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The Atlanta Journal-Constitution

 baby hand in parent hand

By now, almost everyone who isn’t a Democratic United States Senator has seen at least one of the five macabre videotapes released by the Center for Medical Progress, a pro-life investigative group. The videos are ubiquitous in social media, so I won’t provide links to them here.

In a recent post, AJC columnist Jay Bookman has provided a nice example of the arguments offered by those who continue to defend Planned Parenthood in the face of these—to say the least—embarrassing revelations. Here are his five points, together with my responses.

1. Nothing in the tapes provides evidence of illegal, let alone criminal, behavior. Planned Parenthood is allowed by law to recover its costs in collecting, preserving and transporting that tissue, and there is no evidence it violated that law. Tellingly, and despite the melodramatic complaints of conservatives, the videos have so far resulted in no criminal investigation or prosecution by state or federal authorities. Yelling and the beating of chests doesn’t alter that basic fact. Fabricated outrage doesn’t change that. Simply put, in legal terms there is no “there” there.

Not so fast, Mr. Bookman. The Planned Parenthood representatives are indeed cagey and circumspect and there is, to be sure, no straightforward smoking gun, but like all bureaucrats, they seem to know that there are expenses and then there are expenses. It may take a lot of trouble to untangle what’s a genuine “cost” and what amounts to a profit over and above costs. That the Department of Justice or a federal prosecutor hasn’t yet commenced an investigation doesn’t mean that the DOJ or a D.A. won’t, though given the track record of this Administration with respect to abortion, I’m not holding my breath. A real federal investigation may have to await a new Administration, or a Congressional investigation that forces the current Attorney General’s hand. So there is nothing at all “telling” about the lack of federal action so far. And if I’m not mistaken, at least twelve states have commenced investigations.

2. The law making such research legal was passed in 1993, and among those voting in favor of that bill was one Mitch McConnell, the same man who now claims that videos documenting what he voted to make legal “absolutely shock the conscience.” Other current GOP senators who backed that ’93 law were Richard Shelby, John McCain, Dan Coats, Chuck Grassley, Thad Cochran and Orrin Hatch, many of whom are now backing a shutdown.

Even if the research is authorized by law, it’s one thing to consider that research in the abstract, another altogether to confront graphically what it means and requires (the dissection of a recognizably human body). Perhaps the law needs to be changed. And even if we decide not to change the law that permits the research, there’s no reason why we have to fund either it or the organization that provides the human organs on which the researchers work.

3. Those receiving the fetal tissue are not ghouls of some sort, and the tissue is not being put to inappropriate or disrespectful use.  To the contrary, the tissue is crucial to research into treatments to extend and improve human life, research that would be impossible to conduct without that material. As the New York Times reports, “the National Institutes of Health spent $76 million on research using fetal tissue in 2014 with grants to more than 50 universities, including Columbia, Harvard, the Massachusetts Institute of Technology, Stanford, Yale and the University of California in Berkeley, Irvine, Los Angeles, San Diego and San Francisco.”

While we aren’t necessarily talking about Dr. Josef Mengele here, why must we assume a congruence between the demands of science and “democratic” morality? A careful reading of Francis Bacon’s New Atlantis—the great work on science and politics written by the greatest and most perspicuous thinker on that subject—makes it clear enough for anyone who has eyes to see that there’s a pretty significant disconnect between science and ordinary morality. Curiosity and the ambition to master nature can take one pretty far from what’s decent and respectful. The more powerful science is, the greater mastery of nature it promises us, the more attention we must pay to it and the less we should avert our eyes from its practices. There may be benefits—which, by the way, are at the moment for the most part simply speculative—that aren’t worth the cost.

4. All tissue used in that research is donated by clinic patients, who receive no compensation for doing so. Their sole motive is to help fellow human beings. If we ban the use of such material in research, we accomplish absolutely nothing except to halt that potentially life-saving research. So which is the true “pro-life” position?

As C.S. Lewis argues in The Abolition of Man, there’s a moral cost in treating human beings as meat, or of denying the humanity of a being that is recognizably human. In so doing, we run the palpable risk of dehumanizing ourselves, of numbing our moral sense. Indeed, Lewis’s work ought to be absolutely required reading for anyone who wishes to comment intelligently on these issues.

