On Wednesday night the Georgia legislature introduced new language to its religious freedom bill and passed the bill in mere hours. Haste makes waste. This new language significantly waters down a religious freedom bill that had real force even though it was, as we pointed out three weeks ago, already lacking in certain respects.
The new version of the bill provides Religious Freedom Restoration Act levels of protection for certain protected persons, but it explicitly says these protections cannot apply in cases of “invidious discrimination.” Of course, no one is in favor of invidious discrimination, but the problem is that in the hands of a liberal judge, everything looks like invidious discrimination even when it is not, such as religious universities or adoption agencies that want their policies to reflect their teachings on marriage. This apes the bad “fix” that gutted the Indiana religious freedom bill.
What this “fix” means in practice is that if a new or existing law creating special legal privileges based on sexual orientation and gender identity conflicts with a sincere religious belief, the Georgia religious freedom bill may provide no protection—not even the standard balancing test that is the hallmark of religious freedom restoration acts. So in an area where we most need religious liberty protection, the new Georgia law goes out of its way to disclaim it.
The Georgia bill also provides First Amendment Defense Act style protections with respect to beliefs about marriage for certain faith-based organizations. But here again, what it gives in one sentence, it takes away in another.
The new version of the bill adopts a very narrow definition of faith-based organizations covering only churches, religious schools, and “integrated auxiliaries.” Indeed, Georgia’s constrained definition of religious organization mimics the one used by the Obama administration to force the Little Sisters of the Poor to help provide abortion-inducing drugs in their employee health plans because they don’t qualify for an exemption as a religious organization. Faith based organizations come in all shapes and sizes and there is no reason for Georgia to adopt such a cramped vision of religious organization.
Finally, the new Georgia bill provides no protection for bakers or florists or other similar wedding professionals who cannot help celebrate a same-sex wedding. While it does provide protections for priests and pastors to not have to perform same-sex weddings and for everyone to not attend them, the U.S. Constitution already provides such protections. So the bill doesn’t protect those who most need it, but protects those who already have it.
It is unfortunate that the Georgia legislature caved to pressure from big business and special interests to water down their weakened bill even further. Other states must be vigilant against such cultural cronyism.
Ryan T. Anderson, Ph.D., researches and writes about marriage and religious liberty as the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. He's the author of the just-released book, Truth Overruled: The Future of Marriage and Religious Liberty."
Roger Severino is the director of the DeVos Center for Religion and Civil Society at The Heritage Foundation.
Editor's Note: This piece was originally published by The Daily Signal.