Supreme Court of the United States

Name: Supreme Court of the United States
Location: United States

To Rebuild Trust in Law Enforcement, We Must Reform Civil Asset Forfeiture Laws

By Buzz Brockway

In the wake of the tragic deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, and now Rayshard Brooks, issues of racism and questions about use of force by police dominate the news. Understandably, emotions are high as people want answers and change. The Georgia Center for Opportunity has worked diligently over the years on issues of criminal justice reform. We see this as a key issue in pursuit of our goal of a society where everyone has the opportunity to flourish. We stand with our African-American sisters and brothers as they call for justice.

One key area in need of reform is called civil asset forfeiture. Civil asset forfeiture is a process in which law enforcement officers take assets from persons suspected of involvement in illegal activity without necessarily charging the owners with wrongdoing. The assets are thought to be either obtained as a result of illegal activity, or used in the commission of a crime. A civil court proceeding takes place to determine if the assets are to be forfeited and the funds used for law enforcement purposes.

As solutions are being offered, it is important to keep in mind the vital role law enforcement play in protecting the vulnerable and seeking justice for victims. Human flourishing and freedom cannot take place in unsafe communities. Therefore, law enforcement can and should be a key part of the solution to issues such as racism and discussions about the proper application of force against those suspected of criminal activity.

While the facts surrounding each of the tragic deaths listed above differ, one common thread moving through each case is lack of trust. Lack of trust that officers will use force responsibly, lack of trust that officers will properly deal with arrest warrants, and lack of trust that prosecutors will prosecute crimes equally, especially crimes committed against the African-American community. As we consider potential reforms, focusing our efforts on restoring trust between law enforcement and the communities they serve would seem to be efforts that could bear much fruit.

To that end, let me suggest we look at increasing transparency and oversight of Georgia’s civil asset forfeiture laws. The Georgia Center for Opportunity recently completed a study of these laws, how the system works, and made recommendations around increased transparency and accountability.

Civil forfeiture of assets from law enforcement activities has become an important funding mechanism for many law enforcement agencies as well as multi-jurisdictional task forces crucial to fighting criminal gangs. However, the issue raises concerns about justice, freedom and prosperity. While a 2015 law made major improvements in civil asset forfeiture reporting requirements, it is not possible to know whether there was a conviction in the case that resulted in the property being forfeited. To restore trust, collecting this information is crucial.

Additionally, understanding the outcome of the case would allow us to determine if Georgia civil asset forfeiture laws violate the 8th Amendment prohibition on excessive fines. The recent Supreme Court decision in Timbs v. Indiana makes it clear that the 8th Amendment applies to the state. As it relates to civil asset forfeiture, is it an “excessive fine” to forfeit a car worth several thousand dollars for a minor drug conviction? To restore trust in law enforcement, this question must be answered.

Rebuilding trust between law enforcement and the community will take time and many policies and practices must be reviewed and debated. Increasing transparency and accountability in Georgia’s civil asset forfeiture laws is an important step in the right direction.

To learn more about Civil Asset Forefeiture in Georgia click here.

CAN THE POLICE REALLY CONFISCATE MY PROPERTY WITHOUT CONVICTING ME OF A CRIME?

civilassetforfeiture

Recently, a broad coalition of groups sent a letter to President Obama urging him to require the Attorney General to “review and reconsider” a “flawed” Office of Legal Counsel memo—issued in 2007 (i.e., during the Bush Administration)—that argued that the Religious Freedom Restoration Act provided the basis for exempting faith-based organizations that contracted with the government from legal requirements that forbid taking religion into account in certain hiring decisions. The letter asserts that the memo relies on “flawed legal analysis” and offers a “broad and erroneous,” indeed “dangerous,” “interpretation of RFRA,” “permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.”

This is just the latest skirmish in a long-running battle. Here’s a snippet of something I wrote about it ten years ago:

One of the central bones of legislative contention, evident once again in the recent House debate over the Workforce Investment Act, is connected with Title VII of the 1964 Civil Rights Acts, which exempts faith-based organizations from legal strictures against religious discrimination. Churches and other faith-based organizations are, in other words, permitted to take religion into account when they hire employees, a provision upheld unanimously by the Supreme Court in the 1987 case Corporation of the Presiding Bishop v. Amos.

Opponents of the [Bush Administration’s] faith-based initiative cry foul when this legal exemption is explicitly extended to government contractors, as it was in the original [1996] charitable choice legislation, and as it has been proposed in several recent pieces of legislation. They want no part, they say, of government-funded religious discrimination, regardless of what religious groups are permitted to do on their own dimes.

The arguments, or rather slogans, of those opposed to the religious hiring rights of faith-based government contractors haven’t really changed. Taking religion into account is, they insist, discrimination, made worse by the fact that those engaging in it are taking government dollars.