5. None of the $500 million in federal funding going to Planned Parenthood is used to finance abortions. It is used instead to give low-income women access to contraceptives, maternity care, breast-cancer and ovarian-cancer screenings, and vaccinations against sexually transmitted diseases. If we strip Planned Parenthood of funding for such programs as punishment for the “crime” of following the law and providing tissue for medical research, no other organization has the infrastructure, personnel and training to provide those health-care services. In effect, those women and their children would be the innocent victims of a successful effort to defund Planned Parenthood.

While there may not be a single national organization capable of picking up the slack of PPFA’s arguably overstated non-abortion business, the federal funding that it receives can be put to precisely the same use by a myriad of community health centers and nonprofits in the health, not the abortion, business all over the country. Indeed, the proposed Senate bill preserves every penny of women’s health funding, mandating simply that it go to health clinics, not abortion clinics.

I’ve mentioned two pieces of what I regard as required background reading. Let me close with a third, Dr. Leon Kass’ classic, “The Wisdom of Repugnance”:

Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted-though, one must add, not always for the better. In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or even just (just!) raping or murdering another human being? Would anybody’s failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of inbreeding.

 Photo - Man in Stone Church

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.

College Party

A recent AJC front-page story detailed the results of an in-depth investigation of how Georgia’s colleges and universities handle allegations of sexual assault. Here’s the takeaway, as summarized in the article:

A three-month AJC investigation into the secretive world of campus tribunals found that Georgia’s largest universities are pursuing cases that prosecutors won’t touch, offering some accountability for a serious category of student misconduct. But the newspaper also found that campus justice comes with steep trade-offs.

Procedures vary widely and are often poorly understood by both the accused and the accuser. Students, and sometimes their parents, expect the strict rules of a court of law, but instead encounter a looser system where cross-examining witnesses is sharply curtailed and the burden of proof is far lower.

Several students…claim the proceedings in place are deeply flawed and violated their rights to due process. While they haven’t gone to jail, an expulsion, or even suspension, can have dire and long-lasting consequences.

Sexual misconduct on campus is a very real problem, but so is the way colleges and universities, not just in Georgia, but across the nation, are handling it.

A little background is in order here. In 2011, the U.S. Department of Education’s Office of Civil Rights issued a letter indicating that the hostile environment standard heretofore applicable in sexual harassment cases would be extended to sexual misconduct on campus. Here’s the part of the long letter most relevant for our purposes:

In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

I’ve highlighted the words that lead colleges and universities into a legal thicket where they have to establish procedures for holding students accountable that don’t necessarily contain the sorts of safeguards for the rights of the accused with which we’re familiar from criminal law.

Many legal experts have found problems with the procedures established in response to this letter.   For example, professors from two Ivy League law schools—Penn and Harvard—have raised questions about their university’s (undue) processes. Neither school is exactly a bastion of conservatism and the signatories include some stalwarts of the liberal legal establishment

The AJC article closes with the trade-off Georgia’s colleges and universities face:

Stephanos Bibas, a former federal prosecutor and professor of law and criminology at the University of Pennsylvania, said schools are trapped between competing forces, each of which brings great risk.

“Currently there are dozens of accused, almost all men, suing colleges, and colleges feel like they are whipsawed either way, and there are billions of federal dollars — grants, scholarship dollars — on the line. I think they feel they will get sued whichever way they go,” Bibas said.

They seem to be damned if they do and damned if they don’t.

I’ll leave to the legal experts to craft a fair policy to deal with sexual, but not quite criminal, misconduct on campus. I speak here as someone who has spent more than forty years on college campuses as a student and professor, and as the father of two children, one a college freshman and the other a high school junior. To my mind, there are two problems that the lawyers and student affairs professionals are trying to clean up. The first is the overwhelmingly pervasive presence of alcohol on campus. Everyone has access to it and all too many of them abuse it. Alcohol disinhibits young men and women who would otherwise shy away from the so-called hook-up culture. And it impairs their judgment when they find themselves at close quarters. While I’m dubious of the claim that one in five college women are victims of sexual assault, I have no doubt at all that almost all the cases that fall short of genuine criminality involve the inebriation of all the parties involved.

The second is the hook-up culture itself, based upon the understanding that sex is all about pleasure, not intimacy and procreation. Parents who try to inculcate in their children a traditional understanding of sexual morality are fighting against a strong cultural current, purveyed not just in television, movies, and music, but also in the law that has made marriage itself mostly about adult happiness and personal fulfillment.

