Last spring, when conservative lawmakers in Indiana and Arkansas were pushing through “Religious Freedom Restoration Act” (RFRA) legislation intended to legalize anti-LGBT discrimination, a similar bill was under consideration in Georgia. It didn’t pass, but it didn’t die, and it’s now set to return along with another pro-discrimination bill.
SB 129, introduced by Sen. Josh McKoon (R), would prohibit the government from burdening an individual’s religious beliefs similar to the federal RFRA that was expanded by the Supreme Court’s Hobby Lobby decision. This protection would be used to circumvent local laws across the state that prohibit discrimination on the basis of sexual orientation and gender identity; for example, a wedding vendor who refuses to serve a same-sex couple could claim that doing so burdens her religious liberty.
SB 129 passed the Senate, but only after it was forced through committee while Democrats were in the bathroom. It screeched to a halt, however, in the House Judiciary Committee, where lawmakers attempted to amend it to ensure that it could not be used to discriminate. Though McKoon and the bill’s other supporters had claimed all along it would not enable discrimination, they insisted that such an amendment “would completely undercut the purpose of the bill.” Their bluff had been called. The committee approved the amendment and tabled the bill, where it lies in wait for lawmakers to return.
Before SB 129 was officially dead for the 2015 session, several prominent Georgia-based businesses spoke out against it, including The Home Depot, the Atlanta Hawks, MailChimp, and the Atlanta Convention & Visitors Bureau. Hoping to maintain momentum against the bill, a group of over 200 faith leaders spoke out just before the holidays about its return this month, calling it a “vague and broad religious exemptions bill that could result in discrimination and have many unintended consequences.”
In 2016, SB 129 will not be alone. Sen. Greg Kirk (R), a former Southern Baptist pastor, is planning to introduce a companion bill similarly intended to enable discrimination. He has not filed it nor made its text publicly available, but he claims it would mirror the First Amendment Defense Act (FADA) introduced in Congress.
FADA, which six Republican presidential candidates have promised to support, would prohibit the government from taking any negative action against an individual or organization that refused to recognize a same-sex marriage. For example, the government would be forced to continue subsidizing an adoption agency that doesn’t serve same-sex couples or maintain a contract with a religious-run business that doesn’t provide benefits to same-sex spouses. Government workers could also refuse to perform their duties if required to recognize a same-sex marriage. The ACLU has called it “a Pandora’s Box of taxpayer-funded discrimination against same-sex couples and their children.”
Fortunately, the outlook for these bills does not look promising. Several prominent Republican state lawmakers have said as recently as last month that any “religious liberty” bill must have carveouts so that they cannot be used to allow for discrimination. Given McKoon and Kirk have both made it clear that their bills are intended for just such a purpose, they might not get very far.