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?
by Georgia Center for Opportunity | Mar 25, 2015
I have been following the legislative peregrinations of Georgia’s religious liberty (notice that, unlike the Atlanta newspaper, I don’t use “scare quotes” to describe it) legislation with a great deal of interest and concern. There are just a few days left in this year’s session, and I’d love to see the legislature do the right thing and provide additional sensible protection to what we have for a long time called our “first freedom.” I wish I were more confident.
To get you up to speed, let me give you, dear readers, a brief recap of what has happened so far. Different versions of the proposal were filed in the House and in the Senate. The Senate version passed overwhelmingly on March 5th. It now sits before the House, where it will be the subject of a subcommittee hearing on Tuesday, March 24th. Proponents and opponents of the legislation have turned up the heat, with RedState/WSB pundit Erick Erickson becoming very vocal in favor of the bill and opponents continuing to claim—wrongly, I would argue—that it is a license to discriminate.
My biggest fear is that some legislators—especially those with the most influence—will simply choose to keep their heads down, seeking to propitiate the noisiest constituency. In this, they will follow the risk- and bad publicity-averse business community. In this connection, the latest straw in the wind is a speech delivered by House Speaker David Ralston to the Atlanta Press Club. Here’s what the Speaker had to say:
That gets the bill title of the year award in my book. And I want to say a few things about that bill today. I have said before: I am talking with and listening to people on both sides of this important issue.
And I will continue to do so. I do not take lightly the importance of protecting a person’s right to worship and express their faith. The framers of both the United States and Georgia constitutions saw this right as paramount. And that’s why we find this protection in our most basic and important and even sacred legal documents.
As with any issue of this magnitude, there’s a lot of misinformation swirling out there through the modern rumor mill that we refer to as social media. Despite what you have heard, I haven’t made my mind up. I am still seeking the right way forward, and I don’t apologize for that.
Some things in our legislative process, unfortunately, do take time to work out. Before we move forward, we have to understand what the impact of this legislation will be on the rule of law in this state. We need to know if this legislation opens the door to unintended consequences of any type, that some may try to exploit.
I take proponents of this measure at their word that discrimination toward anyone is not part of this effort. At the same time, I appreciate the concerns of those who have strong opposition to this legislation.
The good news is that Georgia is a global destination for people from all over the world who want to come visit and for businesses that want to come create jobs. And that is not going to change.
But closing the door to anyone is closing the door to all.”
A few things are worth noting here, beginning with his ironic reference to the bill’s title, which I take to mean that he’s of a mind to adopt the “scare quotes” approach taken by the AJC. Second, I’m certainly willing at the moment to take him at his word when he affirms the importance of religious liberty. Third, his concerns about unintended consequences and the rule of law are certainly appropriate, but, I think, rather easily allayed. We have more than twenty years of experience with a federal RFRA, and I don’t think that any honest observer could assert that that piece of legislation amounts to the greatest threat to the rule of law in America today. (I have other nominees for that prize, but that’s a subject for another day.) Of greatest concern is his final comment: “closing the door to anyone is closing the door to all,” offered in the context of a reference to Georgia’s global business ties. As I said earlier, there are noisy constituencies that insist—loudly and at every turn—that the bill offers a license to discriminate, that it is anti-gay, and that it will, in effect, send a signal to gays and others that Georgia is hostile to them. Under those circumstances, they will simply take their business elsewhere. That line of argument seems greatly to concern the Speaker and his allies in the business community. The easy way out is let the bill die this session, sending a signal that Georgia is still open for business. This is easy because the bill’s proponents are, generally speaking, business-friendly and not given to the kind of “bad behavior”—economic boycotts, threatening people’s jobs, and demonstrating at people’s homes—that folks on the other side have displayed. They’ll still shop at Home Depot and book their tickets on Delta.
There’s bit more to the speech that gives me a little hope and more than a little concern:
In this and other passionate debates, however, there always seems to be a few for whom honest, reasonable, and civil discussion is an alien concept that they are simply not acquainted with. These pundits-for-hire and self-professed thought leaders are not looking to protect anything, or anyone. They seek profit, relevance, and attention by preying on people’s worst fears through loud volume, lies and distortions.
I have no interest in rushing to act on this or any other issue merely to coddle over-inflated egos or help grow someone’s bank account.
Here’s what I propose we do: Let’s all take a deep breath and look at this thing in a reasonable way – and we’ll find the right way that really does what both sides hope to accomplish. Because I believe that at the end of the day, Georgians don’t have time for the politics of personal destruction. They don’t expect us to waste the limited time we have here playing these kinds of games.
As an American, and Georgian, and born-again Christian, I value inclusive discussion. I believe the Old Testament prophet got it right when he said, in the Book of Isiah, ‘Come, let us reason together.’