But heaven help the educational leader that makes an argument like this. Late last year, Eckerd College President Donald Eastman III sent this message in an email to students:

“Virtue in the area of sexuality is its own reward, and has been held in high esteem in Western Culture for millennia because those who are virtuous are happier as well as healthier,” Eastman wrote to Eckerd’s 1,800 undergraduate students. “No one’s culture or character or understanding is improved by casual sex, and the physical and psychological risks to both genders are profound.”

Eastman, 69, suggested students drink less alcohol because “you know that these incidents are almost always preceded by consumption, often heavy consumption, of alcohol, often by everyone involved in them.”

While I can imagine that many parents were applauding him from the sidelines, the on-campus response was swift and mostly vitriolic.

Our problem is largely one of moral culture, that is to say, it’s an issue of character and character formation. Laws, formal rules, and procedures have a part to play in forming character, but they are blunt instruments, sadly unequal to the task of raising young men and women capable of forming and upholding the intimate bonds necessary for healthy families. When we make a mess of raising our children—as the evidence from campus life suggests we all too often have—we are driven back to these blunt instruments, whose limitations the AJC story makes all too clear.

As a professor, I feel bad for my students. As a parent, I fear for my children.

 

800px-Georgia_State_Capitol_Atlanta_Georgia

I have been following the legislative peregrinations of Georgia’s religious liberty (notice that, unlike the Atlanta newspaper, I don’t use “scare quotes” to describe it) legislation with a great deal of interest and concern. There are just a few days left in this year’s session, and I’d love to see the legislature do the right thing and provide additional sensible protection to what we have for a long time called our “first freedom.” I wish I were more confident.

To get you up to speed, let me give you, dear readers, a brief recap of what has happened so far. Different versions of the proposal were filed in the House and in the Senate. The Senate version passed overwhelmingly on March 5th. It now sits before the House, where it will be the subject of a subcommittee hearing on Tuesday, March 24th. Proponents and opponents of the legislation have turned up the heat, with RedState/WSB pundit Erick Erickson becoming very vocal in favor of the bill and opponents continuing to claim—wrongly, I would argue—that it is a license to discriminate.

My biggest fear is that some legislators—especially those with the most influence—will simply choose to keep their heads down, seeking to propitiate the noisiest constituency. In this, they will follow the risk- and bad publicity-averse business community. In this connection, the latest straw in the wind is a speech delivered by House Speaker David Ralston to the Atlanta Press Club. Here’s what the Speaker had to say:

That gets the bill title of the year award in my book. And I want to say a few things about that bill today. I have said before: I am talking with and listening to people on both sides of this important issue.

And I will continue to do so. I do not take lightly the importance of protecting a person’s right to worship and express their faith. The framers of both the United States and Georgia constitutions saw this right as paramount. And that’s why we find this protection in our most basic and important and even sacred legal documents.

As with any issue of this magnitude, there’s a lot of misinformation swirling out there through the modern rumor mill that we refer to as social media. Despite what you have heard, I haven’t made my mind up. I am still seeking the right way forward, and I don’t apologize for that.

Some things in our legislative process, unfortunately, do take time to work out. Before we move forward, we have to understand what the impact of this legislation will be on the rule of law in this state. We need to know if this legislation opens the door to unintended consequences of any type, that some may try to exploit.

I take proponents of this measure at their word that discrimination toward anyone is not part of this effort. At the same time, I appreciate the concerns of those who have strong opposition to this legislation.

The good news is that Georgia is a global destination for people from all over the world who want to come visit and for businesses that want to come create jobs. And that is not going to change.

But closing the door to anyone is closing the door to all.”

A few things are worth noting here, beginning with his ironic reference to the bill’s title, which I take to mean that he’s of a mind to adopt the “scare quotes” approach taken by the AJC. Second, I’m certainly willing at the moment to take him at his word when he affirms the importance of religious liberty. Third, his concerns about unintended consequences and the rule of law are certainly appropriate, but, I think, rather easily allayed. We have more than twenty years of experience with a federal RFRA, and I don’t think that any honest observer could assert that that piece of legislation amounts to the greatest threat to the rule of law in America today. (I have other nominees for that prize, but that’s a subject for another day.) Of greatest concern is his final comment: “closing the door to anyone is closing the door to all,” offered in the context of a reference to Georgia’s global business ties. As I said earlier, there are noisy constituencies that insist—loudly and at every turn—that the bill offers a license to discriminate, that it is anti-gay, and that it will, in effect, send a signal to gays and others that Georgia is hostile to them. Under those circumstances, they will simply take their business elsewhere. That line of argument seems greatly to concern the Speaker and his allies in the business community. The easy way out is let the bill die this session, sending a signal that Georgia is still open for business. This is easy because the bill’s proponents are, generally speaking, business-friendly and not given to the kind of “bad behavior”—economic boycotts, threatening people’s jobs, and demonstrating at people’s homes—that folks on the other side have displayed. They’ll still shop at Home Depot and book their tickets on Delta.

