Religious Freedom Next Year and Beyond

Freedom of Worship - Norman Rockwell 2

I recently attended a conference that included a number of participants who have thought deeply about religious freedom and have acted effectively in its defense. Naturally, everyone was talking about the high-profile legislative battle in Indiana. That got me thinking about what might and should happen in Georgia, during next year’s legislative session, when protecting religious freedom will once again be on the table.

In the unlikely event that you’ve forgotten, here’s what a typical religious freedom bill—modeled on the 1993 federal legislation that Congress passed virtually unanimously—purports to do. In the first instance, it reestablishes a standard the Supreme Court employed to deal with a number of cases under the First Amendment: if a plaintiff can show that his or her religious freedom is substantially burdened by a generally applicable law, then the government has to demonstrate that the law is intended to carry out a compelling state interest and show that it is the least restrictive means to achieve that interest. Contrary to what its opponents claimed, the law does not give anyone a license to discriminate on the basis of religion; rather, it reinstates a time-honored judicial balancing test. Judges decide whether religious freedom—our “first freedom”—or the state interest prevails. No responsible advocate of religious freedom thinks that it ought to prevail against every possible countervailing claim, that every state interest ought to give way before it. We simply insist that religious freedom is an important consideration that ought to be taken into account.

The substance of the law

In the light of what happened in Indiana, Arkansas, and here in Georgia, it seems highly unlikely that any state legislature will pass a simple and straightforward version of the 1993 federal legislation. Opponents were all too effective in tying religious freedom to discrimination, even in the absence of any evidence that the federal law or its many state counterparts had ever effectively been used to license or justify discrimination. Unfortunately, the “fix” that lawmakers adopted to respond to these objections tends to sweep much too widely, making state and local anti-discrimination rules in effect trumps against any religious freedom claim. While certainly a permissible (if, I would argue, inadvisable) declaration of a compelling state interest, it appears to leave no room for certain sorts of religious freedom claims. Thus, for example, a church or other faith-based organization might wish to engage in mission-based hiring, employing only those willing to live up to certain creedal or behavioral standards. These religious hiring rights have long been acknowledged or accommodated in law, but could be described as “discrimination” by those unsympathetic to the standards or practices at issue. Without explicit provision for them in the law, these traditional religious hiring rights could be deprived any any sort of religious freedom defense.

Then there is, of course, the wedding industry, where some practitioners have absolutely no objection to serving gays in ordinary circumstances, but cannot in good conscience provide their services to a same-sex wedding ceremony. Their critics treat their services as public accommodations, akin to restaurants and hotels, and insist that there is absolutely no difference between the photographer who is happy to do a portrait of any individual or family, but not of any wedding ceremony, and the racist hotelier or restaurateur who refuses to serve African-Americans under any circumstances. In the first instance, this argument stretches the notion of public accommodation far beyond its traditional bounds. Furthermore, while the experience of African-Americans in the Jim Crow South certainly made it clear that the traditional right of a businessperson to serve whomever he or she pleases (an aspect of freedom of association) has to give way to the norm of non-discrimination in matters of race, it is far from clear that gays who seek wedding services are similarly seriously discommoded by the few bakers, photographers, or wedding planners who have religious scruples about same-sex marriage. Common sense tells you that there is a difference between being unable to find a place to stay or eat, or having to go around the corner or to the next town to find a wedding photographer. What’s more, many wedding-related businesses are, to say the least, “closely-held.” That means that exempting them from anti-discrimination laws in this limited instance—not, to repeat, in ordinary circumstances—rests on the solid constitutional ground of the recent Supreme Court decision in the Hobby Lobby case; the Court there held that family businesses, at least, enjoyed the protection of the First Amendment and the federal RFRA. Finally, at the very least both baking and photography can be treated as arts, hence as forms of expression. It has long been the understanding that the First Amendment prohibits government (or individuals using governmental authority) from compelling people to say what is not on their minds.

There is, in other words, a reasonably strong argument that the “fix” proposed in Georgia trenches on traditional freedoms of religion, association, and expression. While no one would argue that these freedoms are or should be absolute, they should not be casually or thoughtlessly trampled in an effort to conciliate the demands of one intense constituency. I leave it to the legislative drafters to find language that affirms both compelling norms—religious freedom and non-discrimination—and finds a way to combine them coherently. Surely we are not so unreasonable and inept that we cannot come up with language that accommodates religious liberty and assures gays and lesbians that they will neither be denied service in ordinary circumstances nor be too inconvenienced In their search for wedding services. (Indeed, there are “conscience clauses” from the medical field that may offer a good model here: those who have conscientious objections to, say, abortion, can be excused from participating in a medically necessary abortion, so long as someone else stands ready to help with the procedure.)

