, , ,

Many times we like to react to things we haven’t read or understand. Someone says it is true and we believe it. We are hearing this with the Georgia “Religious Freedom” bill that recently passed.

Here is an overview of and some initial thoughts on the bill (you can read the actual bill here):

  • Section 2 of the bill protects clergy members’ right to perform, or refuse “to solemnize any marriage, perform any rite, or administer any sacrament.” It does not define marriage, including the number of people involved, their ages or relationships with one another. It’s not clear to me whether existing legal definitions of, and restrictions on, marriage would apply here. But it is talking about religious ceremonies, not state recognition of such.
  • The same section states: “All individuals shall be free to attend or not attend, at their discretion, the solemnization of any marriage ….” That appears to be an effort to exempt sole proprietors from participating in a ceremony to which they object, but not businesses any larger than that.
  • Section 3 says businesses cannot be required by government to be open on either Saturday or Sunday. This was part of HB 757, a.k.a. the Pastor Protection Act, when it passed out of the House the first time.
  • Section 4 says a “faith based organization” — defined as an exempt religious organization under Section 501(c)(3) of the Internal Revenue Code, which means it’s a non-profit — is not required “to rent, lease, or otherwise grant permission for property to be used by another person for an event which is objectionable” to that organization. This was also part of HB 757 when the House passed it 161-0.
  • The same section says a faith-based organization cannot be forced “to provide social, educational, or charitable services” that violate its “sincerely held religious belief.” This does not, however, get such an organization out of a voluntary contract with government.
  • Section 5 says a faith-based organization has the right to fire or not hire a person “whose religious beliefs or practices or lack of either” violate the organization’s sincerely held religious beliefs.
  • Section 6 includes the text of the federal Religious Freedom Restoration Act of 1993 (RFRA), the law that sets the strict scrutiny standard for free-exercise cases involving the government. It also includes a non-discrimination clause “with respect to interactions which affect the rights or interests of third persons” — which would include a discrimination claim by an individual against a business. The clause prohibits “invidious discrimination on any grounds prohibited by federal or state law.” That would seem to include sex-based discrimination under Title VII of the federal Civil Rights Act, which the federal EEOC has interpreted to include discrimination based on gender identity and sexual orientation. So, while local non-discrimination ordinances such as Atlanta’s which include LGBT persons are not specifically mentioned, the federal law might cover them anyway.

So, what’s the bottom line?

Here are some questions to think about:

Would you require Christian pastors, Jewish rabbis or Muslim clerics to perform weddings to which they object? Would you require a Muslim cleric to marry a Christian and Jew?

Would you force churches, synagogues, or mosques to let others use their private property for weddings and other events to which they object?

Would you force an individual to attend a wedding or other religious ceremony to which he or she objects?

Would you require a religious school to hire or retain a person whose personal religious beliefs clash with that of the school?

And so on. After all, the opposite of giving people freedom not to do these things is requiring them to do so. The entire debate has been about how to protect one person while not trampling on another person’s rights. That is a careful balance to strike, a difficult one to strike, but it is the proper role of the legislature, rather than courts, to strike that balance.