Activists: ‘Religious freedom’ bills part of national effort to strike back at LGBT victories

The 152nd edition of the Georgia General Assembly was one of the more politically engaged sessions for the LGBT community, in part due to the highly controversial “Preservation of Religious Freedom” bills in the House and Senate.

Both bills are considered dead, but LGBT lobbyists are keeping an eye out until Sine Die on March 20 to ensure the bills don’t pop up as an amendment on a different piece of legislation.

House Bill 1023 was introduced by state Rep. Sam Teasley (R-Marietta) and Senate Bill 377 was introduced by state Sen. Josh McKoon (R-Columbus). Both of their bills were variations on the “Preservation of Religious Freedom” bills introduced in Arizona, Mississippi and other states. Arizona Gov. Jan Brewer vetoed the so-called “religious freedom” bill after outcry from activists as well as many corporations.

McKoon and Teasley have said their bills are based on the federal Religious Freedom Restoration Act (or “RFRA”) signed into law in 1993 by President Clinton.

RFRA Perils, a website dedicated to educating the public on such legislation, notes that there are currently 12 states with pending state RFRA bills in consideration.

States with RFRA bills as of Feb. 2014
• Alabama (state constitution amendment)
• Arizona
• Connecticut
• Florida
• Idaho
• Illinois
• Kansas
• Kentucky
• Louisiana
• Missouri
• New Mexico
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• Tennessee
• Texas
• Virginia
Source: RFRA Perils

‘Hard to believe this is purely chance’

The timing of such similar anti-gay bills being introduced across the country around the same time raised eyebrows. The Alliance Defending Freedom legal firm is a far right conservative organization that has been accused in the past of being a “bill mill”― an organization known for crafting socially conservative legislation and pushing it out to political leaders across the country.

“It’s so highly coincidental that the language would be so similar in so many states at the same time that’s it hard for me to believe that is purely chance,” said Georgia Equality Executive Director Jeff Graham on March 9 at the Northeast Regional Prides/Prides of the Southeast Joint Conference at The W Midtown – Atlanta that was hosted by Atlanta Pride.

“We were in many ways unprepared for this,” Graham added.  “So you know when any piece of legislation has such similar language and such similar talking points, that there is some strategy behind it. So we do have an organized opposition that is trying to hit us.”

What the conservative right wing is trying to hit LGBT people and others with “is this fact that the First Amendment does not cover people’s religious beliefs, which we all know is ridiculous,” Graham said.

“Here in Georgia, that’s what the talking points were. Those were really nice talking points, but a big lie. We’ve got to be shrewd enough to look beyond their lies. This is a preemptive strike in my mind to try and prevent the enactment of further non-discrimination policies on the state and local levels,” Graham said.

McKoon could not be reached for an interview with GA Voice, but in a Twitter exchange on March 4 that included GA Voice, he stated, “I’m sad that Georgia turned its back on the First Amendment today.”

McKoon also defended his bill by tweeting, “because this bill isn’t a labor/employment bill. This bill is simply giving GA it’s own RFRA” and also “To the extent discrimination on basis of sexual orientation is legal SB 377 does nothing to enlarge/reduce it.” McKoon also noted correctly, “sexual orientation is not a protected class under GA law” and added, “SB 377 in no way impacts this.”

McKoon also said he had been working on this bill since last year and it had nothing to do with discriminating against LGBT people. Instead he gave the example of the news he heard of a student forced to “stomp on a photo of Jesus” and when the student denied, he was expelled.

According to Inside Higher Ed, however, a professor at Florida Atlantic University told students to write the word “Jesus” on a piece of paper, fold it, and then stomp on the paper as part of an exercise. A Church of Latter-day Saints student refused in the voluntary exercise and complained about it. Reports that the student was expelled were denied by the university which also stated that the exercise would not be used again. “This is [about] Govt trampling individual freedom,” McKoon stated on Twitter.

What ‘religious freedom’ bills actually entail

Debate over the bills in various legislatures suggests they are largely motivated by a desire to allow an individual to express opposition to same-sex marriages by refusing to bake a wedding cake or provide wedding photography.