Making the case for a reasonable religious freedom law

This year, I think advocates of religious freedom legislation were taken somewhat by surprise by the scope and character of the opposition to them. Since religious freedom had almost always been an “apple pie” issue, they may have thought that, especially in a state that is generally both conservative and religious, opposition would be either nominal or relatively easily overcome. They didn’t reckon on the vociferousness of those who frequently misrepresented the proposal, on the almost complicitous supineness (or was it alacrity?) with which the media gave them a megaphone, and on the unwillingness of the business community to protect religious liberty, not to mention the enterprises and livelihoods of their much smaller brethren. Next year promises to be worse, not only because opponents of religious freedom legislation will be emboldened by their success this year, but because it is very likely that a narrowly-divided Supreme Court will hand down a decision finding a constitutional right to same-sex marriage, raising passions even higher.

Proponents of religious freedom can’t afford merely to be reactive. We have to start right away to lay the groundwork for success in next year’s legislative session. That means making a winsome case in public for the necessity of such legislation, not simply to protect those who conscientiously dissent from same-sex marriage, but also all those—especially members of minority religions—who in carrying out their religious duties find themselves on the wrong side of an otherwise neutral law. Those in the media who cover this issue must also be educated, again in a setting where the stakes are not high and they can feel free to ask questions and engage in the give-and-take of a conversation. That also means sitting down with legislators when things are relatively calm and patiently explaining the importance of religious freedom and the nuts and bolts of protecting it. Finally, that means putting business leaders on notice that if they criticize religious freedom legislation as unwelcoming in our state, they will be pointedly asked about the business they do in countries all over the world that do not respect human rights, let alone the rights of gays and lesbians.

Once the session begins, proponents of religious freedom legislation have to be prepared immediately to answer distortions of the bill’s provisions and purpose. They also have to be prepared to call out zealots on their side, demanding the same responsible behavior of their opponents.

I remain confident that a bill can and will pass, but it is unlikely to be a cakewalk. The arguments are on our side, but critics of the legislation command the high ground in the media.

The future of religious freedom

Abraham Lincoln once said, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions.” Laws can be enacted, and then repealed. Even constitutional provisions can be repealed or reinterpreted. We cannot rest content that by the enactment of a law, we have genuinely and for the long term protected religious freedom.

More important than any law is “the culture,” by which I mean not only the arts, media, and education, but also the complex web of organizations and relationship that constitute “civil society” and the deeper sources in history and principle for public opinion. If these institutions, understandings, and “habits of the heart” do not support religious freedom, then no law purporting to protect it will stand for long.

Our long-term task is thus one of cultural restoration and reconstruction, in which politics plays only a small part. To be sure, laws and political controversies can offer so-called “teachable moments,” when lots of people are paying attention, but most of the teaching will be done in other, often more intimate and less fraught settings, like schools, churches, families, neighborhoods, and workplace relationships. And most of the teaching will not, strictly speaking, be about religious liberty.

Some have suggested that cultural and religious conservatives should be prepared for a “Benedict option,” a time of withdrawal from “the world” in order insularly to protect themselves, their families and communities, and their understanding from an inveterately hostile culture. I’m not yet prepared to urge my fellows down that path. I have more confidence that truth and nature will assert or reassert themselves. (I could make such an argument using the language of Christian theology, but would prefer in this venue not to talk about creation, evil, and God’s sovereignty.)

What we have to do is be attentive to building healthy families and communities, to be vigilant about telling the truth about ourselves and our relationships, to be open to respectful engagement with those who disagree with us, and to tell and promote stories in art, film, music, and literature that teach moral truths without being overtly “preachy.” Great art and great literature command the attention of those who encounter them. They nourish our minds and our souls. They provide the bases for fruitful conversations and friendships, even among those who happen at the moment to disagree.

This isn’t a “quick fix,” but rather the work of many lifetimes. We didn’t lose our way overnight. We won’t find our way back tomorrow.


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The Religious Liberty Endgame


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

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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.