On March 8th it was reported that Republicans in Colorado will be proposing legislation to provide additional protections for the exercise of religious liberty. Arizona and Arkansas had measures to provide additional protection for citizens expressing their religious beliefs but the measures did not make it through the legislative process. Now other states are in the process of proposing or weighing similar measures. Why are state governments being pressured to provide protections for religious liberty beyond those provided in the 1st Amendment?
The L.G.B.T. movement is the main thing, the primary thing that’s going to be challenging religious liberties and the freedom to live out religious convictions,” said State Senator Joseph Silk, an Oklahoma Republican and the sponsor of a bill in that state. “And I say that sensitively, because I have homosexual friends.
In Georgia, S.B. 129 “Georgia Religious Freedom Restoration Act” is making it’s journey through the State Legislature amid an outcry from critics who say it will allow everything from businesses refusing services to members of the gay community to the Klu Klux Klan being able to ride again. S.B. 129 is nearly a replica of the Federal Religious Freedom Restoration Act of 1993. Following the passage of the Act in 1993 by a bi-partisan Congress under President Clinton, court decisions found it did not apply at the State level. The Georgia bill inserts the word “state” to clarify that citizens have the same claim to religious liberty at the State level that they do at the Federal level.
Nowhere in the wording of the U.S. or Georgia bill does it excuse discrimination against any member of a protected class under laws regarding equal treatment. Instead, it requires that the State must have a “compelling interest” in order to require a citizen to subvert their 1st Amendment right to freedom of religion. If the law is passed “compelling interest” will of course be defined by the courts and precedent set as people attempt to exercise their rights under the law.
The Federal law has been in existence since 1993. The most notable case in which rights under this law have been asserted are in Burwell v. Hobby Lobby. In August of 2014 the majority opinion of the Supreme Court relieved Hobby Lobby and other closely held private companies of having to provide certain categories of contraception required by the Affordable Care Act. This decision caused a firestorm of criticism from radical feminists and the LBGT community as an affront to the rights of women. Their assessment of the decision protecting corporations was a Progressive ploy as the decision actually protected the owners of privately held corporations who are in fact, people. The actual fears were of the potential implications of that decision. If the owner of a privately held business had the right to conduct operations in alignment with their religious values and beliefs, what recourse would social justice warriors have at the Federal level to coerce or punish those with different or more traditional values based on their religious faith?
The answer is to that question is why the LBGT community has invested so much energy and funding to defeat Georgia’s proposed the law. Georgia Equality, a group devoted to advancing the rights of the gay community, paid Michael Bowers, the former Georgia Attorney General to provide an analysis of S.B. 129 and another piece of legislation that was eventually withdrawn in favor of 129. The resultant analysis was a high profile hit piece that asserted the proposed legislation would allow the resurgence of the KKK and a potential rise in child abuse among other egregious items. This was an interesting perspective from a former state official who upheld anti-sodomy legislation and denied employment to a lesbian job applicant successfully. The irony has been widely noted following the report being published and it has been speculated that Bowers was hired for his influence and connections, not his passion for the LBGT agenda.
Does the State have a compelling interest to ensure that children are not abused in the name of religious liberty? In a civilized society, which Georgia is, the answer would be presumed to be yes. The KKK has generally used the 1st Amendment right to free speech to win the right to assemble and rally. Their message is to be abhorred, but their right to free speech no matter how offensive is protected by the Constitution. The horrific sins of past discrimination based on race that occurred under Jim Crow are not rearing their ugly head in the Georgia of today on a wave of public support, nor do I know of any widely recognized religious affiliation that calls for discrimination based on the same. These lightning rod issues have been raised to sway public opinion and create an environment of fear.
Does the State have a vested interest in ensuring members of the gay community have access to a wide array of services, fair treatment in housing, employment and emergency services? In Georgia with it’s vibrant and sizable gay population in Atlanta, the answer again should be presumed to be yes. Is the State ressponsible to ensure that gay couples have the ability to marry in civil and private religious ceremonies and be recognized under the law if the Supreme Court outlaws it’s ban on gay marriage? The answer is of course yes. The more immediate question to be answered is does the State have a compelling interest in assuring that service provider “A” bake a cake, make a bouquet or host a banquet if the religious beliefs of the owner prohibit them from participating in that ceremony be they Christian or Muslim? Given the decision of the Supreme Court in Burwell v. Hobby Lobby and the alternatives available in the marketplace, maybe not.
In notable cases in Colorado, Idaho, Oregon and other states small business owners such as wedding chapels, bakeries and florists have been sued under state and local anti-discrimination statutes for refusing to provide their services to homosexual couples wanting to marry. The question for the LBGT community and their primary motivation in opposing this legislation, is whether or not they will still be able to use the state courts and civil rights offices as a bludgeon to punish those small business owners who do not want to participate in their ceremony based their personal religious beliefs. Without the protection of the 1993 Federal Law these cases have resulted in large fines and reporting burdens for those who dare to assert religious beliefs as the basis for non-participation.
Is preserving the LBGT movement’s ability to punish the segment of the population whose beliefs differ from their own a sufficient reason to deny Georgians the same protections for religious liberty found at the Federal level? The answer is no. Is it possible the coercive behavior of the LBGT community in the use of state and local agencies to shame and potentially bankrupt some small business owners the reason you are seeing S.B 129 and similar legislation being proposed nation wide? A distinct possibility.