The current version of the dispute involves the way in which the OLC memo deploys the Religious Freedom Restoration Act on behalf—of all things—the religious liberty of government contractors. RFRA—passed overwhelmingly during the Clinton Administration but recently by and large abandoned by those on the political Left—requires that laws and regulations that limit religious freedom be justified by a compelling state interest and represent the least restrictive means to attain that interest. It is supposed to provide individuals and organizations a basis for claiming an exemption on generally applicable laws that burden their religious liberty. Most frequently such claims would be made in court and weighed by a judge. The OLC memo represents an administrative, rather than a judicial, determination that even laws that explicitly prohibit government contractors from hiring in accordance with religious criteria—not discriminating against people, but hiring those who support the mission of the organization (a right, by the way, that would seem uncontroversial in almost any other setting)—have to accommodate the religious freedom of the contractors.

You might ask how an Administration could defy the express will of Congress if it passes a law that forbids taking religion into account when hiring for participation in a particular government-funded program. The answer to this question begins with the following consideration: unless the law explicitly repudiates RFRA, the executive is charged with enforcing both laws and reading them in a way that renders them, so far as possible, consistent with one another. So the executive must first ask, in accordance with RFRA, whether the burden on religious freedom represented by the hiring prohibition represents a compelling state interest. The most obvious answer is that, since there are plenty of laws that actually acknowledge the religious hiring rights of government contractors, denying those rights in this instance can’t be a compelling state interest. In other words, RFRA trumps the prohibition in the law.

What’s more, I think that this conclusion is not only good law, but also good policy. Let me summarize the argument I made at greater length ten years ago. A diverse country is best served, not by a uniform, monolithic, and homogeneous social service sector, but by an array of organizations that represent genuinely different approaches to addressing our social problems. A healthy civil society is a diverse civil society. Government should respect and foster that diversity rather than diminish it. The demand that “government not fund discrimination”—usually connected with a demand that government expand its programs for the needy—is for all intents and purposes a demand that government secularize society, that nongovernmental organizations be simple extensions of their government sponsors. This isn’t good for the needy or for the society at large.

Let’s hope that the Obama Administration continues to ignore the importuning of those whose crabbed view of religious liberty would increasingly diminish the role of religion in society.

On July 25th, AJC columnist Jay Bookman dismissed Georgia House Speaker David Ralston’s “Pastor Protection Bill” as an essentially meaningless symbolic gesture. I’m uncharacteristically inclined to agree with him.

In its current form the bill simply states that “[n]o minister of the gospel or cleric or religious practitioner ordained or authorized to solemnize marriages according to the usages of the denomination, when acting in his or her official religious capacity, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion.” This would seem to follow pretty directly from the First Amendment Free Exercise Clause, as University of Maryland law professor Mark Graber has observed.

While I’m not averse to symbolism and, indeed, regard it as an important teaching function of the law, the prospect that pastors will actually be compelled to perform same-sex marriages is a remote one. To be sure, in our current circumstances anything is possible, but that’s not one of the pressing concerns keeping me up at night.

Here are the things that, to my mind, are causes of concern:

The tax-exempt status of churches and other faith-based institutions that remain faithful to the traditional understanding of marriage
The eligibility of faith-based institutions (above all, schools, universities, and social service agencies) to compete on a level playing field for government funding if they continue to act in accordance with their long-held belief that marriage is between a man and a woman
The ability of churches and other faith-based institutions—if they so choose—to demand doctrinal and behavioral conformity, not just of ministers, but of all employees

In a nutshell, I’m concerned that we’re facing a significant challenge to the ability of churches and other faith-based institutions to remain theologically and morally faithful while fully and equally participating in civil society.

And before I discuss these substantive concerns in a bit more detail, let me add a procedural worry. I fear that Speaker Ralston and many other Republicans, having been chastened by the religious freedom contretemps earlier this year in Indiana, Georgia, and elsewhere, will regard this pastor protection legislation as all they need to do. If true friends of religious liberty accept this down payment on a robust commitment to our first freedom as the full price, they will have left our religious institutions vulnerable to all sorts of threats. I recognize that some of my concerns will have to be addressed at the federal level by something like the First Amendment Defense Act, but there is no reason why Georgia could not provide similar protections at the state level. And I also recognize that laws are mere parchment barriers, weaker than constitutional provisions (which may themselves be no more than papier-mâché); neither will protect religious liberty from a public (or an elite) that has grown indifferent or hostile to it.

I turn now to the challenges, beginning with tax-exempt status. During the oral arguments for Obergefell v. Hodges, Solicitor General Donald Verrilli conceded to Justice Samuel Alito that the tax-exempt status of religious institutions that uphold the traditional understanding of marriage is “certainly going to be an issue.” The dissenters took note of this exchange. Chief Justice John Roberts said this:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.… There is little doubt that these and similar questions will soon be before this Court.

