Capitol Update – April 1, 2015

Capitol Update

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.

 

Religious Liberty and “Big Business”

Drawing a City

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 negativereaction 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?

The Religious Liberty Endgame

800px-Georgia_State_Capitol_Atlanta_Georgia

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.

Michael Bowers’ Religious Freedom Contretemps

Flag with Declaration

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.

Religious Hiring and State Religious Freedom Legislation

 US Supreme Court

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.