The Source of Controversy
Below is the text of Senate Bill 129 in the form the Senate approved.
Proponents argue that the legislation would protect the free exercise of religion from the unspecified burdens the government is placing on people of faith. Opponents have focused on the potential for discrimination against gay and transsexual people because nothing is happening to drive the urgency and passion behind S.B. 129 other than the expansion of marriage rights across the country.
The Supreme Court decision that led to the federal Religious Freedom Restoration Act and is cited in the legislation is 25 years old. The Supreme Court ruling against applying the federal RFRA law to state and local government actions is 18 years old.
Nothing in the legislation explicitly targets the gay community, and the text closely tracks the 1993 RFRA. The differences include two paragraphs from the Georgia Constitution’s Bill of Rights regarding the definition of free exercise of religion.
The first paragraph addresses freedom of conscience and bars any human authority from interfering with the worship of G-d based on conscience. The second paragraph, among other things, specifies that the freedom of religion does not excuse acts of licentiousness or practices that aren’t consistent with peace and safety.
If you cut through the legal citations and definitions, the essence of the law is that the government must show a compelling interest to “substantially burden religious exercise.” The legislation does not define religious exercise but does say it need not be central to or compelled by a system of belief.
Rep. Mike Jacobs’ amendment changed “The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests” to “The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests and protecting persons against discrimination on any ground prohibited by federal, state or local law.”
That addition gutted the purpose of the legislation, proponents argued before the House Judiciary Committee adopted to amendment. Bill sponsor Sen. Josh McKoon and others argued that the legislation wouldn’t offer any protection if it varied from town to town based on local laws.
The hypotheticals presented as reasons to reject the amendment ignored long legal precedent of courts refusing to intervene in matters of religious faith and doctrine, as explained by committee Chairman Wendell Willard based on his private legal practice.
Section 1.
This Act shall be known and may be cited as the “Georgia Religious Freedom Restoration Act.”
Section 2.
Title 50 of the Official Code of Georgia Annotated, relating to state government, is amended 12 by adding a new chapter to read as follows:
“Chapter 15A
50-15A-1.
(a) The General Assembly finds and determines that:
(1) The framers of the United States Constitution and the people of this state, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the United States Constitution and in Paragraphs III and IV of Section I, Article I of the Constitution of this state, respectively;
(2) Laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) Governments should not substantially burden religious exercise without compelling justification;
(4) In Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burden on religious exercise imposed by laws neutral toward religion;
(5) The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests;
(6) In City of Boerne v. Flores, 521 U.S. 507 (1997) the Supreme Court held that the compelling interest test provided for in the federal Religious Freedom Restoration Act must be adopted by a state through legislative act or court decision in order to apply to state or local government action; and
(7) Courts have consistently held that government has a fundamental, overriding interest in eradicating discrimination.
(b) The purpose of this chapter is to:
(1) Restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) Provide a claim or defense to persons whose religious exercise is substantially burdened by government.
50-15A-2.
(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this Code section.
(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is:
(1) In furtherance of a compelling governmental interest; and
(2) The least restrictive means of achieving that compelling governmental interest.
(c) A person whose religious exercise has been burdened in violation of this chapter may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against government. 50-15A-3.
In any action or proceeding to enforce a provision of this chapter, the court or tribunal may allow the prevailing party, other than government, a reasonable attorney fee as part of costs.
50-15A-4.
Nothing in this chapter shall be construed to:
(1) Apply to penological rules, regulations, conditions, or policies established by a penal institution that are reasonably related to the safety and security of incarcerated persons, staff, visitors, supervised violators, or the public, or to the maintenance of good order and discipline in any penal institution or parole or probation program; or
(2) Create any rights by an employee against an employer if such employer is not government.
50-15A-5.
As used in this chapter, the term:
(1) ‘Delinquent act’ shall have the same meaning as provided for in Code Section 15-11-2.
(2) ‘Demonstrates’ means meets the burdens of going forward with the evidence and of persuasion.
(3) ‘Exercise of religion’ means any exercise of religion, whether or not compelled by, or central to, a system of religious belief, including but not limited to the practice or observance of religion under Paragraphs III and IV of Section I, Article I of the Constitution of this state or the Free Exercise Clause of the First Amendment to the Constitution of the United States, or the use, building, or conversion of real property for the purpose of religious exercise.
(4) ‘Government’ means the state or any local subdivision of the state or public instrumentality or public corporate body created by or under authority of state law, including but not limited to the executive, legislative, and judicial branches and every department, agency, board, bureau, office, commission, authority, or similar body thereof; municipalities; counties; school districts; special taxing districts; conservation districts; authorities; any other state or local public instrumentality or corporation; or other person acting under color of law.
(5) ‘Penal institution’ means any jail, correctional institution, or similar facility for the detention of violators of state laws or local ordinances and any entity supervising such violators placed on parole, probation, or other conditional release and any facility for the restrictive custody of children and any entity supervising children who are not in restrictive custody but who are accused of or adjudicated for a delinquent act.
(6) ‘Restrictive custody’ shall have the same meaning as provided for in Code Section 90 15-11-2.”
Section 3.
This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.
Section 4.
All laws and parts of laws in conflict with this Act are repealed.
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