Justice Clarence Thomas seconded this concern:

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” … In our society, marriage is not simply a governmental institution; it is a religious institution as well…. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Samuel Alito spoke of the larger consequences of the Court’s decision:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women … The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.… We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Let me emphasize this last point, for it is a clear allusion to the context of Justice Alito’s exchange with the Solicitor General, which involved the Supreme Court’s affirmation of the IRS’s revocation of the tax-exempt status of Bob Jones University over its policy forbidding interracial dating. If the analogy—insisted upon by the Court’s majority—between opposition to same-sex marriage and opposition to interracial marriage holds, then the former amounts to the same sort of bigotry as the latter and, perhaps, deserves the same legal treatment.

In the Bob Jones case, the Supreme Court held that the First Amendment Free Exercise Clause does not protect the University from the IRS’s revocation of its tax exempt status. The Court’s reasoning was that, in the first place, tax exempt status is granted under the Internal Revenue Code only to institutions and organizations that “serve a public purpose” and are not “contrary to established public policy.” While the University might well serve a public purpose, augmenting or supplanting public efforts at higher education, its practice of racial discrimination was certainly contrary to established public policy. And if free exercise claims, in the best instance, require strict scrutiny, overcoming racial discrimination is surely the kind of compelling state interest that justifies an abridgement of that right.

It doesn’t require much imagination or legal expertise to see how this line of reasoning could be applied to churches and other faith-based institutions that act “contrary to established public policy” in upholding the traditional understanding of marriage.

This doesn’t mean that the IRS must or will revoke their tax exempt status, only that it can, and that the First Amendment provides no sure defense against that action. If countering discrimination based on sexual orientation comes to be regarded as a compelling state interest, then the free exercise rights of religious institutions will likely have to give way if the IRS bows to the pressure that will surely be brought to bear on it to use its powers for that end.

I think that a case can be made on behalf of continuing to extend those exemptions, both in terms of the manifold human needs all churches address and in terms of preserving the pluralism that is the essential ground of free institutions and a free people, but we have to make that case over and over again, in the face of a faction that isn’t particularly interested in listening to it. I take some solace from the fact, that, at the moment, public opinion seems to favor religious freedom, but that delicate flower needs to be carefully cultivated.

Now, if tax exemptions are a problem, then you know eligibility for government grants will be. To be sure, this isn’t an issue for houses of worship as houses of worship (which, generally speaking are not and should not be eligible for government grants), but it is one for schools and colleges, as well as for social service agencies. While the Supreme Court has frequently upheld the channeling of government aid to religious institutions under certain circumstances (see, for example, Mitchell v. Helms, Zelman v. Simmons-Harris, and the Arizona Christian School Tuition Organization case), it has also held that governments are perfectly within their rights to deny otherwise generally available aid and facilities to religious organizations (see, for example, Locke v. Davey and CLS v. Martinez).

Governments can attach any number of conditions to the aid they provide. Adoption agencies may be required to place children with couples without regard to the gender of the partners. Universities may be required to provide housing—if they provide it at all—to couples that are married in the eyes of the state, regardless of whether those marriages have the sanction of the sponsoring religious body. And if you put the recent EEOC ruling on sexual orientation together with the way in which the Department of Education is interpreting Title IX of the Education Amendments of 1972, it’s pretty easy to see how a lot of government money could be riding on conformity with what appears to be the new normal in regard to sexual orientation and marriage.

For higher education institutions, access to government money is a big deal. According to the U.S. Department of the Treasury, 55% of spending on undergraduate education in 2009-10 came from federal aid (which amounted to $124 billion that year). While there are a few colleges (Hillsdale and Grove City, for example) that take pride in not accepting a dime of federal money, most would at the moment not be able to survive without it.

Again, this doesn’t have to happen. Congress could pass legislation that protects religious freedom, or agencies could voluntarily refrain from impinging on it. But pressure will be brought to bear on behalf of those who, as they would put it, don’t want to subsidize discrimination.

This brings me to my next concern, the religious hiring rights of churches and faith-based organizations. Title VII of the 1964 Civil Rights Act permits them to take religion into account when hiring. And the “ministerial exception” based in the First Amendment—recently vindicated in the Hosanna-Tabor case—means that a number of federal laws granting employees enforceable rights cannot be applied to those a church holds out as ministers. But these provisions do not provide comprehensive protection of religious hiring rights. There is certainly a gap between the legislatively-acknowledged right to hire coreligionists and the constitutionally-grounded ministerial exception. What if someone who signs a statement of faith as a condition of employment comes out as gay and/or enters into a same-sex marriage? Unlike the Employment Non-Discrimination Act, the recent EEOC ruling about sexual orientation discrimination does not contain exceptions for religious organizations. It isn’t at all clear that Courts will find that the Free Exercise Clause will protect them from EEOC complaints, in the event that these organizations choose to enforce doctrinal or behavioral requirements on their employees.

Now, this parade of horribles does not have to march into our sanctuaries. The threats that loom on the horizon do not have to materialize. Those who currently hold the upper hand in government may practice forbearance, either out of a genuine commitment to pluralism and religious freedom or out a fear of overplaying their hand and alienating public opinion.

