by Georgia Center for Opportunity | Jul 6, 2015
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.[1] 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.
[1] 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.
by Georgia Center for Opportunity | Jun 4, 2015
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.
by Georgia Center for Opportunity | Apr 20, 2015
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/
by Georgia Center for Opportunity | Apr 9, 2015
Jonathan O’Neill, a humble and soft-spoken man, is 46 years old and the father of fourteen children. He has been incarcerated since 2012 and currently resides at a transitional center where he works and takes various classes to prepare for his release that is set for Spring 2016. He is currently responsible for paying child support for seven of his children, which mostly consists of reimbursing the state for public assistance that was given to the children’s mothers. His other seven children are either grown or fully supported by their mothers.
When the time comes for Jonathan to be released, he will have as much as $45,000 in back child support, a suspended driver’s license, and the stigma of a criminal record. His story demonstrates how child support debt and its associated consequences can create significant barriers for people reentering society from prison.
The Debt Begins
Jonathan was just 19 years old when had his first run-in with the law. A joyride with a friend in a stolen car not only cost him his freedom, but also led his then girlfriend to seek Temporary Assistance for Needy Families (TANF) to take care of their child. Like many incarcerated persons, Jonathan found out the hard way that he owed child support to the state as reimbursement for public assistance, and that his time behind bars did not delay responsibility to pay the state back. The 18-month prison sentence he received resulted in thousands of dollars in arrears accruing by the time he was released.
This debt made him angry and he refused to pay the state back for the public assistance given to his girlfriend.
Jonathan had his next two children with another woman. Though they lived together, this girlfriend also began receiving TANF apart from him knowing it. His child support arrears grew to $8,000 during this time because he was not paying the state for the public assistance it was providing for his children. Additionally, none of the money he spent to take care of his children while they lived together counted toward his growing child support debt because it was considered unofficial support since payments were not being made to the state as a reimbursement for public assistance. This led to a fall-out with his girlfriend and made him grow even more angry and rebellious toward the child support system over the next few years.
Jonathan explains, “I was mad at the mothers for doing this, so I neglected paying. I would take care of the children in my home, but I didn’t want to pay the state back. I had a rebellious spirit and felt like I was the father and I’m doing it how I want to.”
By the age of 27, Jonathan had five children from two mothers and over $14,000 in child support arrears. Having difficulty finding a job with his felony conviction, he began selling drugs to earn money. He was eventually caught with cocaine in 1999 and sentenced to 10 years on probation. Nine years later in 2008, he violated his conditions of probation by testing positive for marijuana, and he was sent to a Probation Detention Center (PDC) for 90 days.
A Turning Point
During his time in the PDC, Jonathan reflected upon the words a judge spoke to him in 2005: “You have so much in arrears, you will die owing the state money.” These words haunted him, and he wanted to make sure this did not prove true.
Upon release from the PDC in 2008, Jonathan became involved with a church that was located directly across the street from the PDC. It was through his involvement there that he experienced a spiritual transformation and became determined to earn an honest living. However, despite his earnest desire to find legitimate work, he struggled to find a job for eight months.
“I waited eight months and still I had no job. I got letters from the state threatening to lock me up for a whole year for non-payment of child support. I was tempted to sell drugs again. However, I chose to depend on God and He came through. I started painting at the church for no money. One day, God brought a man from the church who gave me a job at Food Lion because he was leaving.”
Jonathan gained skills as a meat cutter and worked consistently from 2009-2012 at stores such as Food Lion, Food Depot, and Piggly Wiggly, even earning employee of the quarter at his first store. During this period, he paid the full amount of his child support order each month plus a percentage of his arrears, amounting to $566 per month. He was determined to pay off his debt and make sure that he would not die owing money to the state
“I would have paid all of this debt at one time if I could,” says Jonathan, but at this point he was nowhere close to being able to do this. Instead, he paid what he could little-by-little. As a result, his hard work and determination enabled him to reduce his arrears by thousands of dollars.
Jonathan was heading down the right track.
Another Setback
In the summer of 2012, Jonathan and his fiancé were scraping by to pay the bills. Desperate for a way to earn extra cash, he discovered that he was able to win quick cash through gambling.
“I got addicted to playing gambling machines for cash money. I started losing money and got behind on rent. I didn’t want to face my children after not being able to pay, and I thought I could gamble to get the money.”
The day came when Jonathan gambled away money that he needed to pay his family’s rent. Upon losing, he panicked and snatched the money from a manager at the gambling center. For his rash actions, he was charged with robbery by snatching and was sentenced to prison for the second time.
“I’ve been in prison for two years and three months now. The state just sent me two letters for two different cases and I owe a total of $45,308 in arrears ($18,209 non-TANF arrears and $27,099 TANF arrears). It’s discouraging. I’m in prison – what do they expect me to do?”