There’s bit more to the speech that gives me a little hope and more than a little concern:

In this and other passionate debates, however, there always seems to be a few for whom honest, reasonable, and civil discussion is an alien concept that they are simply not acquainted with. These pundits-for-hire and self-professed thought leaders are not looking to protect anything, or anyone. They seek profit, relevance, and attention by preying on people’s worst fears through loud volume, lies and distortions.

I have no interest in rushing to act on this or any other issue merely to coddle over-inflated egos or help grow someone’s bank account.

Here’s what I propose we do: Let’s all take a deep breath and look at this thing in a reasonable way – and we’ll find the right way that really does what both sides hope to accomplish. Because I believe that at the end of the day, Georgians don’t have time for the politics of personal destruction. They don’t expect us to waste the limited time we have here playing these kinds of games.

As an American, and Georgian, and born-again Christian, I value inclusive discussion. I believe the Old Testament prophet got it right when he said, in the Book of Isiah, ‘Come, let us reason together.’

I don’t expect or demand that the members of the House agree on everything. What I do ask, and what we have done, is debate the issues constructively…

The AJC reporter believes that the Speaker’s remarks are largely directed at Erick Erickson, who (as I noted earlier) has turned up the volume in favor of the bill. Erickson may well have hit a nerve, but he’s hardly the only participant in the debate who may have crossed a line or two in promoting a favored position. I wish that the commentary here were more even-handedly directed at transgressors on both sides, rather than focusing much of the ire against a perhaps overzealous supporter of the legislation. Then I’d be more confident in the Speaker’s willingness to “reason together.”

I’ll close by noting an argument proffered by AJC columnist Kyle Wingfield: if the bill is killed this year, it will surely come back next year, after a Supreme Court decision that will likely create a constitutional right to same-sex marriage, with even more heat and less light surrounding it. Genuine friends of religious liberty don’t want it tied too intimately to the hot button social issue of the day. If David Ralston is a genuine friend of religious liberty, he could do much worse than take Wingfield’s advice. Bring it to a vote this year, for next year the acrimony and vitriol will only be worse.

Update: After yesterday’s hearing, some are speculating that the House will approve an alternative to the Senate version that narrowly tailors protections to faith-based non-profits, specifically excluding for-profit businesses like Hobby Lobby, whose owners have religious scruples about contraceptives or abortifacients, for example. I would rather see a robust protection of religious liberty, even in the marketplace. And I would prefer, even more, that people display enough respect for the religious scruples of their fellow citizens that they wouldn’t demand that a business owner act against his or her conscience. But I, personally, would prefer some legislative protection to none at all. I remain persuaded by Kyle Wingfield’s argument that, in the next legialtive session, after a likely Supreme Court decision, getting even a narrow religious liberty bill will be exceedingly difficult. And I am acutely aware how hard it is to persuade the Georgia legislature—even when it’s controlled by people who identify themselves as conservatives—to pass sensible legislation that takes reasonable account of the role of religion in our culture and civilization.

 US Supreme Court

In a blog post, the AJC’s Jay Bookman tried to use a case in Kentucky to raise the spectre of what might happen in Georgia if the legislature passed the “Preventing Government Overreach on Religious Expression Act,” its version of the Religious Freedom Restoration Act (RFRA), passed by an overwhelming bipartisan Congressional majority in the 1990s.

Heavens to Betsy, Bookman argued, in Kentucky, a religious group is appealing to that state’s RFRA to insist that it has the same right to tourist development dollars as does any secular enterprise.  At issue is the effort of the group Answers in Genesis to build a theme park centered on Noah’s Ark.  The park will likely attract visitors to the region, and they will spend money at motels and restaurants near the park, as would tourists visiting Six Flags.  Answers in Genesis argues that it is entitled to state assistance in the same way as is any secular organization.  Their project should be considered for its economic development impact, just like any other project.  The state disagrees, as does Mr. Bookman.  His principal objection is that the organization is likely to require its theme park employees to sign a statement of faith, which means that the state would be providing funds to support an employer that engaged in discrimination on the basis of religion.