We on our part must be both vigilant and winsome, vigorously defending and advocating for our rights when they are threatened and offering a model of the charity and forbearance that we hope others will also display. Our society is pluralistic, reflecting deep disagreements about how we ought to live. History teaches us that faith doesn’t require hegemony to prosper. But it does require that those who have it live it, loving their neighbors as themselves. There is room both for political and legal action, and for the building and maintenance of personal relationships. If we forgo the former, there may be no room for the latter. If we focus on the former, we run the risk that those parchment barriers will be swept away by the animosity we have done nothing to disarm and dispel.

I have to confess that I wasn’t all that surprised by the Supreme Court’s decision in Obergefell v. Hodges, which held that the 14^th Amendment Due Process and Equal Protection clauses imply a right to marry (due process) and require that that right be extended to those who wish to marry same-sex partners (equal protection). Justice Anthony Kennedy, who wrote for the narrow (5-4) majority, had pretty much been telegraphing his intention since Lawrence v. Texas (2003) and Romer v. Evans (1996), and indeed since co-authoring the infamous “mystery passage” in the joint opinion in Planned Parenthood v. Casey (1992). In the former two cases, he described opposition to homosexuality as expressing only an “irrational animus,” thereby placing the letters of the Apostle Paul, not to mention millennia of both secular and religious teaching from a variety of traditions, in the same category as the most hateful inarticulate screed scrawled on a bathroom wall. Indeed, in his Lawrence dissent, Justice Antonin Scalia argued that the clear implication of the majority’s reasoning was that, its protestations to the contrary notwithstanding, there was no constitutional principle that could justify restricting marriage to opposite sex couples.[1] In Planned Parenthood, Kennedy and his co-authors laid the foundation by defining liberty in terms of what has come to be known as expressive individualism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now, my undergraduates understand and are even capable of reproducing Justice Kennedy’s reasoning. Of course, they state it much more simply: “I should have the right to marry whomever I please.” This straightforward combination of liberty and equality—our two American watchwords—explains why so many people exuberantly welcomed the Supreme Court’s decision.

But if they had given some thought both to the understanding of marriage and the canons of legal and judicial reasoning—as we should rightly expect of Justice Kennedy and his colleagues—my undergraduates, not to say the American people in general, might have had second thoughts.

Let me begin with the second point. The 14^th Amendment Due Process clause has been used to protect our liberties against certain kinds of government encroachment. While the language of the clause is procedural—and thus applies most obviously (as does its 5^th Amendment counterpart) to judicial proceedings—it has long been held also to protect substantive rights, hence the almost oxymoronic term “substantive due process.” When deciding which liberties were substantively protected by this clause, the Court, in order to discipline itself so as to leave as little room as possible for free-floating judicial creativity, has held that the 14^th Amendment protects only those liberties (as Chief Justice John Roberts says in his dissent, quoting a very strong precedent) that are “’objectively, deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” I repeat: if the liberty protected by the 14^th Amendment is not directly tied to history or tradition, if there are not some authoritative standards to guide and control the justices, then we run the risk of liberty being whatever a majority (in this case, a “bare majority,” which is how Justice Kennedy speaks of narrow 5-4 majorities of whose conclusions he does not approve) the Court thinks or feels it is. Absent these standards, we no longer have the rule of law or settled precedent, but rather that rule of judicial majorities, giving and withholding protection as they see fit. Many people might approve of the substantive result this time, but who knows where the next such decision will take us. That Anthony Kennedy thinks he knows what history tells us about the expanding and changing definition of liberty reveals a breathtaking (and, to my mind, entirely unwarranted) confidence in his judgment.

But, you might ask, isn’t the freedom to marry rooted in our traditions? Hasn’t the Supreme Court, in a number of cases cited by Justice Kennedy, upheld that very right? Well, yes, but the right to marry rooted in our traditions is the right to traditional marriage (that is, between a man and a woman). It isn’t the right to redefine marriage so as to encompass same-sex (and perhaps other) relationships. The problem with Justice Kennedy’s opinion is that his insistence that “the nature of marriage” involves two (and only two) people derives what force it has from the traditional understanding that “the nature of marriage” involved a man and a woman. Having jettisoned the tradition on one point in the name of an alleged individual right to marry whomever one pleases, it is hard, if not impossible, consistently to preserve it on another. Indeed, his mysterious understanding of liberty—“defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—would seem to leave more than enough room for each of us to form his or her own understanding of how and under what circumstances we wish to be related to others.

Now, as Justice Thomas points out in his dissent, the traditional understanding of liberty, by giving us a claim—albeit not an absolute claim—against government interference in our lives offers some, perhaps even much, of the freedom Kennedy has in mind. There’s a lot I can do with other consenting adults in the privacy of my own home. But as Kennedy recognizes, marriage isn’t just a freedom in this sense; there are all sorts of benefits, from tax advantages to child custody arrangements that accompany it, as well as an apparently publicly ascribed “dignity” that attends marriage, as opposed to “living in sin,” as we used, quaintly, to put it. So what’s at stake is not so much a liberty protected by the Due Process clause as equal access to benefits—leaving aside the issue of dignity, which makes for problems all its own—guaranteed by the Equal Protection clause.