I don’t expect or demand that the members of the House agree on everything. What I do ask, and what we have done, is debate the issues constructively…
The AJC reporter believes that the Speaker’s remarks are largely directed at Erick Erickson, who (as I noted earlier) has turned up the volume in favor of the bill. Erickson may well have hit a nerve, but he’s hardly the only participant in the debate who may have crossed a line or two in promoting a favored position. I wish that the commentary here were more even-handedly directed at transgressors on both sides, rather than focusing much of the ire against a perhaps overzealous supporter of the legislation. Then I’d be more confident in the Speaker’s willingness to “reason together.”
I’ll close by noting an argument proffered by AJC columnist Kyle Wingfield: if the bill is killed this year, it will surely come back next year, after a Supreme Court decision that will likely create a constitutional right to same-sex marriage, with even more heat and less light surrounding it. Genuine friends of religious liberty don’t want it tied too intimately to the hot button social issue of the day. If David Ralston is a genuine friend of religious liberty, he could do much worse than take Wingfield’s advice. Bring it to a vote this year, for next year the acrimony and vitriol will only be worse.
Update: After yesterday’s hearing, some are speculating that the House will approve an alternative to the Senate version that narrowly tailors protections to faith-based non-profits, specifically excluding for-profit businesses like Hobby Lobby, whose owners have religious scruples about contraceptives or abortifacients, for example. I would rather see a robust protection of religious liberty, even in the marketplace. And I would prefer, even more, that people display enough respect for the religious scruples of their fellow citizens that they wouldn’t demand that a business owner act against his or her conscience. But I, personally, would prefer some legislative protection to none at all. I remain persuaded by Kyle Wingfield’s argument that, in the next legialtive session, after a likely Supreme Court decision, getting even a narrow religious liberty bill will be exceedingly difficult. And I am acutely aware how hard it is to persuade the Georgia legislature—even when it’s controlled by people who identify themselves as conservatives—to pass sensible legislation that takes reasonable account of the role of religion in our culture and civilization.
by Georgia Center for Opportunity | Mar 10, 2015
While education plays a tremendous role in shaping individual life outcomes, the number of students in Georgia who do not advance beyond K-12 remains astronomically high. Over 1 in 5 young adults in Georgia are not attending school, not working, and have no degree beyond high school. Additionally, in 2014, more than 33,000 students did not graduate. Of those who go on to college, nearly 40 percent do not finish in four years.
To promote solutions that will give more Georgians a real chance to prosper, GCO convened a working group of education professionals as part of the College and Career Pathways Initiative. Comprised of K-12, postsecondary, and local business leaders, the group sought to contextualize barriers faced by students, parents, and schools of varying circumstances across the state.
Through a series of nine meetings, the group not only considered the academic needs of readiness, such as rigorous learning standards, and systemic barriers, such as recruiting and preparing quality teachers, the group also considered the philosophical underpinnings of readiness such as the relationship between education and fulfilling one’s purpose in life.
The following report serves as an overview of the themes and key issues covered by GCO’s College and Career Pathways working group. Major themes include the importance for Georgia to:
- Move away from big policy as a means of education reform
- Empower schools to take the reins of innovation and reform
- Help students develop healthy habits through strong relational ties
Through the lens of the themes described above, GCO plans to publish over the coming months a series of reports addressing key issues impacting college and career readiness in Georgia. These issues include:
- Measuring noncognitive variables in school and building small-scale relationships
- Improving accountability measures in Georgia’s schools
- Education reimagined through blended learning models
- Increasing experimentation and creativity in teacher preparation: Creating “the missing institution”
To read the full report, click here: Fortifying Pathways: Themes to Guide College and Career Readiness in Georgia
by Georgia Center for Opportunity | Feb 26, 2015
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.
by Georgia Center for Opportunity | Feb 24, 2015
It’s official. Governor Nathan Deal signed an executive order on February 23rd to “ban the box” on applications for state employment in Georgia. This order will remove the question about felony convictions from the initial job application and postpone it to a later point in the hiring process. This policy is intended to provide those with a criminal record a fair shot at showing employers why they are the best candidate for a job without being automatically screened from the hiring process simply because they have a felony conviction.
The Governor laid out specific hiring practices that government entities of the State of Georgia shall follow:
- Prohibit the use of a criminal record as an automatic bar to employment.
- Prevent the use of an application form that inappropriately excludes and discriminates against qualified job applicants.
- Promote the accurate use and interpretation of a criminal record.
- Provide qualified applicants with the opportunity to discuss any inaccuracies, contest the content and relevance of a criminal record, and provide information that demonstrates rehabilitation.
- Require initial disclosure on applications for sensitive governmental positions in which a criminal history would be an immediate disqualification.
Georgia is joining thirteen other states who have implemented a fair hiring policy and is the first state in the South to do so. This policy will help to remove a barrier to employment for those with a criminal record by opening up more job opportunities for which motivated returning citizens may be qualified. The state is setting the example for how county, city, and private employers could aid people leaving prison in the reintegration process by giving them a fair shot at jobs for which they are good candidates.