But the bills are written such that they create a gaping hole in human rights laws, enabling people to circumvent laws banning discrimination based on race, ethnic origin, sex, and every other classification, including sexual orientation and gender identity. And they could enable a person to cite religious motivations in a wide range of activities, such as withholding medical care, refusing to pay back interest on a loan, or denying service in a hotel or restaurant.

Supporters of the religious bias bills have repeatedly characterized them as being nearly identical to the federal RFRA and various state bills that have already enacted.

But they’re not the same, and many lawmakers in most states appear to have grasped the difference.

The federal law, the Religious Freedom Restoration Act of 1993, said, “The government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it is in furtherance of a compelling governmental interest” and represents “the least restrictive means of furthering that compelling governmental interest.”

The Act states “the term ‘exercise of religion’ means exercise of religion under the first article of amendment to the Constitution of the United States.” In 1997, the U.S. Supreme Court ruled, in Boerne v. Flores, that the act was “a considerable congressional intrusion into the states’ traditional prerogatives and general authority to regulate the health and welfare of their citizens.”

A law enacted last year by the Kentucky legislature following an override of the governor’s veto is very similar to the federal law except that it adds that the government may not burden a person’s religious beliefs indirectly through such means as “withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” That additional language would appear to be useful to a religiously run hospital that wanted to refuse same-sex partner visitation and still collect federal governmental support.

And there was considerable opposition to the Kentucky bill, opposition that expresses many of the same objections being heard to this year’s bills. The Kentucky County Judge/Executive Association said the bill could enable public employees to refuse certain assignments and “open the door to spurious claims by inmates” regarding their food, medical treatment, and worship needs.

The Kentucky League of Cities warned that it could jeopardize the enforcement of laws of general applicability regarding health, safety, and welfare. The Kentucky Association of Sexual Assault Programs said religious beliefs have often been used by family members to justify abuse of women and children and that this new law would make that easier. The Kentucky human rights commission said the law could be used by members of one religion to deny housing to members of another religion; that a restaurant owner of one race could use it to deny service to a patron of another race.

‘A license to discriminate’

Brad Clark, from the national office of the Human Rights Campaign, had strong words about this type of legislation at the March 9 panel discussion.

“This is probably our opposition’s newest form of organizing―looking at so-called religious liberties and saying that you can do whatever the hell you want based on any deeply held religious beliefs,” he told the crowd. “It’s clearly a license to discriminate against LGBT people.”

A confluence of events the week of Feb. 24 doomed both Georgia bills. First, there was a Feb. 25 judicial subcommittee hearing on HB 1023, which was flooded with 150 people ready to speak out against the bill. The majority of the crowd even waited through a three-hour delay to get their chance to hear the bill.

Graham said it was the most people that had shown up to voice their opposition to a bill since the 2004 same-sex marriage ban.

“That was phenomenal,” he says. “That got the attention of everyone at the Capitol. Everybody knew that something had happened that afternoon.”
A flurry of phone calls and emails to representatives followed, and one-by-one, major corporations like Coca-Cola, IHG, Delta Air Lines and others issued statements in opposition to such bills, no doubt spurred on by the nationwide media attention focused on a similar bill ultimately vetoed in Arizona.

Teasley and McKoon finally publicly acknowledged the unlikelihood that their bills would pass before Crossover Day on March 2―the day a bill has to pass in one chamber before “crossing over” into the other chamber to be considered for a vote.

Regardless, activists are not taking any chances. Either bill could be tacked on as an amendment to a bill awaiting passage and could slip through before the end of the current session on March 20.

“Josh McKoon says he still has plans on pushing for it” and will re-introduce in in the next session Graham tells GA Voice. “We are taking those threats very seriously.”

Georgia Equality is in the process of trying to identify any potential bill that could be the vehicle for such a maneuver.

Typically there are a flurry of bills and amendments on the final day of the session, so it’s easy for something to be overlooked. But if no bill is forced through by midnight on March 20 (which Graham calls “the most dangerous hours for us”), the next step is to keep an eye on two Supreme Court cases involving the federal bill that these vaguely resemble.

Cases and races to watch

Two federal  cases―Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius―have been consolidated and oral arguments will be heard on March 25 by the U.S. Supreme Court. The cases both address whether the contraceptive mandate of the Affordable Care Act violates the religious rights of secular corporations and their owners.