Unfortunately, Justice Kennedy doesn’t undertake the kind of legal analysis that usually accompanies equal protection claims. There is no talk either of a “rational basis” for a legal distinction applied to an unprotected class of people or of the “strict scrutiny” of a distinction involving a protected class. To be sure, he has denied in past cases that laws that single out gays can have even a rational basis. Perhaps he doesn’t think he has to repeat himself here, as the irrational animus is, in his view, self-evident. But however much refusing to serve a gay in a restaurant or singling out for legal sanction expressions of gay sexuality may reflect such an animus, it is not at all self-evident that adhering to the traditional definition of marriage does so.

To be sure, there are plausible and perhaps even good arguments on both sides of the marriage issue. But those are arguments to be weighed and evaluated by a legislature, not settled conclusively by a court. By short-circuiting the political process, Justice Kennedy and his colleagues in the majority have forestalled a full and fair airing of the issues and have virtually guaranteed that those on the losing judicial side will question the legitimacy of the result so many of their fellows are celebrating. Further, those who approve of the result will be tempted to regard those who disagree with them simply as sore losers who don’t deserve any respect, which will serve only to poison still more of our public square.

There are other benefits as well that we’ve lost by not working this disagreement out legislatively. A legislature with men and women of good will on both sides might have arranged for robust guarantees of religious liberty for those who conscientiously dissented from a pro-same sex marriage outcome. And rather than opening up a Pandora’s box of different marital arrangements as Justice Kennedy’s conception of liberty does, a legislature might have carefully reworked the traditional definition of marriage to accommodate in some way the genuine personal challenges Justice Kennedy so eloquently describes at the beginning of his opinion. But feeling for the aggrieved and finding a way to help them is the work of legislators, responsible to the voters, not judges who serve for life.

That we have operationally and happily ceded so much truly legislative authority to unelected judges is, to my mind, the most troubling result of Obergefell. In my next post, I will discuss some of the religious liberty challenges that we will, in short order, face.

[1] Justice Kennedy was similarly disingenuous in Windsor v. U.S. (2013), which struck down the portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman. Marriage, he averred, was traditionally understood to be a state matter, which was convenient at the moment, but swept away with nary a mention in Obergefell.

Last summer, the Obama Administration proposed a rule adding sexual orientation and gender identity (SOGI—get used to the acronym) to the list of classes protected against discrimination by federal contractors. In so doing, it built upon other anti-discrimination executive orders issued by Presidents Johnson and Nixon. The difference between the Obama Administration’s rule and those promulgated by its predecessors is that the latter explicitly provided exemptions for religious employers, who were permitted to engage in mission-sensitive hiring even if they provided goods and services to the federal government. Under the old rules, a faith-based organization could hire co-religionists to work, for example, in a federally-funded Welfare-to-Work program (and, of course, could quite rightly not discriminate in providing benefits to clients). Under the new rules, finalized in April, there is no exemption for faith-based organizations, many of whom would seem to have to abandon their historical commitments to sexual fidelity in the context of man-woman marriage if they wish to continue to be eligible for federal contracts.

And now the other (or another, perhaps the first of many) shoe is about to drop: there is word that the rule applied to federal contractors will soon be extended to grant recipients, at least in respect to one area of federal activity, humanitarian aid. As this move has not received a lot of attention (perhaps designedly so), it is not clear how far-reaching this change is. At the moment, it seems relatively safe to say that eligibility for some grants will likely be conditioned on a renunciation of traditional religious teaching (not just Christian, but also Jewish and Muslim) regarding human sexuality.

What prevents the Obama Administration from extending this requirement to additional categories of grant recipients is not at all clear. Or rather it is clear: only pushback from the friends of religious freedom will prevent the federal government from eventually conditioning all federal aid on “non-discrimination,” even at the expense of fidelity to traditional religious teaching.

How far could this eventually go? Consider, for example, the extraordinarily heavy dependence of most colleges and universities (there are a few noteworthy exceptions, among them Grove City, Hillsdale, and Wyoming Catholic) on federal aid. Suppose that colleges and universities that included behavioral expectations in their statements of faith were told that they could not hold their employees to these expectations, as doing so would constitute SOGI-based discrimination. Some might stand firm and join the proud ranks of the non-federally funded. Others, I fear, would feel compelled to assure their (merely) institutional survival by giving in. The result would likely be a much less genuinely diverse array of higher education options and a loss of a great intellectual and moral source of religious life in this country.