Answers in Genesis has filed a lawsuit in federal court, according to Bookman.  Right there he has a problem with the burden of his blog post.  If the organization is suing in federal court, the Kentucky law will be entirely irrelevant to that court’s decision.  Whatever happens in this case will have absolutely no value for predicting the effect of the Georgia law, as interpreted by Georgia courts.

But let’s take a step back and look at Bookman’s argument a little more closely.  Here’s his central contention, the premise that lies at the foundation of his position:

Let’s start the debate by pointing out that tax money and tax incentives shouldn’t be used to promote or advance a particular religious faith. I’d like to think that’s a bedrock principle that most Americans still support, although these days even that might be considered controversial in some quarters.

On one level, it’s hard to disagree with him.  If the First Amendment Establishment Clause and its state counterparts mean anything, it’s that no state should establish—provide public support for—a church.  But the Supreme Court has, in numerous cases, held that when religious organizations are seeking public funding, they need to be treated in the same way as secular organizations.  If they satisfy neutral criteria, established without reference to religion, then they are just as eligible for support as any other entity.  To deny religious groups this opportunity to compete for public funding on a level playing field is to engage in “viewpoint discrimination.”  Thus in Rosenberger v. Rector, the Court held that a student religious magazine at the University of Virginia was eligible for funding from the student activities fee, just as was any other student organization.  That public dollars flowed to a religious group did not imply an establishment of religion, as the Court understood it.  The religious group was just one among many receiving support.  The state’s thumb was not on the scale favoring religion over against secular alternatives.  Rather, to deny the group access to this funding would actually be hostile to religion.  If anything, the state’s thumb would be on the scale opposing religion.

The attorneys for Answers in Genesis know what they are doing.  They’re on quite solid federal constitutional ground in challenging the state’s decision to deny tax incentives available on the basis of neutral economic development criteria to all but religious groups.

And, as I have argued, if they win, it will have nothing to do with Kentucky’s RFRA, and will predict nothing about what will happen in Georgia.

But let me make one last point regarding an implication of Bookman’s argument.  If, as he contends, state and federal money should never go to an organization that uses religious criteria in hiring, then many of the cooperative relationships between government and charitable institutions would have to be torn asunder.  Colleges and universities that require statements of faith from faculty shouldn’t have access to federal money in the form of student loans and grants.  The Salvation Army wouldn’t be able to be one of the government’s largest partners in anti-poverty and workforce preparedness programs.  These organizations receive public funding not because they’re religious, but because they provide a valuable public service.  That service is evaluated, not by religious criteria, but by neutral public criteria.  To demand that they abandon their religious missions in order to be eligible for public funding is not neutral toward religion, but hostile.

Perhaps Jay Bookman means to be hostile toward religion.  I hope not.

Governor Deal

Governor Nathan Deal

Georgia is receiving national attention as the state recently received four competitive federal grants from the Bureau of Justice Assistance (BJA) to implement its Prisoner Reentry Initiative (GA-PRI). Georgia is the only state to have received all four grants at one time – a testament to the smart framework that the state has developed to bring about significant reductions in recidivism.

The Governor’s Office of Transition, Support and Reentry (GOTSR) developed the GA-PRI Framework with the assistance of the Center for Justice Innovation last fall and began taking steps to implement it at five pilot sites around the state. GOTSR took these steps knowing that additional funding would be necessary to successfully carry out this initiative.

The office applied for the BJA grants around the beginning of summer with the hopes that it would receive the funding necessary to hire the right staff, provide evidence-based training and implementation, improve information sharing and measuring outcomes, and establish quality assurance mechanisms.

Jay Neal, executive director of GOTSR, explained that the office applied for the grants with the expectation that each one would fund a different component of the initiative and build on each other. This created a package deal that would enable the state to fully implement the GA-PRI framework without duplicating funds. This smart strategy appealed to BJA, who awarded the office each grant for which it applied.