The court is being asked to apply its interpretation of the federal RFRA to resolve the claims. The Supreme Court will make a ruling specifically on the constitutional concept of giving individual rights to free expression of religious briefs to corporations, Graham says.The outcome of this now sole case could play a role in local “religious freedom” bills.

“They’ll rule by June, then we’ll have a much better understanding of what the federal law allows, and where there might be potential gaps that people may be interested in trying to fill with future legislation,” Graham says.
After that come the November elections, with numerous races on the local and state level to decide, including several openly gay candidates either running for reelection or for the first time (see sidebar), and races for governor and senator.

Graham says it’s vitally important to do everything we can to elect the individuals that “are going to have our backs” on bills like the anti-gay ones proposed this session.

For instance, take House Bill 990. This bill takes the authorization to accept federal funds for the Medicaid expansion under the ACA out of the hands of Gov. Deal and puts it in the hands of the legislature. This makes it an even harder path to accept the federal funds that will insure over 600,000 lower income Georgia residents (many of whom are LGBT) and bring in a flood of jobs and revenue into the state. The bill made it through to the other chamber on Crossover Day and was still being considered at press time Tuesday.

“It clearly shows that the legislature doesn’t trust the governor to make decisions, and frankly I think it shows that they’re terrified that Jason Carter may actually be the next governor,” Graham told GA Voice.

For his part, state Sen. Jason Carter was not amused by the bill, which now goes before him and his state senate colleagues for a final vote.

“To me, it is more evidence that he’s [Gov. Nathan Deal] doing everything he can in refusing the responsibility of leadership,” Carter told the AJC’s Political Insider. “It’s an unbelievable example of him passing the buck.”

Graham says having openly gay representatives like state Reps. Simone Bell and Karla Drenner in office is what helped the “religious freedom” bills fail.

“Having Rep. Bell and Rep. Drenner talking to their colleagues about this―we don’t have the one-on-one relationships they do,” Graham says. “That helped in the House then trickled over into the Senate.”

What also helped was the turnout at the Capitol for the HB 1023 hearing and the thousands of calls and emails people made to their representatives.

“They need to take that same action to voter efforts,” Graham says. “We need to elect more fair minded people to all levels of government They need to put that same level of enthusiasm that they showed in the last two weeks to electing better people.”

Graham also mentioned that three times as many people responded to Georgia Equality’s action alert on religious freedom bills as did on state Rep. Karla Drenner’s Fair Employment Practices Act, a bill that would protect LGBT state workers, pointing out that the community needs to have the same level of response for proactive pieces of legislation as the ones that we’re reacting to.

Gautam Raghavan, White House liaison to the LGBT community, told the crowd at the NERP/POSE LGBT equality discussion panel on March 9 that LGBT people need to expand the tent if more progress is to be seen.

“The opportunity that’s in front of us is that in the coming years, we can define the issues that matter to our humanity,” Raghavan said. “I think we have an opportunity to work in coalition with other communities that have been showing up at our fights, and now we need to show up at theirs.”

Gay candidates running in 2014

  • State Rep. Karla Drenner faces no opposition in her reelection campaign this year. She is endorsed by Georgia Equality and the national Gay & Lesbian Victory Fund.
  • State Rep. Simone Bell is opposed in the Democratic primary by Erica Morris Long. Bell is endorsed by Georgia Equality and the Victory Fund.
  • State Rep. Keisha Waites is running unopposed and is endorsed by Georgia Equality and the Victory Fund.
  • Kyle Williams is running for state Senate District 42, the seat held by Jason Carter. He faces opposition from former state Rep. Elena Parent in the May 20 Democratic primary. If elected, Williams would be the first openly gay man elected to the state Senate. He is endorsed by Georgia Equality and the Victory Fund.
  • Bob Gibeling is running for state House District 54, which includes Buckhead. He faces no opposition in the Democratic primary. He is endorsed by Georgia Equality.
  • Joan Garner is seeking reelection to the Fulton County Commission. She faces opposition from fellow Democrat Lee Brewster. Garner is endorsed by Georgia Equality and the Victory Fund.
  • Randy New is running for state House District 56, the same seat Ken Britt ran for unsuccessfully in 2012. New, an attorney with Kitchens New Cleghorn LLC, is running as an independent.

― Lisa Keen and Dyana Bagby contributed. | @patricksaunders