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The controversy over Georgia's Indiana-style religious freedom bill, explained

On the heels of North Carolina passing its own sweeping anti-LGBTQ law, Georgia Gov. Nathan Deal announced that he will veto a religious freedom measure — one that critics argued could allow the same kind of discrimination in Georgia as North Carolina's law.

The bill was recently passed by the legislature. But Deal was under intense pressure to veto the legislation, particularly from Hollywood businesses that have made Georgia into a hotspot for filming due to lucrative tax incentives. By vetoing the bill, Deal will effectively side with the business interests in his state — and likely aggravate religious conservatives who had made the bill a top priority.

Before Deal's veto announcement, Disney and Marvel threatened to stop film production in Georgia if Deal signed the bill into law. The NFL and NCAA leveled similar threats. Various other companies — including Apple, Dell, Time Warner, Comcast, Sony Pictures, Lions Gate, and Starz — urged the governor to veto the bill.

The backlash was similar to the controversy that Indiana faced last year when it passed its own religious freedom law, eventually forcing state lawmakers to amend the law to clarify that it doesn't allow discrimination.

The concern was Georgia's bill would allow discrimination against LGBTQ people, because, in theory, individuals and organizations could use the policy to cite their religious beliefs to get around local laws that ban discrimination in the workplace, housing, and public accommodations (restaurants, hotels, and other places that serve the public).

But some legal scholars who have studied religious freedom laws doubted Georgia's bill and others like it would allow this kind of discrimination. They argue that both supporters and opponents of religious freedom laws are misstating their impact.

Nonetheless, advocates genuinely believe these religious freedom bills are a threat to LGBTQ rights. By tapping into business interests in Georgia to get the legislation vetoed, LGBTQ advocates may have developed a potential model for stopping future anti-LGBTQ laws — unfortunately perhaps too late for the sweeping anti-LGBTQ law that passed in North Carolina on Wednesday.

Still, a big problem remains in Georgia: Currently, the state has no statewide law that prohibits discrimination against LGBTQ people in the workplace, housing, or public accommodations. Like most other states in the US, then, Georgia already legally allows anti-LGBTQ discrimination, regardless of whether it passed a religious freedom law.

What Georgia's bill would have done

Georgia's statehouse. Universal Images Group via Getty Images

I asked religious liberty expert Douglas Laycock, a law professor at the University of Virginia, what Georgia's bill would have done. Here is a summary of the bill, based on Laycock's analysis and my reading of the proposal:

  • Section 2 says clergy don't have to perform same-sex marriages. But the Constitution presumably already allows clergy to refuse weddings that go against their religious beliefs, as the US Supreme Court suggested in its same-sex marriage decision. People also don't need the approval of clergy to wed in Georgia.
  • Section 3 protects business from being required by local governments to open on their respective Sabbath.
  • Section 4 protects religious nonprofits from having to provide services that violate their faith, unless they agreed to do so in a contract or grant application. This could allow a religious adoption agency to, for instance, deny services to a same-sex couple without risking government interference, unless a contract or grant application forces them to do so. This part of the bill could clearly allow discrimination, although, in this example, there are big secular adoption agencies in Georgia.
  • Section 5 protects the rights of religious nonprofits to hire only people who support and practice their faith.
  • Section 6 is largely a Religious Freedom Restoration Act (RFRA): It says government can't intrude on a person or organization's religious rights unless it has a compelling government interest and is acting in the least intrusive way possible. This is the section LGBTQ advocates most worry about, because they fear it will allow some business owners to cite RFRAs to legally discriminate. (More on the argument around that in a bit.)

Section 6 also includes an exemption that stops its use for "invidious discrimination" that's banned under state or federal law. This would stop a business from, say, citing section 6 to try to get around state or federal laws that ban anti-LGBTQ discrimination.

But since the exemption doesn't note that section 6 also can't be used against local laws, there was some concern that Georgia's bill would let businesses get around laws like Atlanta's, which ban discrimination based on sexual orientation and gender identity in the workplace, housing, and public accommodations.

Business interests successfully stopped Georgia's religious freedom bill

Hollywood. David McNew/Getty Images)

By announcing his veto, Deal essentially put the state's business interests over those of the religious right.

