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.
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.