The four grants that Georgia received for this initiative include:

 

Smart Supervision Grant Department of Corrections; Governor’s Office of Transition, Support and Reentry $750,000
Statewide Recidivism Reduction Grant Department of Corrections; Governor’s Office of Transition, Support and Reentry $3,000,000
Justice Information Sharing Solutions Grant Criminal Justice Coordinating Council $498,234
Justice Reinvestment: Maximizing State Reforms Grant Department of Corrections; Governor’s Office of Transition, Support and Reentry $1,750,000

 

Now that the state has received these grants, the next challenge will be to put all of its planning into action. This implementation phase will be critical to the success of prisoner reentry reform in Georgia, and the state understands that it will take collaboration among all stakeholders in the community for it to be successful, including businesses, churches, educational institutions, non-profits, and others.

GOTSR will be presenting its three year implementation strategy at the Justice Reinvestment National Summit in San Diego (November 17-19, 2014) where hundreds of people from over 30 states will be represented. These states will be looking at Georgia to see how well the state can implement its new reentry framework to reduce recidivism.

Georgia’s goal is to see a decrease in recidivism by seven percent in two years, and by 11 percent over five years.

Jay Neal

Jay Neal, Executive Director of the Governor’s Office of Transition, Support and Reentry

The momentum for reform is strong right now in Georgia, but the true test of the state’s commitment to preparing citizens for successful reintegration will have to be seen in the coming years as the inevitable difficulties of implementation arise.

For now, the state’s leaders seem prepared to face those challenges as they arise. There is a prevailing optimism that can be heard in government boardrooms and local reentry coalitions around the state, especially as people recount the incredible progress that has been made in Georgia over the last four years in the area of criminal justice reform.

 

Image credit:  The Atlanta Journal-Constitution (featured image), The Wall Street Journal, and The Polk Fish Wrap

This week GCO’s Eric Cochling spoke at a “2014 Legislative Roundup” event hosted by the Georgia Public Policy Foundation, their summary is included below:

Good enough on some levels but not good enough across-the-board.

That was their analysis of the 2014 General Assembly from Eric Cochling and Kyle Wingfield at our sold-out policy breakfast on Wednesday, March 26.  Cochling is vice president of public policy at the Georgia Center for Opportunity and Wingfield is the conservative voice on The Atlanta Journal-Constitution editorial pages.

“You saw a lot of excitement about certain ideas whether it was welfare reform or new school choice concepts coming through that made it through a chamber with vast majorities voting in favor of it but then it goes on to die in the other chamber,” Cochling said.  “I would characterize the session as some positive things happened but many missed opportunities for a truly conservative policy movement forward.”

“Thirty-seven constitutional amendments were introduced and two will be on the ballot this fall,” Wingfield said.  “Several would have been very good and would represent great progress for Georgia.  They are not going to be there and the prospects of getting them on the ballot I would argue will only get worse in future years.”

Issues discussed in this YouTube video include criminal justice reform, federal balanced budget constitutional amendment initiatives, child welfare and foster care, transportation investment, tax credit scholarships and school choice, state income tax and pension reform, and Medicaid expansion and improved access to health care for all Georgians.

This content is courtesy of the Georgia Public Policy Foundation, and can be seen in its original form HERE.

Below is the first edition of our Capitol Update newsletter for 2014. If you’d like to receive future editions in your inbox, sign up here.

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2014 Session Begins

By: Eric Cochling, VP of Public Policy
Georgia Center for Opportunity

Welcome to the first edition of our Capitol Update for 2014. As we have done for several years, we will be sending out regular updates to let you know what’s happening under the gold dome (good, bad or otherwise) during the 2014 session of the Georgia General Assembly. Should you have any questions or comments about the content of these updates, please email Eric Cochling.

New Year, Election Near

The 152nd session of the Georgia General Assembly started on Monday. Since this is an election year, the session promises to be a short one as members of the Assembly look to campaign and raise money, things they cannot legally do while in session.

If this week has been any indication, activity will be fast and furious until the end of session, which is expected to end in mid-March this year. It doesn’t help the sense of urgency that the state is on the verge of moving our primary election from July to May. Legislation moving the primary election made its way through both houses of the General Assembly this week and is now on the way to the Governor for his signature.

With the elections looming and based on conversations we have had with lawmakers, we also expect the legislature to steer clear of politically divisive legislation. That said, “politically divisive” is in the eye of the beholder and you can never be certain what bills will generate controversy. It is safe to say that all legislators hope to leave this session, in particular, having made as few of their constituents mad as possible.

Legislation, Study Committees, and Rumors to Watch

– Education –

This week, Governor Deal proposed a $42.3 billion budget – more than half of which is coming from the federal government!! – that includes $547 million in additional funding for Georgia’s public school system to fund teacher pay increases and adding back days to the school calendar.