For weeks, businesses had cited worries of anti-LGBTQ discrimination in urging the governor to veto the bill. In particular, Hollywood businesses, such as Marvel and Disney, and sports leagues, like the NFL and NCAA, had threatened to boycott or change their business in the state if Deal signed the religious freedom bill into law. (Again, the state became a hotspot for filming due to tax incentives.)

These threats had some precedent. Previously, when Indiana passed a religious freedom law in 2015 that was interpreted as allowing anti-LGBTQ discrimination, businesses and celebrities threatened boycotts, drawing widespread media coverage. But even though the state legislature eventually amended the law to clarify that it's not meant to allow discrimination, a study from Indianapolis's nonprofit tourism agency found that the city alone lost up to $60 million in potential economic impact due to the backlash against the law.

Deal wanted to avoid a similar fate for Georgia.

At the same time, religious conservatives had been lobbying for the law. These measures have grown increasingly popular in the past couple years, especially following major LGBTQ rights victories — particularly for same-sex marriage — in the courts. Advocates of religious freedom laws argued the measures could blunt the impact of marriage equality by, for example, allowing a baker to refuse service to a same-sex couple looking for a wedding cake.

Ultimately, Deal sided with the business interests. Given the victories for LGBTQ rights groups in Indiana and Georgia now, it seems tapping into business interests could be a successful model for blocking future anti-LGBTQ measures.

But there was reason to doubt Georgia's bill would have allowed discrimination in the first place.

Some legal scholars doubt religious freedom laws can be used to discriminate

A wedding cake. Nigel Roddis/Getty Images

Both supporters and critics of Georgia's religious freedom bill have, at different times, argued that it would allow businesses to bypass local nondiscrimination ordinances and discriminate against LGBTQ people. But some legal scholars doubt the religious freedom measures in question can be used in this way.

The argument is that RFRAs (section 6 of the Georgia bill) create a legal workaround to nondiscrimination laws for employers, landlords, and business owners. So in places that have local or state laws that prohibit discrimination based on sexual orientation and gender identity but also have RFRAs in place, the worry is employers, landlords, and business owners can simply cite their religious beliefs to discriminate and deny employment, housing, and service to LGBTQ people.

For example, an Atlanta baker could try to cite Georgia's bill to refuse service to gay couples because he's religiously opposed to same-sex marriages, even though the city legally prohibits discrimination based on sexual orientation.

But some legal scholars, including Laycock, doubt discrimination will be allowed under religious freedom laws. RFRAs have never been successfully used in their 23-year existence to explicitly allow discrimination, including in cases in New Mexico and Washington state, which has an RFRA standard through court rulings, that involved businesses refusing service to same-sex couples. "There are hardly any cases about discrimination," Laycock wrote in a 2015 email to the Weekly Standard, "and nobody has ever won a religious exemption from a discrimination law under a RFRA standard."

RFRAs don't give individuals or organizations unlimited religious power against the law; they only allow for reasonable accommodations if the government can't prove it has a compelling interest to enforce a law or regulation in a certain way. Since courts have suggested that the government does have a compelling interest to ban discrimination in the workplace, housing, and public accommodations, RFRAs may not create a big enough loophole to successfully get around nondiscrimination protections.

It's possible a court could eventually rule differently and expand the scope of RFRAs. LGBTQ advocates point out that this is the explicit goal of many RFRA supporters, many of whom have pushed the laws in response to LGBTQ rights victories. "We know that opponents of equality, including LGBT equality, will invoke RFRAs to try to authorize discrimination," James Esseks, director of LGBTQ issues at the ACLU, told me. "That is, after all, why the proponents of RFRAs at the state level are pushing these laws."

But some legal scholars are skeptical of the possibility. "If you read the law, and look at how the cases have developed over the past 20 years, this is not going to give you a blank check for bigotry," South Texas College of Law professor Josh Blackman told me in 2015, during Indiana's religious freedom battle. "It's going to be a very rare case where religion can be used as a defense for discrimination claims."

States could get ahead of any of these issues by including exemptions for civil rights laws in their RFRAs. Texas's RFRA includes a carve-out for civil rights protections to prevent people from citing their religious beliefs as a license to discriminate. Indiana's does, too. Georgia's bill included an exemption, but it only explicitly applied to state and federal law, casting doubts on whether it could be used for local measures.

