I used to admire and respect Michael Bowers, Georgia’s Attorney General from 1981 to 1997, but his recent intervention in the debate over the religious freedom bills ought to embarrass him. To be sure, losing my respect won’t cost him any sleep and the mainstream media will only celebrate his move from what it regards as the wrong side of history to the right side. Still, he ought to be embarrassed because the letter he wrote against the House and Senate versions of the bill is a regrettable, albeit entirely predictable, combination of hysteria and inconsistency.
Let’s start with the hysteria. The law, he says, will provide people with an excuse for practicing invidious discrimination and enable every person to justify on the basis of religion becoming a law unto himself or herself. And as if this weren’t bad enough, Bowers invokes the spectre of the KKK returning fully garbed in hoods, a practice he alleges might well be protected by the proposed Georgia legislation.
Well, no, no, and a thousand times no.
In the first place, Bowers doesn’t actually argue that the law permits invidious discrimination; he merely asserts the following:
The proposed RFRA is nothing more than an effort to legalize discrimination against disfavored groups, requiring only the discriminating party’s assertion of a burden on his or her…purported religious belief.
I’ll explain shortly why this is an extremely misleading “explanation” of what the bill will do, but, for now, I’ll restrict myself to recounting how he reaches this conclusion. It’s all, he says, in the timing. If the Georgia legislature had taken seriously the threat to religious liberty that came from the Supreme Court’s decision in Employment Division v. Smith, why did it wait more than twenty years to do so? The answer can only be “same sex marriage.” Religious liberty is simply the fig leaf behind which those who want to deny gays and lesbians marriage equality (not to mention other sorts of equality) are going to try to hide.
I agree that timing is an issue, but not in the way Bowers insists. There is a new sense of urgency, not about protecting people’s “right” to discriminate, but rather about protecting traditional religious belief and practice from aggressive attempts to use state and judicial power to force people to conform to the new order. Some of these threats were, well, not quite unimaginable but barely on the horizon as recently as just a few years ago. Remember pro-life Michigan Democratic Congressman Bart Stupak, who supported the Affordable Care Act in exchange for an executive order reaffirming that no federal funds would pay for abortions? Just a few years later, the contraception mandate enforced by the U.S. Department of Health and Human Services violated that promise, according to a rueful Stupak. Student religious organizations have effectively been run off college campuses (not everywhere, to be sure) because they require that their officers actually share the principles of the organization. And yes, businesspeople who in other instances have been quite happy to serve their gay and lesbian customers have sought to draw the line at providing services to same-sex wedding ceremonies they don’t and can’t conscientiously support. Traditional religious believers can be excused for feeling more than a bit threatened by all these developments and thinking that more robust religious liberty protection is required.
Let me turn now to the “law unto himself or herself” canard. Here’s Bowers’ best explanation of this claim (oddly in the section of the letter supposedly devoted to his contention about invidious discrimination):
Any time a person wished to refuse to act in response to a government requirement, he or she could assert the protection of the proposed RFRA. Whether legitimate or not, a controversy would likely ensue involving law enforcement officials, school officials, hospital administrators, or other government officers, and possibly the courts. The potential undermining of the rule of law is limitless.
It seems to me that this contention proves too much, as anyone could make the same claim about the First Amendment and the Fourteenth Amendment due process clause. Does Bowers want to throw those out too, as they certainly can serve as bases for an individual refusing “to act in response to a government requirement”? The point that Bowers doesn’t ever really concede directly is that a RFRA claim isn’t an automatic trump against government action or regulation; it merely demands that government articulate a compelling state interest and that the measure proposed be the least restrictive means to achieve that interest. These questions are for a judge to decide, and the individual resisting the law or regulation may not win. The interest could indeed be compelling, as I assume prohibiting genuinely invidious discrimination might be, and the means chosen could be the least restrictive possible. The RFRA merely offers religious believers a recourse in the event that the proverbial tyrannical majority (about which James Madison worried in Federalist #10) decides that the shortest route between two points is a straight line through religious freedom. Indeed, by assuring that the law in the largest sense protects the rights government is “ordained and established” (the words of the Declaration of Independence) to protect, a RFRA actually serves to maintain public confidence in the rule of law.
And then there are the hooded knights of the KKK, which amounts to pure fear-mongering on Bowers’ behalf, something that ought to have been entirely unworthy of a former Attorney General. Given Georgia’s history, if anything is a compelling state interest, it’s keeping the KKK from hiding behind hoods as it spews its hatred.
And again—it bears repeating, since Bowers so frequently encourages misunderstanding—whether a RFRA claim stands depends not upon the individual asserting it, but upon the judge hearing the case. Of course, Bowers has to acknowledge this point, but he attempts to deprive it of its force by making what judges will do seem altogether unpredictable:
It is impossible to anticipate whether Georgia courts would follow the lead of the Eleventh Circuit and interpret the RFRA as co-extensive with First Amendment jurisprudence or whether the courts would treat RFRA as ushering in a new era of religious freedom jurisprudence that strikes down neutral laws of general applicability based on an alleged burden on the exercise of religion.
All he has is this uncertainty about what courts will do. He has to concede that other courts—state and federal—have most emphatically not permitted the parade of horribles with which he has regaled us in the letter. Indeed, one of the best reviews of our state and federal RFRA experience suggests that we have little or nothing to worry about and, indeed, much to which to look forward.
Let me conclude by offering one note of agreement with Bowers’ argument. I also worry about what judges might do, especially where religious freedom is concerned. I don’t want what some have called our first freedom to depend upon what might be the whim of a magistrate. To be sure, I try to have as high an opinion as possible of our state and federal judges, but have to confess that I have been disappointed more than a few times by their decisions and the quality of the reasoning in support of them. I wish it hadn’t come to this. I wish that popular and legislative majorities were always respectful and solicitous of the rights of those who seem to stand in their way. I wish that righteous and self-righteous indignation didn’t all too often get the better of us. I wish that we were more frequently visited by “the better angels of our nature,” as Abraham Lincoln so eloquently put it in his First Inaugural. I pray for all of this, but I’m also going to urge my representatives to vote for these pieces of legislation.
Dr. Joseph M. Knipperberg is a contributing scholar at the Georgia Center for Opportunity and Professor of Politics at Oglethorpe University.
Opinions expressed are those of the author and do not necessarily represent the opinions of Georgia Center for Opportunity.
