Proposed Religious Freedom Legislation Doesn’t Survive Crossover


In 1990, the Supreme Court ruled in the case of Employment Division v. Smith to uphold a ban on the use of peyote under Oregon law, despite the fact that the law prevented the use of peyote in religious ceremonies of certain Indian tribes. Prior to the Smith case, the Court had regularly ruled that the government could only infringe upon one’s free exercise of religion – including practices like those in Smith – if there was a compelling state interest, a standard that offered the most protection possible to religious liberty under the Court’s jurisprudence.

In the majority opinion authored by Justice Scalia, the Court found in Smith that that the use of the “compelling state interest” test would result in an absurd result, essentially meaning that each person’s religious practices could immunize them from following otherwise settled law. Following Smith, the standard of review was seemingly lowered, which gave the government more leeway to regulate religious expression.

Realizing the implications of the Smith decision, a bipartisan coalition of congressmen developed the federal Religious Freedom Restoration Act (RFRA), which was passed by Congress and signed into law by President Clinton in 1997. This bill had many prominent supporters, including the current Vice-President, Joe Biden. The federal RFRA re-instated the compelling state interest test in free exercise cases by classifying religious expression as a category protected under a court’s “strict scrutiny” analysis of any allegedly infringing law. However, the US Supreme Court later ruled that the federal RFRA only applied to the federal government, which resulted in many states passing RFRA-like bills to insure religious liberty protections applied to state laws. Currently, there are many states with RFRAs on the books and many states where court rulings have created similar protections.

The Georgia Legislation:

Rep. Teasley presented HB 1023 before the Fleming Subcommittee of the House Judiciary (Civil), stating that he was bringing this bill for consideration following Employment Division v. Smith. As he described his reasons for bringing the bill, Rep. Teasley gave much of the background that can be found above.

According to Rep. Teasley, this bill provides that there must be a “compelling state interest” for a state to burden the free exercise of religion. A supporter of the bill in his testimony commented that the Smith case removed “strict scrutiny” as the standard for protecting religious expression. In essence, Rep. Teasley’s bill reapplies the strict scrutiny test to cases concerning religion, which is the same way that the federal RFRA operates.

Similarly, Sen. McKoon’s bill, SB 377, applies a “rigorous compelling interests” test to cases involving infringement upon the free exercise of religion. Sen. McKoon noted that he believes that this bill will help cut down on lawsuits against the government while helping protect the rights of religious people.

Concerns With HB 1023/SB 377:

One of the biggest concerns noted in committee testimony concerned civil rights. Many objectors to the bill questioned whether or not the bill allowed for, essentially, a religious exemption to having to abide by civil rights legislation. Supporters of the bill referenced the US Supreme Court decision in Bob Jones University v. United States, in which the same test that is supported by these two RFRA-like bills—the “compelling state interests” test—denied Bob Jones University its classification as a non-profit entity because of its ban on interracial dating and violations of civil rights.

Another concern raised about the bill is its protection of non-traditional religions, like Rastafarianism. Supporters claim that only those religious practices which the state has a compelling state interest to stop (and the law is narrowly tailored to accomplish its legitimate ends) can be infringed upon. In layman’s terms, this means that these two bills—HB 1023 and SB 377—will protect a variety of religious expression, including many varieties with which the people passing the bill do not agree. Indeed, in a point of personal privilege on the senate floor on Wednesday, Sen. McKoon commented, “This bill protects many expressions of religion with which I would disagree.” He then commented that he believes that this fact further testifies to the importance and likely effectiveness of the legislation.

The LGBTQ community has also raised concerns with the bill, claiming that it will further blur the distinction between religious and non-religious discrimination. Rep. Simone Bell gave a very personal testimony against the bill in the Fleming Subcommittee, drawing on her experience as a member of the LGBTQ community and the discrimination she has experienced. While she noted that she is in support of religious freedom, Rep. Bell made it very clear that she wants to protect against further discrimination and does not support the bill as it is currently written. Supporters of the bill have responded to this claim much in the same way that they have concerning the question of civil rights, noting that religious adherents  – who include bakers, photographers, florists, and others – have faced fines for not providing services for same-sex wedding and commitment ceremonies to which they had religious objections. In essence, supporters assert, religious adherents are being forced to violate their own consciences by becoming participants in something to which they fundamentally object.