What religious freedom laws are meant to do

Catholics LGBT Marvin Joseph/The Washington Post via Getty Images

RFRAs have been around since President Bill Clinton approved a federal version of the law in 1993. They allow people to challenge undue burdens on their faith that result from laws and policies, but only if the government can't show that it has a compelling interest to apply the burden and a reasonable accommodation isn't available.

Traditionally, the laws have been used to protect religious minorities. The Indianapolis Star's Stephanie Wang reported a case in Minnesota in which a law would have required Amish buggies to use bright fluorescent signs to be more easily detectable on roads. A court agreed the government has a compelling interest to uphold public safety on the roads, but that it could do so in a manner that doesn't burden Amish religious adherence to a simple lifestyle. In the end, the fluorescent signs were replaced with silver reflective tape and kerosene lanterns.

"These are, frankly, plain, vanilla religious protections," Robin Wilson, a law professor at the University of Illinois, told me in 2015, during Indiana's religious freedom battle.

The laws first came about after a 1990 US Supreme Court decision in which the court ruled someone could be fired for using peyote, a hallucinogenic drug, during a religious Native American ceremony. Although the court ruled against the religious argument in that case, it suggested that governments could establish explicit protections that would exempt people from certain laws if they have a genuine religious objection. The ruling eventually convinced the federal government to pass its RFRA in 1993.

Following the enactment of the federal RFRA, the US Supreme Court ruled in 1997 that the federal law only applies religious protections in the context of other federal laws. The decision compelled states to pass their own measures, so the legal protections for religious rights could apply to the local and state levels as well.

In a recent controversial ruling, the federal RFRA was used in Burwell v. Hobby Lobby. In 2014, the US Supreme Court cited the federal RFRA to exempt some employers from Obamacare's birth control mandate, which requires all employer-provided health plans to cover FDA-approved contraceptives without any cost-sharing for the patient. The ruling exempted closely held corporations — notably, Hobby Lobby — whose owners have religious objections to some of the forms of birth control covered by the mandate.

lgbtq pride flag

Shutterstock

A similar ruling, LGBTQ advocates contend, could be applied to federal, state, or local nondiscrimination protections. Hobby Lobby "was a wake-up call," Esseks told me. "It became clear that some folks were trying to create an opening here."

Still, the majority opinion in the case, written by Justice Samuel Alito, suggested religious beliefs can't be used to justify workplace discrimination, although it only mentioned race as an example. "The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction," Alito wrote. "Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

But the Hobby Lobby decision helped create a perception that RFRAs could be used to carve out major exemptions in the law. And that has led to opposition to state RFRAs in Georgia, Indiana, and elsewhere.

Georgia's bigger problem: The state already allows anti-LGBTQ discrimination

Despite LGBTQ advocates' victory, there remains a big problem in Georgia today: The state still legally allows anti-LGBTQ discrimination, even without a religious freedom law.

Georgia, like most states, doesn't have civil rights laws that would ban discrimination against sexual orientation and gender identity in the workplace, housing, and public accommodations. In these states, it's not religious freedom laws that allow discrimination; it's the lack of civil rights laws.

There are some exceptions in Georgia. Atlanta, for instance, has a civil rights law that protects people from discrimination based on sexual orientation or gender identity.

LGBTQ nondiscrimination laws essentially build on existing state and federal laws that prohibit other forms of discrimination — most notably the Civil Rights Act of 1964 and Fair Housing Act, which protect people from discrimination based on their race, color, national origin, religion, and sex.

"The whole point was to say that black people ought to be able to drive to Mississippi from New York and have a place to stay or get a meal at a restaurant," Wilson of the University of Illinois said of the landmark federal laws. "Over time, we added protected classes to that — people with disabilities in some states, for example."

Some LGBTQ advocates argue that legal prohibitions against sex discrimination already protect LGBTQ people. But that interpretation hasn't been affirmed by higher courts, casting uncertainty over whether it would hold up in a legal dispute.

The uncertainty is why advocates want explicit legal protections for LGBTQ people: New state or federal laws that add sexual orientation and gender identity to nondiscrimination protections would remove any doubt about the reach of laws like the Civil Rights Act, Fair Housing Act, Title IX, and state statutes that prohibit sex discrimination in their public accommodations protections. (Federal public accommodations laws don't shield against sex discrimination — only discrimination based on race, color, national origin, and religion.)

So until the protections are validated by courts or made explicit, LGBTQ Georgians will never be truly protected from discrimination across the state — even if the state doesn't pass a religious freedom law.

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