Georgia is one of three states that does not allow inmates to earn money while working in prison, leaving him no way to pay his debt while incarcerated. However, now that he is at a transitional center, Jonathan has the ability to work, earn money, and have some earnings withheld to pay child support.
He is currently working at Arko Veal Meat Co. earning $8.50 per hour and working 26 hours per week. This work enables him to have $389 withheld from his paycheck every month to go toward paying child support.
Barriers to Reentry
While Jonathan’s time in the transitional center is helping to prepare him for reentry, he will face new challenges upon release. His home is far from the transitional center where he currently resides, which means that he will lose his present job and have to look for another one. He tried to transfer to a transitional center closer to home in order to find a job that he could keep upon release, but he was denied that opportunity. Still, he is hopeful that he will be able to get his old job back at Food Depot when the time comes to be released.
If this opportunity does not work out, his plan is to try to get a job at a different grocery store called Harvey’s. The manager at this store has hired individuals with convictions before, which gives him hope that he can work there, too. He would earn around $10 an hour as a meat cutter.
Even once Jonathan is able to secure a job, he still faces the challenge of commuting to work daily due to his suspended driver’s license. His license will only be reinstated by paying a sum that is twice the amount of his current child support order of $566, in addition to paying the normal monthly order.
“When the child support agent firmly stated that the amount I pay to get my license reinstated does not include what is coming out of my check, I hung my head. I thought, ‘Man, I can’t do this.’”
This sum of $1,698 is simply too much for him to pay while trying to pay rent, bills, and other living expenses.
Jonathan tried to arrange an agreement to make a partial payment in order to get his license back at an earlier point in time: “I told the agent, ‘Ma’am, I really need a license. Can I make a partial payment?’ She said no and told me that the judge ordered me to pay the full amount. She then said that we could get it modified, but that it would cost $300 just to go before the judge. I told her I can’t come up with it.”
He estimates that it will take him a year of full-time work at the grocery store before he will be able to pay to have his driver’s license reinstated. For now, he plans to get to work by having his fiancé, who works a full-time job as a night-shift nurse assistant, or his adult son drive him there.
Jonathan has a sincere desire to do whatever it takes to support his kids, which he demonstrated during the three years leading up to his incarceration. He simply lacks the money needed to have his license reinstated because it must go toward meeting his family’s basic living expenses.
“Having a driver’s license would not only be my way to work, but it would also help out with my duties as a husband and father around our home. My son and daughter are starting Kindergarten and Pre-K and my fiancé works from 11 pm to 8 am, so I will have to take them to school before I go to work.
For now, he is determined to make the best use of his time in the transitional center as he prepares for his reentry. He expresses an air of freedom and hope that did not exist earlier in his life, despite being encumbered by debt. He knows what it looks like to fully embrace his roles as a responsible father and citizen, and he plans to continue down this path once he is released.
by Georgia Center for Opportunity | Apr 1, 2015
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.foropportunity.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.
Legislative Calendar
Tomorrow (April 2, 2015) is Sine Die – the last day of the 2015 Legislative Session.
Reports
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.
by Georgia Center for Opportunity | Mar 30, 2015
This past week, Indiana enacted a religious freedom law much like the one that remains under consideration here in Georgia. Despite Governor Mike Pence’s assurances that the bill has nothing to do with discrimination, there was a swift—and very negative—reaction on the part of some in the business community.
Leading the charge was SalesForce.com CEO Marc Benioff, whose Twitter feed, according to the Washington Post “has been an all-out campaign against the new law, with threats to ‘dramatically reduce’ the company’s investment in the state, calls for other tech CEOs and tech industry leaders to vocally oppose the measure, applause for those tech leaders who have come out against it, and ultimately, a decision to cancel all Salesforce programs that would require the company’s employees or customers to travel to Indiana.”
Others have followed suit: Apple CEO Tim Cook, NCAA President Mark Emmert Angie’s List CEO Bill Oesterle, and Yelp CEO Jeremy Stoppelman, among others, have also issued statements of concern, punctuated by varying levels of passion or, some might say, hysteria.
I get that—apart from those closely-held companies, like Chick-Fil-A and Hobby Lobby, whose owners are deeply religious and treat their work as a calling—business as business has no great immediate concern with or interest in religious liberty. Indeed, religion often presents itself in the business world as somewhat of an inconvenience. Employees don’t want to work on their Sabbath or on a religious holiday. They sometimes believe they have a religious duty to dress in a particular way, which may or may not square with the dress code. Or perhaps they have religiously-inspired scruples about performing certain sorts of services, as when a pharmacist doesn’t want to fill a prescription for an abortifacient. To be sure, I would argue that if business owners took a wider view, they might have a greater appreciation for employees who were conscientious and worked hard because, for example, they themselves regarded their work as a calling, or because they belonged to a religious community that held them accountable for their character. But that’s not the point of this essay.
