Capitol Update – Crossover Day Results

by Eric Cochling | Mar 5, 2014

Should you have questions or comments about the content of this update, please email Brian Abernathy

Monday, March 3, marked “Crossover Day” at the Georgia State Capitol. On this day, a bill must crossover from the House to the Senate or vice-versa if it is to remain viable this session. Crossover Day typically goes until midnight and involves lots of lobbying, drama, and intensive floor debates. While the Senate finished their work early this year, the House stayed in session until 11:30. Below is a summary of some of the more newsworthy bills and their fate*:

*Please note that vote totals are indicated after the bill number. The first number is the total votes cast in favor of a bill (Y=yea), the second is the total votes cast against a bill (N=nay).

House Bills That Passed Crossover Day:

• HB 702: 138Y – 37N – This bill allows for privately funded monuments containing the Ten Commandments, a portion of the Declaration of Independence, and a portion of the Georgia Constitution to be placed on the grounds of the State Capitol.

• HB 707: 115Y – 59N – This bill prevents the State Insurance Commissioner from enforcing provisions in the Affordable Care Act (ACA), local and state agencies and governments from spending money attached to the ACA, and prevents the University of Georgia from operating the navigator program that assists people who are seeking coverage under the ACA.

• HB 766: 163Y – 1N – The “Work Based Learning” Act would permit schools – in collaboration with the Department of Labor and the Technical College System of Georgia – to award secondary credit for approved off campus work to students age 16 and over.

• HB 772: 107Y – 66N – This bill requires that adult applicants for and recipients of food stamps or benefits under TANF (Temporary Assistance to Needy Families) submit to drug testing if a state caseworker from the Department of Family and Children Services determines that there is a “reasonable suspicion” of drug abuse. Eligibility of children under both programs is not affected by this legislation.

• HB 875: 119Y – 56N – This bill allows land owners/lessees the final decision as to whether properly licensed citizens may carry concealed firearms on their premises, potentially significantly expanding the places a licensed individual could carry a firearm to include churches, bars, and certain government buildings where security is not provided. It also allows for school boards to designate a school employee to be armed.

• HB 885: 171Y – 4N – This bill allows for the usage of medical cannabis derivatives for the treatment of patients who suffer from severe seizure disorders and encourages research on additional medical uses of cannabis.

• HB 886: 164Y – 3N – This bill would require the governing body of Charter Schools to hold a minimum of two public hearings to review their budget before its adoption each year.

• HB 897: 121Y – 51N – This bill would eliminate obsolete provisions, and update and clarify other provisions relating to elementary and secondary education. It is noteworthy that aspects of this legislation (section 36) would directly impact the approval process for homeschooling.

• HB 990: 118Y – 57N – This bill would require legislative approval for any future expansion of Medicaid in Georgia.

• HB 1080: 173Y – 3N – This bill would allow for the placement of a privately funded monument dedicated to the Rev. Martin Luther King Jr. to be placed on the grounds of the State Capitol.

Senate Bills That Passed Crossover Day:

• SB 98: 35Y – 18N – Prevents coverage for abortions under qualified health plans offered within the state, including any exchanges created by the Affordable Care Act.

• SB 167: 34Y – 16N – This bill calls for the creation of an advisory council to review Common Core Standards and propose changes that are “in the best interest of students, their parents, teachers, and taxpayers.”

• SB 281: 40Y – 13N – This bill mandates that state employees and teachers be offered a high-deductible insurance option in the State Health Benefit Plan.

• SB 350: 31Y – 18N – This bill would begin a process of privatizing child welfare services through contracts with community-based providers.

• SB 365: 53Y – 0N – This bill focuses on lowering barriers to employment for those returning from prison.  The legislation contains many of the recommendations from our Prisoner Reentry Working Group.

• SR 783: 38Y – 13N – This resolution allows voters the opportunity to decide whether or not they want to eliminate the state property tax levy through an amendment to the state constitution.

Bills That Did Not Crossover:

• HB 1023 & SB 377: While different bills, these pieces of legislation shared a common intent. If passed, they would have provided that there must be a “compelling state interest” for a state to burden the free exercise of religion. More specific details on this legislation are available on GCO’s blog.

• SB 404: This bill would deny the ability of non-legal immigrants who have been granted “deferred action” status or permission to temporarily work for humanitarian reasons the ability to receive a Georgia Driver’s License.

• HB 759: As GCO has already discussed, the Tax Credit Scholarship program in Georgia is in high demand.  HB 759 would have increased the tax-credit cap to $100 million.

• SB 191 & HB 309 – Neither form of “Ava’s Law”, which would have required medical insurance coverage for treatment of Autism, made it through crossover day.

• HB 524 – This bill would have made it easier for adopted individuals to access their original birth certificates and the information about birth parents they contain.

Bills that are continuing to fight for implementation:

• HB 771 never saw a vote on the House Floor, but supporters are still working see its efforts attached to another piece of legislation this year.  The bill would lift the statute of limitations related to civil damages brought by victims of childhood sexual abuse.

• Senate Resolution 7 would provide Georgians with an opportunity to vote on a constitutional amendment to separate the Georgia Ethics Commission from the office of the Governor.

• House Resolution 486 would permit local municipalities created after 2005 to form city school systems.

____________________________ Thanks to Eric Cochling, our VP of Policy Advancement, 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.

Proposed Religious Freedom Legislation Doesn’t Survive Crossover

by Eric Cochling | Mar 5, 2014

Background

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.