And that’s not the end of it. Don’t forget the brief exchange between Justice Samuel Alito and Solicitor General Donald Verrilli in the oral argument for the Obergefell v. Hodges (same-sex marriage) case. Under questioning by Justice Alito, Verrilli conceded that the tax-exempt status of religious institutions that did not recognize same-sex marriage could or would be an issue. For those who regard tax exempt status not as an acknowledgement of freedom from state interference but as an instrument of public policy, aimed at promoting the public good (as they conceive it), it’s only a few baby steps from denying government funding to revoking a tax exemption. I’d like to think that many of us will continue to give at the same level to the charities we favor regardless of whether we receive a tax break for doing so, but not all of us will. At the very least, roughly 30% of that charitable contribution would likely be taken by taxes, and that’s only from the contributor. Another chunk would be taken from the formerly tax-exempt institution. Is your favorite faith-based institution prepared to deal with the loss of a significant portion of its annual budget?

Some might argue that it’s healthy and bracing for faith-based institutions to get back to basics, to have a fresh and direct experience of what it means to be a pilgrim, sojourner, or (as Duke University theologian Stanley Hauerwas is fond of putting it) resident alien. Perhaps. Even more, it might be clarifying for the soulless Leviathan of the ever-expanding modern regulatory and administrative state that would reveal itself for the secularizing monster it really is. Perhaps.

But pardon me for continuing to harbor the hope that genuine religious pluralism that flourishes in a healthy civil society is good not only for the churches, synagogues, mosques, temples, schools, colleges, universities, and charities that inhabit it, but also for the country that plays host to them.

That is what is threatened by the Obama Administration’s narrow and crabbed vision of, if not actual disrespect for, religious liberty. We face the prospect of a secular (which is not the same as neutral) state whose reach into our lives and communities is constantly expanding, not as a partner with distinctive and diverse local institutions and organizations, but as their master, dictating the terms on which they will serve the needs of those who use and depend upon them. The genuinely distinctive—religiously and morally traditional—institutions will be treated, not as partners, but as adversaries, at best pushed to the margins, at worst run out of business.

I hope and expect all institutions will love and serve all of God’s children, but will defend their right to do so in ways that are faithful to their understanding of Scripture.

We had an unusual experience last week, with President Obama participating in, of all things, a panel discussion on poverty with three leading public intellectuals, E.J. Dionne, Jr., Robert Putnam, and Arthur Brooks. The conversation ranged pretty widely, with a number of issues coming up, some of which didn’t get all that much attention. I know that there were some hot button moments, which received a good bit of radio and television air time, not to mention editorial and blogosphere commentary, but I’d rather take a deep breath and proceed just a bit more calmly.

Let me begin by observing that the President displayed flashes of the persona that made him at least somewhat appealing when he first appeared on the national scene. He at least said he wanted to get past the partisan divide where one side spoke only about economics and the other only about culture:

The stereotype is that you’ve got folks on the left who just want to pour more money into social programs, and don’t care anything about culture or parenting or family structures, and that’s one stereotype. And then you’ve got cold-hearted, free market, capitalist types who are reading Ayn Rand and…think everybody are moochers. And I think the truth is more complicated.

I think that there are those on the conservative spectrum who deeply care about the least of these, deeply care about the poor; exhibit that through their churches, through community groups, through philanthropic efforts, but are suspicious of what government can do. And then there are those on the left who I think are in the trenches every day and see how important parenting is and how important family structures are, and the connective tissue that holds communities together and recognize that that contributes to poverty when those structures fray, but also believe that government and resources can make a difference in creating an environment in which young people can succeed despite great odds.

And it seems to me that if coming out of this conversation we can have a both/and conversation rather than either/or conversation, then we’ll be making some progress.

I agree: let’s talk about poverty in terms both of the economic straits in which individuals and families find themselves and of the culture (embodied in the media, schools, and government programs, as well as in churches and other community institutions) that should, but doesn’t necessarily, encourage responsibility for oneself, for one’s partner(s), and for any and all children one brings into the world.

Here are some takeaways from the conversation. There was, in the first instance, a good bit of talk about the disparity of opportunities available to those at different ends of the economic spectrum. Robert Putnam set the tone here, alluding to evidence from his recent book that our poor kids get much less support and have much less to which to look forward than do their wealthy counterparts:

[Y]ou can see it in measures of family stability. You can see it in measures of the investments that parents are able to make in their kids, the investments of money and the investments of time. You can see it in the quality of schools kids go to. You can see it in the character of the social and community support that kids — rich kids and poor kids are getting from their communities.

The President responded to this opening by referring to an idealized portrait of community that Putnam draws in the book, one where, despite class differences, everyone shares in the same social and public institutions:

[W]hen I read Bob’s book, the first thing that strikes you is when he’s growing up in Ohio, he’s in a community where the banker is living in reasonable proximity to the janitor at the school. The janitor’s daughter may be going out with the banker’s son. There are a set of common institutions — they may attend the same church; they may be members of the same rotary club; they may be active at the same parks — and all the things that stitch them together. And that is all contributing to social mobility and to a sense of possibility and opportunity for all kids in that community.

