Editor’s Note: Timothy Holbrook is professor of law at Emory University School of Law. He is a frequent LGBT commentator and has served as co-counsel for NFL players at the Supreme Court advocating for marriage equality. The opinions expressed in this commentary are his.
Timothy Holbrook : The Georgia General Assembly just passed a "religious freedom" bill
The bill, like those in other states, is a license to discriminate and could cost the state dearly, says Holbrook
Did I move to Indiana? My mailing address still says Atlanta, GA, and I just filed my Georgia state income taxes. So why do I feel like I’m in Indiana?
Because the Georgia General Assembly just passed a religious freedom bill, just like Indiana did around this time last year. That bill has cost Indiana at least $60 million in tourist revenue.
Unfortunately, what the Georgia legislature passed is worse than Indiana’s. The bill, if signed into law, could have significant economic consequences for Atlanta. The NFL has made clear that Atlanta’s potential hosting of the Super Bowl is at risk. Many Atlanta-based companies, such as Home Depot and Coca-Cola, have spoken out against the measure. Walt Disney is threatening to no longer film movies in the state . As a big convention city, Atlanta stands to lose even more revenue. The Metro Atlanta Chamber of Commerce opposes the bill. Fortunately, there is still time for Georgia Gov. Nathan Deal to veto the measure.
Supporters of the bill adamantly state the bill is not about discrimination. That is just pretext: This bill, along with others in states across the country, are precisely designed to discriminate against lesbian, gay, bisexual, and transgender (LGBT) persons. All of the hand-waving cannot deny that fact.
The bill, called the “Free Exercise Protection Act,” ensures that pastors can’t be forced to perform same-sex marriages and that no one can be forced to attend one, likely seeking to protect photographers and the like. Most important, it allows faith-based organizations to refuse to hire, to fire, or to refuse services if doing so violates their faith. So, LGBT persons can be denied services from such organizations, even ones that receive taxpayer money. A homeless trans adolescent would like to stay at a faith-based shelter? They’d have every right to turn them away.
This goes even further than the Indiana law did. The Indiana law permits the burdening of the exercise of religion if the law is narrowly tailored to advance a compelling government interest. There is no balancing with the Georgia bill.
Most telling is the provision noting that the bill should not be construed to “[p]ermit invidious discrimination on any grounds prohibited by federal or state law.” This has no legal impact. State law can’t trump federal law, so that reference has no teeth. Federal law would govern even without that language. Georgia also has no state-level discrimination prohibitions at all. So, those words are meaningless.
Conspicuously absent from that provision – showing the act’s true intent – are local ordinances. This act would preempt laws like those in Atlanta that provide nondiscrimination protections for the LGBT persons. While it is quite legal to fire someone for being gay across most of the state, some cities like Atlanta prohibit such discrimination. But, under this law, faith-based organizations in Atlanta could fire someone for being LGBT.
Confirming this discriminatory intent is what happened last year when the Georgia legislature considered a different religious liberties bill. When that bill was amended to ensure that the law did not trump local nondiscrimination ordinances, the sponsor of the bill, State Sen. Josh McKoon, withdrew his support, noting that the change would gut the bill. If ensuring nondiscrimination guts the bill, then the bill is truly about discrimination.
Indeed, we need look no further than Indiana to see this reality. There, legislators supposedly fixed the bill to ensure that nondiscrimination ordinances were protected. Nevertheless, the lawsuits have begun challenging whether Indianapolis’ and other cities’ protections for the LGBT community must give way to the religious liberty bill.
If we really want to see what is motivating the legislators of various states, we need only look to North Carolina. This week, in a rapid-fire special session, the North Carolina General Assembly adopted a law that eliminates all local ordinances prohibiting LGBT discrimination. The North Carolina law sets a uniform definition of what constitutes illegal discrimination and bans local municipalities from deviating from that definition. Sexual orientation and gender identity, of course, are not included.
The result: ordinances in cities like Charlotte, protecting LGBT persons from discrimination, are gone. No religious belief is needed there – everyone is free to fire someone simply because they are LGBT. It is far more pernicious than the Georgia bill.
It is far from clear whether the North Carolina law is constitutional. In Romer v. Evans, the U.S. Supreme Court struck down as unconstitutional a Colorado constitutional amendment prohibiting local municipalities from affording nondiscrimination protections to the LGBT community. Undoubtedly there will be protracted litigation on this law.
Both Georgia and North Carolina have marketed themselves as being good for business. Indiana apparently was not a big enough canary in the coal mine. There is now proof that these types of laws have negative economic consequences for these supposedly pro-business states, which the legislatures ignored.
Fortunately, I don’t live in Indiana or North Carolina. I live in Georgia, and the bill is not yet law. Let’s hope that Governor Deal chooses a legacy of inclusion, not exclusion, and vetoes this bill.