Unintended Consequences

Georgia Bill Helps Wife Beaters

Georgia’s “Religious Freedom Restoration Act” is among the worst in the nation. So why are pro-gay companies doing nothing about it?

03.13.15 9:15 AM ET

Georgia is poised to pass the nation’s harshest “religious freedom” law, allowing discrimination, judicial obstruction, and even domestic violence. Yet while the bill is far worse than Arizona’s notorious “Turn the Gays Away” bill, it’s attracted far less attention from national advocacy groups and businesses.

The bill, the “Georgia Religious Freedom Restoration Act,” is one of a raft of similar bills (RFRAs, for short) wending their way through state legislatures across the country. The bills are part of the backlash against same-sex marriage, but they go much farther than that. Like the Hobby Lobby decision, which allows closely-held corporations to opt out of part of Obamacare, these laws carve out exemptions to all kinds of laws if a person (or corporation) offers a religious reason for not obeying them.

For example? Restaurants could refuse to serve gay or interracial couples, city clerks could refuse to marry interfaith couples, hotels could keep out Jews, housing developments could keep out black people (Genesis 9:18-27), pharmacies could refuse to dispense birth control, banquet halls could turn away gay weddings, schools could specifically allow anti-gay bullying, and employers could fire anyone for any “religious” reason.

The national movement to pass these laws is well-funded and well-coordinated; most of the laws are written by the same handful of conservative legal hacks in Washington, working for organizations like the Alliance Defending Freedom and Ralph Reed’s Faith and Freedom Coalition, both of which have had a hand in the Georgia bill.

Jeff Graham, executive director of Georgia Equality, said in an interview with The Daily Beast that “in the last two years, there have been 35 bills introduced around the country to establish or expand a RFRA. And there have been over 80 bills filed that specifically allow for discrimination against gay and trans communities.”

As worrisome as these laws are, however, Georgia’s is worse than most.

First, the language is the strictest possible. As with other RFRAs, Georgia’s act says that the government cannot “substantially burden a person’s exercise of religion” without a “compelling governmental interest” and the “least restrictive means of furthering” that interest. This is the classic three-prong test that was at issue in Hobby Lobby, and is considered extremely difficult to meet.

Georgia’s RFRA also specifies that “exercise of religion” can be just about any “practice or observance of religion, whether or not compelled by or central to a system of religious belief.”

In other words, if I say it’s my religious exercise, it is.

Second, the Senate version of the bill was passed by its sponsor, State Senator Josh McKoon, with all kinds of shenanigans. He rammed it through the judiciary committee, which he chairs, while opposition members were in the bathroom.

Then, on dubious procedural grounds, he refused an amendment by a fellow Republican that would have specified that the “religious freedom” could not be used to discriminate against others.

Ironically, says Graham, Georgia doesn’t have that many protections for LGBT people in the first place.

“This is a preemptive strike against the LGBT community,” he says. “If this bill is not intended to allow discrimination, why were its sponsors so adamant about refusing to say so?”

McKoon’s bill passed the Republican-dominated State Senate on March 5, and now heads to the State House, where Republicans have a 2:1 advantage over Democrats, and where representatives have shelved their own version of the bill to try to pass McKoon’s version.

The combination of these factors has led to a curious result: a law so strict that it will lead to a host of unintended consequences—and has even led some Republicans to oppose it.

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Some legal commentators have said that the law would give a pass to spousal and child abusers, as long as the husband (or father) has a religious pretext. Which is easy to provide; the Christian Domestic Discipline Network, for example, offers a host of rationales for “wife spanking.” And let’s not forget Proverbs 13:24: “He who spares his rod hates his son. But he who loves him disciplines him diligently.”

Georgia has numerous laws protecting child welfare, which is arguably a compelling state interest. But are such laws really the “least restrictive means” of protecting it? Not necessarily. At the very least, the laws offer a novel defense against assault and battery.

Or maybe not so novel. Graham says, “We have found cases where people used their religious views as an excuse to impede an investigation into child-endangerment and child-abuse charges. They were not ultimately successful, but they did slow down the investigations.”

With the new law, they would be far better armed. In fact, says Graham, conservative district attorneys in Macon and Marietta have said that the bill would impede investigations and prosecutions of child abuse.

Indeed, Georgia’s RFRA recently gained an unlikely opponent: Mike Bowers, the former attorney general of Bowers v. Hardwick fame. As some may recall, that was the Supreme Court case that upheld Georgia’s anti-sodomy law—and Bowers was the named plaintiff.

In an open letter to Graham (PDF), Bowers said that the law is “unequivocally an excuse to discriminate….[P]ermitting citizens to opt-out of laws because of a so-called burden on the exercise of religion in effect ‘would permit every citizen to become a law unto himself.’”

This perhaps is one reason why conservatives like Bowers and the D.A.s in Macon and Marietta stand opposed to it. As Bowers wrote, “this legislation is not about gay marriage, or contraception, or even so-called ‘religious freedom.’ It is more important than all of these, because it ultimately involves the rule of law.”

What is the future of Georgia’s RFRA?

The Georgia State House ends its session on April 2, and Graham predicts a tight vote. “This will probably go all the way to the final hours” of the session, he said.

Oddly, the most effective forces in killing Arizona’s “Turn The Gays Away” bill—corporations and the Chamber of Commerce—seem to be sitting this battle out. Maybe it’s because Arizona was bidding on a Super Bowl and Georgia isn’t. Or maybe it’s because no one is paying attention. But for whatever reason, the corporate silence is deafening.

This is especially the case for Coca-Cola, which has spent millions to brand itself as pro-gay (remember that Super Bowl ad?) but has been mum on the Georgia bill.

“For now, it appears that Coca-Cola has a relationship of convenience with the gay community,” said Bryan Long, executive director of the progressive organization Better Georgia, in an email to The Daily Beast. “The company promotes equality when it serves the brand but won’t stand up for us when we need it most.”

If big business, national media, and national LGBT organizations continue to sit on the sidelines, the bill’s fate may be a matter of vote-counting. The House bill had 59 cosponsors, out of 180 total members. But Graham pointed out that a pending non-discrimination bill has 78, including 19 Republicans. So it is up for grabs.

On the other hand, maybe those who claim to speak for “equality” will decide to actually do something about it.