An Overview of “Free Exercise Protection Act” HB 757
HB 757 is a reaction to the recent U.S. Supreme Court ruling on same sex marriage, and many may reasonably believe it presents a public relations issue for the state and its business community in terms of holding and attracting economic development, but in drilling down into the bill, very little is actually changed by it in Georgia in terms of the present rights of citizens.
• Protection of Ministers, Clerics, other Religious Practitioners, and Individuals of Faith in Regards to Compelling Their Participation in Same Sex Marriage Ceremonies
- “Religious practitioners” shall not be required to perform marriages that violate their faith.
- A refusal to perform marriages in contravention of a religious practitioner’s faith shall not give rise to a claim of discrimination or be grounds for the loss of tax exempt status.
- No individual shall be compelled to attend or participate in a marriage ceremony which violates his or her faith or be subject to a claim for discrimination for failure to do so.
- In reality, this is already the law on both federal and local levels as existing anti-discrimination laws generally have carve outs affecting religious organizations in areas of faith.
• Protection of Businesses that Close on Saturday or Sunday
- No business or industry shall be required by local ordinance or regulation to operate on a designated religious day of rest.
- One might consider this a “Chik-fil-A” defense law. In Georgia, however, there exist no present local laws or regulations that require the opening of a business on a Saturday or Sunday.
• Protection of Faith Based Organizations in Same Sex Marriage Ceremonies
- No faith based organization shall be compelled to provide goods, services, or rent a location to conduct a marriage ceremony that violates its faith.
- A refusal to provide such goods, services, or rent a location shall not give rise to a claim of discrimination or be grounds for denying such organization tax exempt status.
- Generally, this is a codification of existing general law that already protects faith based organizations from participating in activities in opposition to their faith.
• Protection of Faith Based Organizations in Regards to Employment Laws
- No faith based organization shall be required to hire or retain an individual whose religious beliefs or practices run counter to beliefs of the faith based organization except as may be required by federal or Constitutional law.
- A refusal to hire or retain such individual shall not give rise to a claim of discrimination or be grounds for denying such organization tax exemption status.
- On first blush this provision of the bill may appear troubling to individuals concerned about discrimination in employment. However, the bill expressly recognizes federal anti-discrimination employment law. Under federal law and regulations, faith based organizations are already exempted in regards to employees in positions where one’s faith is an integral part of his or her job. A minister, for instance, would fit under this existing federal exemption. Employees of such organizations in non-faith related positions, however, such as a secretary or a janitor, are protected under federal anti-discrimination law.
• Strict Scrutiny Standard in Government Actions affecting Religious Liberty
- The bill requires that Georgia courts shall insure that any infringement of religion by the government takes place only when there is “a compelling governmental interest,” and the government utilizes the “least restrictive means of achieving that compelling governmental interest.”
This provision is a codification in Georgia of the federal Religious Freedom Restoration Act passed in the early 1990’s in response to a U.S. Supreme Court ruling that had applied a lower standard for considering Religious Freedom than other First Amendment protections such as Freedom of the Press or Speech. Numerous other states have also codified this standard in the past quarter century. o The bill specifically recognizes that federal and state anti-discrimination laws are a compelling government interest.
Of concern to some is the fact that county or city local ordinances were not specifically recognized as well. However, the bill does not outlaw these local protections either, but merely leaves it to the courts to determine if such ordinances fit within the “strict scrutiny” standard. No local anti-discrimination ordinance or state law which has ever been examined under the strict scrutiny standard in other states has ever been struck down.
Furthermore, in terms of Georgia courts future considerations, the bill expressly states that in using the “strict scrutiny” standard, Georgia courts should follow existing Georgia Supreme Court precedent on this issue. The key case in Georgia is Jones v. Moultrie which held that one cannot use religious beliefs as a legal basis to infringe upon the rights legally held by others. Specifically, the court held, “A person’s right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others.” This finding should support the upholding of local ordinances barring discrimination.
- The bill specifically states that this “strict scrutiny” standard cannot be used as a basis for government officials to use their religious beliefs as grounds for refusing to perform their governmental duties. In other words, a government employee cannot pick and choose which laws to follow.
- The bill specifically recognizes that maintaining safety and good order in penal institutions is a compelling state interest and that religious rights may be curtailed in such situations.
- The bill specifically states that the “strict scrutiny” standard in regards to religious freedom applies to government action only and cannot be used as a basis for employee claims against private employers for alleged religious persecution.