Finally, other groups have noted their opposition to the bill because they believe that the language goes beyond the protections guaranteed by the federal RFRA. In order to address this specific concern, Rep. Teasley offered amendments that imported the federal RFRA’s language into his bill wherever it may have offered more protection than the federal bill does.

Current Status:

Following the very public veto of a similar bill in the state of Arizona, both HB 1023 and SB 377 were tabled in their respective committees. Delta Airlines recently expressed their disagreement to this policy. Commenting on the removal of SB 377 from the Senate Rules calendar, Sen. McKoon told the Huffington Post, “I was told it’s still an open question as to whether it will be added to the calendar. […] So your guess is probably as good as mine as to whether they’re ultimately going to allow a floor vote on it. But as it stands today, it is not going to be considered on Monday.” As of “Crossover Day,” SB 377 was not presented on the Senate Floor and will not pass during this legislative term.


Georgia Considers Privatization of Child Welfare System

A bill to privatize most of the state’s child welfare services was introduced this week by Senator Unterman (R-Buford). The legislation, Senate Bill 350, would require the Department of Family and Children Services (DFCS) to develop a plan by January of 2015 by which is would contract with a limited number of regional lead agencies to provide the vast majority of child welfare services that are now, at least in part, offered by the state. The program would be phased in over the course of two years.

While lead agencies would be allowed to provide up to 35 percent of the services needed within a region, the law would require that they contract with other local agencies to provide the majority of services.

Contracts between the state and lead agencies would be for five years with DFCS having the ability to extend the contract for an additional three years. While DFCS would no longer be a direct service provider, it would remain responsibility for providing oversight of the contracted agencies.

As an incentive to agencies to find suitable permanent placements for children in their care, the law would fund agencies with per-child payments for a maximum of six months. After six months agencies would be required to pick up the tab for children that remain in their care. Likewise, agencies would not be eligible for per child payments for any child returning to the agency within 12 months of a permanent placement.

The reform is modeled after similar efforts in Florida and more than a dozen other states over the last couple of decades and has been driven by Georgia’s continued failures to adequately serve the children in its care.

While privatization is supported by many state leaders, including the Governor and Lt. Governor, opponents to the change say that it is being done too quickly and without considering ways to reform the system without privatization.

Evidence from Florida and other states shows that privatization can have beneficial effects, including improved safety for the children in care and a reduction in the number of children in state custody.

Yesterday, the legislation was favorably voted out of the Healthcare Delivery Subcommittee of the Senate Health and Human Services Committee. A stakeholder meeting was expected to be held today.

Demand for Choice High: Education Tax Credit Cap Reached in Record 22 Days

Just this past week, Georgia’s Tax Credit Scholarship program reached its cap of allowable donation commitments (currently, $58 million) in well under a month. That’s the earliest the cap has been reached in the program’s history, three and a half months earlier than last year, when the cap was reached on May 9th.

Add to the early cap the fact that Student Scholarship Organizations (SSO’s), those groups tasked with distributing tax credit scholarships, nearly universally report long waiting lists of students seeking a scholarship and it becomes clear that the program is in high demand.

Of course, it comes as no surprise that a school choice program in Georgia is overrun with interest.

Charter schools have long experienced high demand, with lotteries becoming necessary to decide which children are selected among the many who want to attend. Of course, parents are expressing their desire for additional choices in other ways, including sacrificing to send their children to private schools and, in an ever growing trend, teaching their children at home.

Given Georgia’s record on educational achievement, it’s really no wonder parents and their kids are looking for something better. That said, the desire for choice often has as much to do about wanting to escape an unsuitable school environment as with academic achievement.

That’s exactly why we’re hosting a rally at the Capitol tomorrow to celebrate National School Choice Week. While we are happy about the progress Georgia has made in increasing education options in recent years, less than 1 percent of Georgia’s more than 1.6 million students has been able to access Georgia’s school choice options.

Our tax credit program cap of $58 million annually may seem like a lot but compared to other states, it’s just a beginning of what’s needed to meet the demand. Florida’s program, for example, is currently capped at $286 million annually and grows each year automatically while Louisiana’s program has no cap at all.

Not only are Georgia’s current school choice programs limited, but for the 57% of Georgia students who are eligible for free and reduced-price lunch, options are limited yet again because – unlike wealthier families – they are often unable to move to a district with better public schools.

