The ongoing debate in Georgia over the so-called “religious freedom” bills took another interesting turn thanks to the ongoing battle over same-sex marriage in Alabama.

After a U.S. district court judge struck down the state’s same-sex marriage ban last month, Pike County Alabama probate judge Wes Allen announced on Feb. 6 that his county would no longer issue marriage licenses to any couples, gay or straight. Among his reasons? The Alabama Religious Freedom Amendment to the Alabama state constitution, enacted in 1998.

Attorney Merritt McAlister says she has no doubt someone will cite their religious freedom in order to deny marriage licenses to same-sex couples in Georgia when marriage equality comes to the state. (Courtesy photo)

Attorney Merritt McAlister says she has no doubt someone will cite their religious freedom in order to deny marriage licenses to same-sex couples in Georgia when marriage equality comes to the state. (Courtesy photo)

“I believe that the Alabama Constitution and federal law protect my right to both live my life as a Christian and perform my elected duties,” Allen stated, according to WSFA Channel 12 in Montgomery. “The way that the law allows me to do that is by giving me the discretion to end the issuance of marriage licenses and that is the legal course I am taking.”

The move led Bryan Long, openly gay executive director of progressive political organization Better Georgia, to call Judge Allen’s move “the end game” for Georgia state Rep. Sam Teasley (R-Marietta) and state Sen. Josh McKoon (R-Columbus), in an e-blast sent to the group’s followers.

Merritt McAlister, president of the Stonewall Bar Association and a partner at King & Spalding, says bills like Teasley’s House Bill 218 and McKoon’s soon-to-be filed bill could possibly be used as cover for judges and clerks refusing to issue marriage licenses to same-sex couples in Georgia, if and when the state’s 2004 same-sex marriage ban falls.

“The issue under the statute would then be whether there is a ‘compelling governmental interest’ that justifies the intrusion on the individual’s religious freedom,” McAlister tells the Georgia Voice. “If the Supreme Court does what we expect it to do—if it holds that there is either a fundamental right to marry that protects LGBT folks or that excluding LGBT folks from marriage creates equal protection problems—I think it’s likely that a court would conclude that enforcing that constitutional right would be a ‘compelling governmental interest.’

“But I have no doubt that someone would try to litigate the question, even though the act’s drafters purport not to want the act to be ‘used to discriminate or undermine the rights of any person or class of people,'” she says.

New version of Teasley’s bill fails to allay LGBT discrimination fears

On Feb. 4, Teasley filed a new version of his bill, previously called House Bill 29 and now HB 218, which stripped language that appeared to broaden parental rights. The move was made to appease critics who said the previous bill opened up the door to allow child abuse by parents who cite their religious beliefs.

However, that change still doesn’t address fears about LGBT discrimination, according to Anthony Kreis, a Ph.D. candidate at the University of Georgia’s School of Public and International Affairs, who says the bill doesn’t foreclose businesses from raising religious claims and doesn’t expressly remove civil rights laws from potential RFRA challenges.

“While ultimately, I do not believe that a religious objector to nondiscrimination law could successfully challenge it under a state RFRA, I fear that it will embolden anti-gay animus simply because many of the groups backing the bill wrongfully believe that a state RFRA would allow them to circumvent LGBT civil rights protections,” Kreis says.

“We should not craft laws that will spawn frivolous litigation.”

psaunders@thegavoice.com | @patricksaunders

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