Perhaps that was true in some ethnically and religiously homogeneous small towns and urban neighborhoods—Alan Ehrenhalt’s The Lost City is eloquent on this subject—but I have my doubts about it as a sweeping generalization. While, for example, private schools did not proliferate until the 1960s, they have long been available to Roman Catholics (as an alternative to the erstwhile weak-tea Protestantism of the public schools) and to the very wealthy (think Phillips Exeter, Andover, and Choate in the Northeast, as well as Westminster and Woodward here in Atlanta). And anyone who has lived in the South would know that there at least once was a socioeconomic pecking order among Protestant churches, with an enormous contrast between, say, the up-market Episcopalians and the down-market Primitive Baptists. (Indeed, if anything, the decline of the mainline churches and the rise of evangelicalism have served to counteract this phenomenon, so that a much broader socioeconomic spectrum is represented in the pews in many churches on any given Sunday).

Nevertheless, there are three ways community thus conceived can arguably promote social mobility. There are, first of all, the cultural norms of hard work and personal responsibility that can be shared across class boundaries. In this respect, so-called positive role models are not distant abstractions, but personal acquaintances. Peer pressure doesn’t come from (or only from) local gang members but—one hopes—from high-achieving classmates and neighbors. Second, the networks of opportunity readily available to the affluent become open to classmates and acquaintances who don’t have access to them on their own. Finally, because everyone participates in these public institutions, everyone cares about their continued vitality. Thus, for example, parents get involved in PTA’s, care about school board elections, and are active in promoting “investments” (one of the President’s favorite words) in public education. In the Georgetown conversation, we hear something about the last two considerations, but very little (and in any event not enough) about the first.

But if this talk about community isn’t simply to be a nostalgic reminiscence about or longing for something we’ve lost, it behooves us to ask what, practically, we can do to restore it (or preserve it where it still exists).

It would, for example, be impossible—not to say highly undesirable—to compel everyone to attend public schools. While I could imagine some political leaders succumbing to that temptation and trying to regulate private schools out of existence, to the degree that education remains primarily a state and local responsibility, I can’t imagine such a policy sweeping the nation. And even if—horror of horrors—private options were taken off the table, people have historically voted with their feet, exercising “school choice” by moving into a neighborhood whose public schools are attractive. Political efforts to negate the effects of private residential choices haven’t found favor with voters or, for that matter, with the Supreme Court.

This is where, I humbly submit, school choice programs that empower especially lower income people to place their children in better schools actually show some promise of making the aforementioned benefits of community available. Children can escape an essentially homogeneous peer culture that is inimical to achievement and move into schools where parents are involved and there are positive role models. Too bad the President and his party consistently oppose school choice, preferring all too often simply to demand more funding for public schools, as if government by itself can compensate for the social ills that inevitably accompany dysfunctional communities.

A similar statism is implicit in the President’s comments about the role of religion in dealing with the problem of poverty. Here’s what he said:

[W]hen I think about my own Christian faith and my obligations, it is important for me to do what I can myself — individually mentoring young people, or making charitable donations, or in some ways impacting whatever circles and influence I have. But I also think it’s important to have a voice in the larger debate. And I think it would be powerful for our faith-based organizations to speak out on this in a more forceful fashion.

This may sound self-interested because there have been — these are areas where I agree with the evangelical community and faith-based groups, and then there are issues where we have had disagreements around reproductive issues, or same-sex marriage, or what have you. And so maybe it appears advantageous for me to want to focus on these issues of poverty, and not as much on these other issues….

There is great caring and great concern, but when it comes to what are you really going to the mat for, what’s the defining issue, when you’re talking in your congregations, what’s the thing that is really going to capture the essence of who we are as Christians, or as Catholics, or what have you, that this is oftentimes viewed as a “nice to have” relative to an issue like abortion. That’s not across the board, but there sometimes has been that view, and certainly that’s how it’s perceived in our political circles.

While President Obama didn’t go as far as Robert Putnam in mischaracterizing the relative weight of religious emphasis on poverty as opposed to social issues, these remarks do imply that, in his view, social issues like abortion and same-sex marriage play a distractingly large role in the outward-looking role of all too many Christian churches. He does hedge and qualify his statement a bit, but the larger point is that, so far as “our political circles” are concerned, the church’s witness on poverty takes a back seat to its positions on abortion and same-sex marriage. As many have pointed out, this is simply mistaken, but it reveals something about what sorts of actions matter to the President. Furthermore, I’ve argued elsewhere that the President’s principal interest in faith-based groups seems to be mobilizing public support for government action, rather than encouraging their activity as an alternative or supplement to government. He doesn’t see—or at least doesn’t want to highlight—what churches and other faith-based organizations can do as actors in civil society, as possible alternatives to government action. We aren’t supposed to help ourselves or help one another but through the instrumentality of the government. The national conversation on poverty should largely be devoted to what government can do.

I’d like to conclude with a reflection on perhaps President Obama’s most solid contribution to the conversation:

[W]e can all stipulate that the best antipoverty program is a job, which confers not just income, but structure and dignity and a sense of connection to community. Which means we have to spend time thinking about the macro-economy, the broader economy as a whole.