The net result is that if the local public school isn’t suitable for them, they have nowhere else to turn.

With many billions of dollars spent in Georgia each year on public education, there is no excuse for a child being trapped in any particular school. We should demand more for Georgia’s children.

2014 Session Begins

Below is the first edition of our Capitol Update newsletter for 2014. If you’d like to receive future editions in your inbox, sign up here.


2014 Session Begins

By: Eric Cochling, VP of Public Policy
Georgia Center for Opportunity

Welcome to the first edition of our Capitol Update for 2014. As we have done for several years, we will be sending out regular updates to let you know what’s happening under the gold dome (good, bad or otherwise) during the 2014 session of the Georgia General Assembly. Should you have any questions or comments about the content of these updates, please email Eric Cochling.

New Year, Election Near

The 152nd session of the Georgia General Assembly started on Monday. Since this is an election year, the session promises to be a short one as members of the Assembly look to campaign and raise money, things they cannot legally do while in session.

If this week has been any indication, activity will be fast and furious until the end of session, which is expected to end in mid-March this year. It doesn’t help the sense of urgency that the state is on the verge of moving our primary election from July to May. Legislation moving the primary election made its way through both houses of the General Assembly this week and is now on the way to the Governor for his signature.

With the elections looming and based on conversations we have had with lawmakers, we also expect the legislature to steer clear of politically divisive legislation. That said, “politically divisive” is in the eye of the beholder and you can never be certain what bills will generate controversy. It is safe to say that all legislators hope to leave this session, in particular, having made as few of their constituents mad as possible.

Legislation, Study Committees, and Rumors to Watch


This week, Governor Deal proposed a $42.3 billion budget – more than half of which is coming from the federal government!! – that includes $547 million in additional funding for Georgia’s public school system to fund teacher pay increases and adding back days to the school calendar.

In other news, House Resolution 486, sponsored by Rep. Tom Taylor (R-Dunwoody) would amend the Georgia Constitution to allow municipalities created in 2005 or later (and contiguous municipalities) to form city school systems.

In the category of  “Finally!,”  Rep. Ed Setzler (R-Acworth) says that he is planning to introduce legislation to address some of the problems created by Georgia’s zero-tolerance law relative to weapons on school property. It would be great if accidentally leaving a pocket knife in your car didn’t result in a criminal record.

Criminal Justice Reform

Georgia’s Criminal Justice Reform Council released its third set of recommendations in three years on January 10th, this time focusing on reforming aspects of prisoner reentry. GCO testified before the council in November and we are happy to see that many of the recommendations from our Prisoner Reentry Working Group were included in the council’s report.

The council’s official recommendations include the following:

  • Each prisoner should have a Transition Accountability Plan initiated at the time they enter prison and consistently used during incarceration that will determine the best path to successful reentry;
  • State corrections agencies should work more closely with private agencies and returning citizens to locate and secure sustainable, safe, and affordable housing;
  • The food stamp ban on offenders convicted of a drug-related felony should be lifted, provided that they maintain a certificate of program completion issued by the Department of Corrections showing that they are in good standing and in compliance;
  • Judges should be allowed to modify driver’s license restrictions for those convicted of minor drug offenses not involving a vehicle so that they are able to operate a vehicle;
  • In hiring for state employment, job candidates should not be asked about criminal history until the interview stage.
  • Negligent hiring liability protection should be provided for companies willing to hire ex-offenders under certain conditions.

It is very likely that we will see these recommendations included in a criminal justice reform bill this session. We will keep you posted.

Marriage and Family

It’s difficult to deny the harm that no-fault divorce causes to children. It’s also difficult to know exactly what needs to be done to help protect kids from unecessary divorce. House Bill 684, sponsored by Rep. Jason Spencer (R-Woodbine), offers at least part of the answer.

This legislation would only affect couples with minor children, where the grounds for divorce are irreconcilable differences (no-fault). In those cases, the legislation would require divorcing parents to take an eight-hour course that explains how divorce will impact everyone involved, especially the children. It would also require a “discernment period” of 320 days before a court could grant the divorce. The waiting period could be waived in cases involving abuse, neglect, or abandonment and, importantly, the existence of abuse, neglect, or abandonment could be proven to a judge outside of the public eye and public record.

