgia New Markets Jobs Act is another such effort.
According to the New Markets Tax Credit Coalition, the tax credits, “stimulate private investment and economic growth in low income urban neighborhoods and rural communities that lack access to the patient capital needed to support and grow businesses, create jobs, and sustain healthy local economies.”
House Bill 439 would allow for millions of dollars in private investment toward projects and communities that likely would never have received such injections of patient capital otherwise – stimulating economic growth in low-income neighborhoods. In other states this tax credit has been used to finance everything from health care centers to charter schools, groceries in food deserts, community centers, domestic violence shelters, factories and small business loan funds in distressed urban, suburban and rural communities.
HB 439 passed through the Senate last Friday 41-9. Though HB 439 differs from the federal New Markets Tax Credit, this bi-partisan sponsored bill represents innovative policy that seeks to remove barriers to opportunity.
Senate Bill 3 – Supporting and Strengthening Families Act – sponsored by Senator Renee Unterman
This bill would allow parents experiencing “short-term difficulties that impair their ability to perform the regular and expected functions to provide care and support to their minor children” a way to confer the authority to act as a temporary guardian on behalf of their children without the trouble, time, and expense of a court proceeding. The intent behind this piece of legislation is to provide a “statutory mechanism” that helps preserve family stability.
This bill passed through the Senate 43-10 and is now in the hands of the House Judiciary Committee.
Tomorrow (April 2, 2015) is Sine Die – the last day of the 2015 Legislative Session.
These are the house and senate reports on activity in each chamber.
– House Daily Report (daily)
– Senate Daily Report (weekly)
Use Our Website to Follow Important Legislation and Contact Your Elected Representatives
Visit our Take Action page to see all of the bills we’re tracking this session, to take specific actions on bills we support or oppose, and find out how to contact your elected representatives.