He’s right in every facet of his statement. Having a job is not just about the income, but also about the self-discipline that comes from having to meet obligations to employers, customers, and clients and the dignity that comes from being able to take care of oneself and one’s family. And these relationships are the backbone of every community. I do not mean hereby to deprecate the institutions of civil society—churches, neighborhood associations, and so on—but they don’t prosper without the dignified contributions (both personal and financial) of more or less self-reliant individuals.

While it is clear that our economy hasn’t in recent years generated enough good jobs to lift our least fortunate brothers and sisters out of poverty, I found little in President Obama’s remarks that gave me much confidence that he held the key to success in this regard. We can’t redistribute our way to a better future, so a simple—almost demagogic—focus on inequality won’t do. As Arthur Brooks argued—frequently and effectively, in my view—there is no substitute for a dynamic and productive economy as a generator of wealth. And, as he also argued, ensuring that everyone benefits requires making hard choices that our political classes haven’t demonstrated their willingness to make.

Perhaps conversations like the one that took place last week will provide an opening for further, deeper exchanges of views and for genuinely productive policy-making. But I’m sad to say that I’m not holding my breath.

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.

Image Credit: https://humanitiesusa.wordpress.com/2011/05/15/norman-rockwell-freedom-of-speech-the-saturday-evening-post-c-1943/

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 5^th. It now sits before the House, where it will be the subject of a subcommittee hearing on Tuesday, March 24^th. 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.

Critics of Educational Savings Accounts often raise the issue of the constitutional challenges of using taxpayer funds to purchase private education.

Recently, Jason Bedrick of the CATO Institute and Lindsey Burke of the Heritage Foundation highlighted this issue in their article published in National Affairs, writing, “While the United States Supreme Court has ruled that publicly funded school vouchers are constitutional under the First Amendment’s Establishment Clause, most state constitutions contain a version of the so-called ‘Blaine Amendment,’ which bars state aid to parochial schools.”^[1]

The Blaine Amendments owe their name to James G. Blaine, Speaker of the U.S. House of Representatives, who proposed a U.S. constitutional amendment in 1875 prohibiting states from funding religious education. The amendment’s original intent was to prevent Catholics from acquiring taxpayer support for their schools. While his proposed amendment failed to become part of the U.S. Constitution, more than two-thirds of the 50 states adopted their own constitutional amendments barring state funding of religious organizations that include schools, which have come to be known as the Blaine Amendments.

To understand how the Blaine Amendments affect ESAs in Georgia, a recent report written by GCO Scholar Dr. Eric Wearne and the Georgia Public Policy Foundation provides important insight on this issue:[2]

In recent decades, these [Blaine] amendments have been interpreted by some to be prohibitions against any use of state funds for any schools other than public schools, and to prevent public funding of other faith-based initiatives, of any kind. Georgia’s Blaine Amendment reads:

…[n]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution. Ga. Const. art. I, § II, ¶ VII.

However, Title 20 of the Georgia Constitution also states that,

Educational assistance programs authorized. (a) Pursuant to laws now or hereafter enacted by the General Assembly, public funds may be expended for any of the following purposes:

(1) To provide grants, scholarships, loans, or other assistance to students and to parents of students for educational purposes.[3]

ESAs avoid many of the legal issues that may arise through other programs, such as vouchers and tuition tax credits… Matthew Ladner argues that “It is unlikely that ESAs would ever be less constitutionally robust than vouchers. … Designing programs so that the aid has multiple uses and is clearly under the complete control of parents can only help or be neutral in a constitutional challenge.”[4] Though vouchers have been held to be constitutional under certain conditions by the U.S. Supreme Court,[5] ESAs may avoid even these challenges.”[6]

Bedrick and Burke argue this point even further:

The example of Arizona is encouraging on this point for advocates of ESAs. Despite having previously struck down vouchers, in March 2014 the Arizona Supreme Court declined to review an appeals-court decision upholding the state’s ESA law. The court distinguished the ESAs from vouchers because the latter “set aside state money to allow students to attend private schools” whereas under the ESA law, “the state deposits funds into an account from which parents may draw to purchase a wide range of services” and “none of the ESA funds are pre-ordained for a particular destination.”

Given the precedent set by the Arizona Supreme Court and the authority granted by Title 20 of the Georgia Constitution, supporters of ESAs should not allow themselves to worry too much concerning the constitutionality of this innovative program.

Notes

[1] https://www.nationalaffairs.com/publications/detail/the-next-step-in-school-choice

[2] https://georgiapolicy.org/ftp_files/ESA_121714.pdf

[3] https://sos.ga.gov/admin/files/Constitution_2013_Final_Printed.pdf

[4] https://www.edchoice.org/Research/Reports/The-Way-of-the-Future–Education-Savings-Accounts-for-Every-American-Family.aspx

[5] https://www.edreform.com/2012/01/legal-summary-zelman-v-simmons-harris/

[6] See, for example, the current challenge to Georgia’s Tax Credit program. https://reason.com/archives/2014/05/07/georgia-school-choice-legal-challenge

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.

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