My question here is why so many business leaders reacted so negatively to a law that doesn’t depart significantly from the 1993 federal law that won overwhelming bipartisan support and that already was on the books (either by a positive act of legislation or by judicial interpretation) in twenty-nine other states.
Some business leaders are, I think, simply averse to conflict. When a sympathetic, well-funded, and vocal constituency makes a stink about an issue, when a piece of legislation is “controversial,” they shy away from it as being “bad for business.” They may not be particularly well-informed about the details of the issue, but they do know that there is controversy and conflict, and that’s unlikely to boost their bottom line (unless, I suppose, they’re in the news business).
That certainly explains some of the business opposition to the Indiana bill and its counterparts around the country. Gay rights groups have been vociferous in mischaracterizing the religious liberty legislation as offering a license to discriminate, and their efforts have been aided and abetted by a press that too readily puts “religious liberty” in scare quotes and lazily adopts the “right to discriminate” shorthand in describing the bill. It’s not my purpose here to speculate about the motives of either gay rights groups or reporters in taking this tack. Suffice it to say that they have, and that too many people—among them CEOs who are paid to know better about a good many things—have simply fallen for this ploy.
Other business leaders—I put Marc Benioff and Tim Cook in this category because they have chosen virtual megaphones to trumpet their opposition to this legislation—act less on the basis of reasons connected to their bottom line and more because they are committed to the cause of gay rights and same-sex marriage. I’m the last person to say that they’re not entitled to their opinions and entitled to use any legal means to promote them.
But I’m also entitled to call them out. Let me begin with Tim Cook, who authored (or at least put his name to) an op-ed in the Washington Post. I’ll leave aside the fact that he repeats the entirely predictable mischaracterization of the Indiana bill. He then ties it to what he says are “nearly 100 bills designed to enshrine discrimination in state law.” But the only example he offers is a Texas bill that would, as he puts it, “strip the salaries and pensions of clerks who issue licenses to same-sex couples.” It is indeed a striking piece of legislation that would be unlikely, I think, to survive a legal challenge. But I would be surprised if the bill proposed by a Republican backbencher even came to a vote in the state legislature. So, yes, there are people out there who are seeking legislative means to oppose same-sex marriage, though I think it is illiberal to describe such efforts as “dangerous,” as Cook does. He wants to make it easier for us to get to that adjective by assimilating this brand of religious freedom to racial discrimination:
I remember what it was like to grow up in the South in the 1960s and 1970s. Discrimination isn’t something that’s easy to oppose. It doesn’t always stare you in the face. It moves in the shadows. And sometimes it shrouds itself within the very laws meant to protect us.
So there you have it: according to Cook, people who support religious liberty are kinda sorta like the people who supported Jim Crow. Some of them may be; I don’t know. But when you actually read the legislation, which tracks the 1993 federal legislation supported by an overwhelming bipartisan majority, it’s hard to believe that language endorsed by Senate minority leader-in-waiting Charles Shumer (in the 1993 federal law) and Barack Obama (when he voted for the Illinois RFRA in 1998) is the functional equivalent of Jim Crow.
Then there’s Marc Benioff, who has gone one giant leap beyond editorializing. He has proposed to pull his company’s business from Indiana because of the “anti-gay” (the scare quotes are quite appropriate here) legislation. Interestingly, however, he has not said the same thing about his company’s business in, say, Dubai, whose anti-gay (note there are no scare quotes, since the animus is very real) policies are notably harsh. According to the State Department’s 2013 report on human rights:
Both civil law and sharia criminalize consensual same-sex sexual activity. Under sharia individuals who engage in consensual same-sex sexual conduct are subject to the death penalty. Article 177 of Dubai’s penal code allows for up to a 10-year prison sentence for consensual sex. There were prosecutions for consensual same-sex activity during the year. At times the government subjected persons against their will to psychological treatment and counseling for consensual same-sex activity.
At the very least, then, he looks like a hypocrite, since his treatment of jurisdiction in regard to this issue is inconsistent. Perhaps he can explain what good reason there is for treating his fellow Americans more harshly than the citizens of Dubai. He might answer that he has more clout in Indiana than he does in Dubai. Some might call that picking one’s fights wisely. Others might regard it as being a bully.
In the end, businesses will do what they will do. Mostly that means following their bottom lines. If there is business to be done and money to be made, they will do it. At least that’s what they keep telling us. If it’s true, then I have confidence—if only our political leaders displayed some backbone—that threats of boycotts and so on, won’t be long-lasting, and that any vacuum left by a business leader who acts against his company’s interest will be filled by someone else who sees an opportunity. As for the ideologues in the corporate corner offices, I assume that if they act against their company’s economic interests, their shareholders will eventually punish them.
Ain’t capitalism grand?
