Georgia's Religious Freedom Bill Heightens the Battle Between Sexuality and Faith

The Supreme Court is gearing up to decide the fate of marriage equality nationwide this summer, and some states have decided to prepare for the "damage."

The latest example comes from Georgia, where the Peach State's senate voted 37-15 on Thursday to pass the Georgia Religious Freedom Restoration Act, which would mandate that the "government shall not substantially burden a person's exercise of religion." 

The legislation's supporters have lauded the bill as a hallmark for religious freedom — which is already granted by the United States Constitution — but its critics see it as something else entirely: a legal mechanism designed to pave the way for discrimination against LGBT Americans and members of other minority communities.

"Legal experts from across the political spectrum agree that this bill could open the door for discrimination," said Jeff Graham, executive director for Georgia Equality, in a statement to Mic. "The actions today will have a chilling effect on Georgia's reputation and sends a message of intolerance to the next generation."

If passed, the bill would offer protection from litigation to a person who feels his or her religious practice has been stifled, as well as the option to pursue legal action of their own. But the bill does not define what constitutes a "person," meaning that corporations and businesses, which were functionally classified as people in Citizens United v. Federal Election Commission, are also afforded protection under the law.

In practice, the bill could spell bad news for the LGBT community. As Stephen Peters of the Human Rights Campaign argues in a blog post, "[It] could allow businesses to refuse service to same-sex couples, a paramedic to refuse to provide life-saving services to an LGBT person or a school counselor to refuse services to an LGBT teenager," all because being gay arguably runs counter to certain religious beliefs.

The bill's defenders say differently. Discrimination was never the bill's intention, according to Georgia state Sen. Joshua McKoon (R), who helped sponsor S.B. 129. Instead, he argues that the legislation is merely intended to stave off attacks on religious freedom. (McKoon did not return Mic's request for comment.) 

In a conversation with PolitiFact, McKoon cited a bill the Senate passed last year that was designed to keep Christmas trees and holiday messages in schools, which "speaks to the level of fear people have to speaking their faith."

S.B. 129 would stop the government from interfering with a person's religious beliefs unless it could prove it had a "compelling interest," a specification McKoon argued is a "bright line," according to the Associated Press. He added that it closely resembles the 1993 federal Religious Freedom Restoration Act, which mandates that strict scrutiny be used when determining whether the free exercise clause of the First Amendment has been violated.

That statute, however, didn't extend to the states, which means that the states would be required to put their own law in place — exactly what Georgia is trying to do now.

This isn't the first time the state has come to blows over religion. In January, Atlanta mayor Kasim Reed fired Kelvin Cochran, the city's fire chief, after he distributed copies of a Christian self-help book denouncing homosexuality to his colleagues, the New York Times reported.

Cochran spared no words when he addressed the incident. "It's ironic that the city points to tolerance and inclusion as part of its reasoning," he said in a statement, according to the New York Times. "What could be more intolerant and exclusionary than ending a public servant's 30 years of distinguished service for his religious beliefs?"

But the bill is vague. Its journey through the state Senate involved some political wheeling and dealing. Besides neglecting to define personhood, the bill also barely mentions discrimination, and an earlier version left it out entirely. The approved version references it just once, half-heartedly noting that "courts have consistently held that government has a fundamental, overriding interest in eradicating discrimination."

According to Graham, that's not enough. "If this is not about creating a license to discriminate, why would they work so hard to prevent language that would clarify that from being added to the bill?" he told Mic. 

Meanwhile, the Georgia Voice, an LGBT publication, reports although Democrats tried to add an amendment to the bill that would define "person," their Republican counterparts voted to "engross" S.B. 129, which made any amendments impossible. The Atlanta Journal-Constitution also reported that prior to the bill's passage in the Senate, the approving committee, which included McKoon, quickly pushed the bill through — while the committee's lone Democratic member was in the bathroom.

"[McKoon] knew I was going to come back," state Sen. Vincent Fort told the Journal-Constitution. "It seems to me the right thing would have been to delay the vote until all the members who had appeared at the committee were in the room."

Freedom versus freedom: No one would deny that the freedom to practice one's religion is a vital, and very American, idea. But critics in the legislature point out that this is exactly why it's already protected, making laws like S.B. 129 unnecessary. 

State Sen. Elena Parent (D) voted against the bill and stressed that the U.S. Constitution already provides cover for religious expression. "We have to ensure in our capacity as lawmakers that the pendulum doesn't swing too far the other way in the name of religion," she told the Associated Press.

In the end, the bill (which has ignited a firestorm in Georgia) comes down to a battle of freedoms. As it moves to the state's House of Representatives, lawmakers must grapple with the question of whether one individual's religious freedoms trump another's sexual orientation.

The broader context: As the Associated Press writes, "according to the American Civil Liberties Union, similar bills have been introduced this year in more than a dozen states as conservatives brace for a possible U.S. Supreme Court ruling legalizing same-sex marriage nationwide."

On the chamber floor, state Sen. Curt Thompson (D) argued that this was precisely what was going on in Georgia. "There's no way anyone's going to convince me that that's not what's happening now," he said, adding that he had no desire to see his state become "the next Alabama," where the battle over same-sex marriage has thus far resembled a circus.

Similar measures are popping up across the country; Indiana, Colorado, Arizona and Michigan, among others, have all seen similar bills, each with varying levels of success.

But it's not just the LGBT community that's at risk for discrimination. Any action that offends someone's religious sensibilities is a potential target, including women who utilize abortion services. In fact, McKoon specifically cited Catholic health institutions that oppose abortion when discussing the case. 

"At minimum, I would like for those institutions to have the potential to have the religious-liberty test that this law would give them," McKoon told reporters, as reported by PolitiFact, which brings to mind last summer's infamous Hobby Lobby decision.

There's no way to predict how a potential court case of religious freedom would play out. Even this, admittedly, is premature, given that S.B. 129 must still make it past the state's House of Representatives and the governor's desk before it becomes law. Other recent cases could prove prescient, though.

In February, an Oregon judge ruled against a florist who refused to serve a gay couple, and in January, the Supreme Court ruled in favor of religious freedom when justices declared that a Muslim prisoner was allowed to keep his beard.

But these decisions came down on a case-by-case basis, and should Georgia's law pass, any challenge brought forth would be decided in a similar fashion. 

Given the vagueness of its language and the area it covers, the Georgia Religious Freedom Restoration Act clearly leaves the door open for all sorts of possibilities, all in the name of religion. It may indeed protect sacred beliefs, but the cost of that protection has yet to be measured.