An important and historically uncontroversial religious freedom bill died in the Georgia state legislature yesterday, the latest such bill from around the country to become a tragic victim of rush to judgment and colossal misunderstanding.
In an all-out effort to kill the legislation, opponents performed impressive feats of logical jujitsu to label Georgia's Preservation of Religious Freedom Act-and its supporters-as un-American, pro-discrimination and anti-gay: first, by suggesting that the bill was akin to controversial proposals levied in Kansas and Arizona (it's not); then, by peddling wild and unsubstantiated claims about the bill to any and all who would take them at face value.
Ardent voices in national media outlets declared the legislation would allow "restaurateurs and hoteliers [to] turn away same-sex couples" or permit pharmacists to deny therapy to HIV/AIDS patients. Others said it would "open the door to state-sanctioned discrimination against gays and lesbians." Prominent Georgia businesses also played along, asserting that the law, if passed, would "cause significant harm to many people" and even "result in job losses."
These arguments would make for a very convincing case against the bill if, in fact, the statute did as it was portrayed to do. It does not.
There's a very elementary reason for which you'd be hard-pressed to find any mention of gays, same-sex marriage or denial of service in the aforementioned legislation. That's because the bill is of another matter entirely.
What the proposed act does mention is the free exercise of religion. Its passage would bring Georgia in line with 31 other states and the federal government in requiring the state to consider religious belief as a legitimate, arguable legal defense in court. Georgia today is in the minority of states whose citizens have less religious freedom than federal prison inmates.
Instead of providing a de facto "right to discriminate," a bill like Georgia's would yield a simple balancing test that ensures that big government can't trample upon people of faith without proving just cause.
Where did the law come from? The proposed Georgia legislation was modeled after the federal Religious Freedom Restoration Act (RFRA), a landmark, bipartisan law that passed Congress in 1993 with just three dissenting votes. That law was made necessary by a U.S. Supreme Court decision that curtailed what had previously been understood as a fundamental right to religious freedom as defined in the First Amendment and by prior court interpretations. When, in the late-1990s, the Supreme Court removed the law's applicability to state and local governments, a push to codify religious freedom rights at the state level began in earnest, spurring nationwide efforts to pass state versions of the federal RFRA law.
Thus, that Georgia's religious freedom bill could be construed as "anti-gay" would surely come as a surprise to:
- Liberal lions Chuck Schumer and Ted Kennedy, who were primary sponsors of the federal RFRA;
- Democratic President Bill Clinton, who signed the federal RFRA into law;
- Former state senator Barack Obama, who voted in favor of Illinois's RFRA;
- Bipartisan lawmakers in 18 states that have already passed their own version of RFRA;
- Judges in 13 states that have ascribed RFRA-style protections to its citizens; and
- The nation's top religious freedom legal scholars-including those that support same-sex marriage-who not only endorse RFRAs like Georgia's but correctly insist that they have "nothing to do with gay rights" whatsoever.
That Georgia's religious freedom bill could be interpreted as "pro-discrimination" would also come as a surprise to the countless people and organizations such legislation has undeniably helped, for example:
- Public-school students disciplined for wearing religious symbols or garb to school;
- Houses of worship denied local building permits on terms equal with secular structures;
- Medical professionals who, for religious reasons, abstain from participating in surgical abortions;
- Turban-wearing, minority-faith adherents denied jobs because of clothing and appearance regulations; and
- Church ministries banned by local governments from feeding the homeless or serving ex-prisoners.
These are all real-life cases that have been resolved, often without costly litigation, as a result of the protections afforded under laws like the one proposed in Georgia.
What's not a real-life case is the hypothetical one you likely heard a lot about in recent days: that of the Christian business owner who shields himself under a dubiously worded "religious freedom" bill with the intent of discriminating based on sexual orientation.
Here's a fact: In more than 20 years that the Religious Freedom Restoration Act and other state versions like it have been in effect across the United States, not once-in thousands of possible cases-has this legislation been successfully used in court to justify discrimination against a gay person or couple on the basis of religion. Never.
Here's another: Laws like the one proposed in Georgia are neither new, nor partisan, nor inherently discriminatory, nor motivated by the advance of same-sex marriage across the United States. Those who claim otherwise ignore 20+ years of legal history, numerous real-world applications and the most basic of understandings about a bill that's barely three pages in length.
So, why the uproar over Georgia's Preservation of Religious Freedom Act? Chalk it up, in part, to poor timing: an unfortunate entanglement with different legislation in Arizona and Kansas made for all-too-easy yet erroneous comparisons. Rampant and unchecked misinformation, too, led to the bill's ultimate demise.
But, for us, the lesson here must be a cautionary one about the perils of premature judgment and the importance of heeding historical contexts in evaluating legislation. Perhaps, after all, we could have avoided such hysterical furor over a religious freedom bill designed so explicitly to protect-not prejudice.
We should oppose laws that single out gays for discrimination. This law was not one of them.
God willing, we'll see the bill offered in next year's legislative session.