Georgia Center for Opportunity (GCO) applauds the important step taken by the Governor to “ban the box” as well as the efforts of all those who have been involved in working to increase employment opportunities for returning citizens in Georgia. In December 2013, GCO published a report recommending that the state “ban the box” and set the example for private employers by hiring and maintaining qualified returning citizens as employees. This recent executive order is the first step in seeing this fulfilled.
In addition, GCO is pleased to see several other recommendations from our December 2013 report currently being considered by the General Assembly or state agencies. These recommendations include offering a State Work Opportunity Tax Credit to incentivize employers to hire returning citizens, lifting professional license restrictions for those with felony convictions, and ensuring identification is secured prior to a person’s release from prison.
As Georgia continues to take positive steps forward in removing barriers to opportunity among those involved with the criminal justice system, the public should begin to see more examples of returning citizens who are not only making it in society, but flourishing.
by Georgia Center for Opportunity | Feb 7, 2015
In a blog post, the AJC’s Jay Bookman tried to use a case in Kentucky to raise the spectre of what might happen in Georgia if the legislature passed the “Preventing Government Overreach on Religious Expression Act,” its version of the Religious Freedom Restoration Act (RFRA), passed by an overwhelming bipartisan Congressional majority in the 1990s.
Heavens to Betsy, Bookman argued, in Kentucky, a religious group is appealing to that state’s RFRA to insist that it has the same right to tourist development dollars as does any secular enterprise. At issue is the effort of the group Answers in Genesis to build a theme park centered on Noah’s Ark. The park will likely attract visitors to the region, and they will spend money at motels and restaurants near the park, as would tourists visiting Six Flags. Answers in Genesis argues that it is entitled to state assistance in the same way as is any secular organization. Their project should be considered for its economic development impact, just like any other project. The state disagrees, as does Mr. Bookman. His principal objection is that the organization is likely to require its theme park employees to sign a statement of faith, which means that the state would be providing funds to support an employer that engaged in discrimination on the basis of religion.
Answers in Genesis has filed a lawsuit in federal court, according to Bookman. Right there he has a problem with the burden of his blog post. If the organization is suing in federal court, the Kentucky law will be entirely irrelevant to that court’s decision. Whatever happens in this case will have absolutely no value for predicting the effect of the Georgia law, as interpreted by Georgia courts.
But let’s take a step back and look at Bookman’s argument a little more closely. Here’s his central contention, the premise that lies at the foundation of his position:
Let’s start the debate by pointing out that tax money and tax incentives shouldn’t be used to promote or advance a particular religious faith. I’d like to think that’s a bedrock principle that most Americans still support, although these days even that might be considered controversial in some quarters.
On one level, it’s hard to disagree with him. If the First Amendment Establishment Clause and its state counterparts mean anything, it’s that no state should establish—provide public support for—a church. But the Supreme Court has, in numerous cases, held that when religious organizations are seeking public funding, they need to be treated in the same way as secular organizations. If they satisfy neutral criteria, established without reference to religion, then they are just as eligible for support as any other entity. To deny religious groups this opportunity to compete for public funding on a level playing field is to engage in “viewpoint discrimination.” Thus in Rosenberger v. Rector, the Court held that a student religious magazine at the University of Virginia was eligible for funding from the student activities fee, just as was any other student organization. That public dollars flowed to a religious group did not imply an establishment of religion, as the Court understood it. The religious group was just one among many receiving support. The state’s thumb was not on the scale favoring religion over against secular alternatives. Rather, to deny the group access to this funding would actually be hostile to religion. If anything, the state’s thumb would be on the scale opposing religion.
The attorneys for Answers in Genesis know what they are doing. They’re on quite solid federal constitutional ground in challenging the state’s decision to deny tax incentives available on the basis of neutral economic development criteria to all but religious groups.
And, as I have argued, if they win, it will have nothing to do with Kentucky’s RFRA, and will predict nothing about what will happen in Georgia.
But let me make one last point regarding an implication of Bookman’s argument. If, as he contends, state and federal money should never go to an organization that uses religious criteria in hiring, then many of the cooperative relationships between government and charitable institutions would have to be torn asunder. Colleges and universities that require statements of faith from faculty shouldn’t have access to federal money in the form of student loans and grants. The Salvation Army wouldn’t be able to be one of the government’s largest partners in anti-poverty and workforce preparedness programs. These organizations receive public funding not because they’re religious, but because they provide a valuable public service. That service is evaluated, not by religious criteria, but by neutral public criteria. To demand that they abandon their religious missions in order to be eligible for public funding is not neutral toward religion, but hostile.
Perhaps Jay Bookman means to be hostile toward religion. I hope not.