The thinking is that during the discernment period, tensions could cool and the couple could experience life apart – before making it permanent – so that they could see how their divorce would impact their children over the course of the year (including birthdays, holidays, etc.). While not a silver bullet to solve the marriage and divorce crisis in the country, this is certainly a good way to encourage couples with children to stay together.

Visit Allies for Family Life and look for “Children’s Hope for Family Act” for more information.

Child Welfare

According to this report, it appears that Georgia is moving quickly to obtain a federal waiver that would allow the state more flexibility in how it spends federal foster care dollars. Governor Deal has indicated that the new flexibility would be used to create new public/private partnerships that would allow private agencies to take a lead role in providing foster care and other child protection services. The Casey Family Foundation has praised the use of waivers and privatization in other states where it has been a success and called for extending the availability of waivers to the states beyond this year.

Our team continues to serve on the Governor’s Office of Children and Families CSEC Task Force, which is making real strides in raising awareness of child sex trafficking in Georgia and finding effective ways to rescue and serve victims, while reducing demand. The subgroup on which we serve recently developed a certification program for businesses that commit to fighting child sex trafficking called Champions for Safe Children. We are now in the process of delivering trainings for interested companies around the metro area. Next up: developing similar certification programs for cities and neighborhoods.

Upcoming Event

Please join us for our 4th annual School Choice Celebration & Rally on Tuesday, January 28th, from noon to 2pm at the Georgia State Capitol. Our special guest will be Keshia Knight Pulliam (Cosby Show and House of Payne). Registration is encouraged.


The General Assembly has been around a while and like any old institution it has developed its own language. James Salzer at the AJC put this glossary together to help us outsiders keep track of what’s happening.

Thanks to Jamie Lord, our director of government affairs, and Jacob Stubbs, our legislative intern and John Jay Fellowship alumnus for their able contributions to this update.

Despite Guidelines, Many Georgia Students Not “College Ready”

Below is a guest blog by Dr. Eric Wearne of Georgia Gwinnett College and formerly with the Governor’s Office of Student Achievement. Dr. Wearne currently leads GCO’s College & Career Pathways working group.


By: Dr. Eric Wearne

What it means to be “college ready” has been a popular topic of conversation among educators in school systems, state agencies, and even at the national level for several years.  Local schools certainly think about this, though they are not directly held accountable for their graduates’ outcomes (other than graduation itself). The Georgia Department of Education and the University System of Georgia have worked on college readiness definition and alignment issues for several years.  SAT and ACT publish their opinions of what constitutes “college readiness” (based on their respective tests) every year.  And the federal report that was meant as a “blueprint” for reform of no child left behind very clearly discusses USED’s desire to increase “college readiness.”

Over the past few months, GCO’s working group on college and career readiness has met and started defining its research agenda in the area of improving college readiness outcomes.

In its first few meetings, the group has looked specifically at college readiness.  The group has chosen to focus its efforts in this area by looking at the particular issues of three sets of students:

a.       Students in college but not prepared for it;

b.      Students currently in high school and in danger of dropping out;

c.       Students in high school (not in danger of dropping out), but not on track for college or careers.

Today, the group will meet at Georgia Gwinnett College, and will hear presentations about issues related to students in need of remediation and first-generation college students.  SAT, ACT, and USED have suggested college readiness standards or goals, as noted above.  More practically for Georgia schools, the University System of Georgia has defined what it means to be “college ready” through its Required High School Curriculum.  The requirements are reasonable, and both public and private schools in Georgia know what these requirements are and help their students meet them.  But the fact remains that large numbers of students who would like to attend college, and work toward (and often attain) these credentials are still not college ready.  How might colleges support students who they have admitted, but who are not really college ready?  What can K12 do to ensure that their graduates are able to do what they want to with their lives, or, as GCO often puts it, reach “middle class by middle age?” This ground is where GCO’s working group will conduct its research and find recommendations.

This is just the first stage in the group’s work.    In the coming months, the group will look more specifically at career readiness, broadly-defined: career academies, vocational education, apprenticeships, etc.  Other areas the group will explore as it works toward policy recommendations are: looking at the impact of teacher effectiveness, teacher training, and teacher career responsibilities on college- and career-readiness outcomes; exploring the possibilities that may come from online learning technologies and related strategies such as competency-based learning; and other areas the group finds necessary and worthwhile.