In other news, House Resolution 486, sponsored by Rep. Tom Taylor (R-Dunwoody) would amend the Georgia Constitution to allow municipalities created in 2005 or later (and contiguous municipalities) to form city school systems.

In the category of  “Finally!,”  Rep. Ed Setzler (R-Acworth) says that he is planning to introduce legislation to address some of the problems created by Georgia’s zero-tolerance law relative to weapons on school property. It would be great if accidentally leaving a pocket knife in your car didn’t result in a criminal record.

– Criminal Justice Reform –

Georgia’s Criminal Justice Reform Council released its third set of recommendations in three years on January 10th, this time focusing on reforming aspects of prisoner reentry. GCO testified before the council in November and we are happy to see that many of the recommendations from our Prisoner Reentry Working Group were included in the council’s report.

The council’s official recommendations include the following:

  • Each prisoner should have a Transition Accountability Plan initiated at the time they enter prison and consistently used during incarceration that will determine the best path to successful reentry;
  • State corrections agencies should work more closely with private agencies and returning citizens to locate and secure sustainable, safe, and affordable housing;
  • The food stamp ban on offenders convicted of a drug-related felony should be lifted, provided that they maintain a certificate of program completion issued by the Department of Corrections showing that they are in good standing and in compliance;
  • Judges should be allowed to modify driver’s license restrictions for those convicted of minor drug offenses not involving a vehicle so that they are able to operate a vehicle;
  • In hiring for state employment, job candidates should not be asked about criminal history until the interview stage.
  • Negligent hiring liability protection should be provided for companies willing to hire ex-offenders under certain conditions.

It is very likely that we will see these recommendations included in a criminal justice reform bill this session. We will keep you posted.

– Marriage and Family –

It’s difficult to deny the harm that no-fault divorce causes to children. It’s also difficult to know exactly what needs to be done to help protect kids from unecessary divorce. House Bill 684, sponsored by Rep. Jason Spencer (R-Woodbine), offers at least part of the answer.

This legislation would only affect couples with minor children, where the grounds for divorce are irreconcilable differences (no-fault). In those cases, the legislation would require divorcing parents to take an eight-hour course that explains how divorce will impact everyone involved, especially the children. It would also require a “discernment period” of 320 days before a court could grant the divorce. The waiting period could be waived in cases involving abuse, neglect, or abandonment and, importantly, the existence of abuse, neglect, or abandonment could be proven to a judge outside of the public eye and public record.

The thinking is that during the discernment period, tensions could cool and the couple could experience life apart – before making it permanent – so that they could see how their divorce would impact their children over the course of the year (including birthdays, holidays, etc.). While not a silver bullet to solve the marriage and divorce crisis in the country, this is certainly a good way to encourage couples with children to stay together.

Visit Allies for Family Life and look for “Children’s Hope for Family Act” for more information.

– Child Welfare –

According to this report, it appears that Georgia is moving quickly to obtain a federal waiver that would allow the state more flexibility in how it spends federal foster care dollars. Governor Deal has indicated that the new flexibility would be used to create new public/private partnerships that would allow private agencies to take a lead role in providing foster care and other child protection services. The Casey Family Foundation has praised the use of waivers and privatization in other states where it has been a success and called for extending the availability of waivers to the states beyond this year.

Our team continues to serve on the Governor’s Office of Children and Families CSEC Task Force, which is making real strides in raising awareness of child sex trafficking in Georgia and finding effective ways to rescue and serve victims, while reducing demand. The subgroup on which we serve recently developed a certification program for businesses that commit to fighting child sex trafficking called Champions for Safe Children. We are now in the process of delivering trainings for interested companies around the metro area. Next up: developing similar certification programs for cities and neighborhoods.

Upcoming Event

Please join us for our 4th annual School Choice Celebration & Rally on Tuesday, January 28th, from noon to 2pm at the Georgia State Capitol. Our special guest will be Keshia Knight Pulliam (Cosby Show and House of Payne). Registration is encouraged.

Funny

The General Assembly has been around a while and like any old institution it has developed its own language. James Salzer at the AJC put this glossary together to help us outsiders keep track of what’s happening.

Thanks to Jamie Lord, our director of government affairs, and Jacob Stubbs, our legislative intern and John Jay Fellowship alumnus for their able contributions to this update.

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