The strongest argument offered by advocates for a Georgia “Religious Freedom Restoration Act” is that Senate Bill 129 is a virtual copy of federal legislation passed by Congress almost unanimously more than 20 years ago. They then ask a simple, disarming question:
How could a Georgia version of that non-controversial federal law be as dangerous and discriminatory as its opponents claim?
The answer — as they know quite well yet try to deny — is timing and intent. Backers of a state RFRA are taking benign legislation that was passed more than two decades ago and “repurposing” it to a very different goal, a goal that sponsors of the 1993 legislation had never envisioned. That goal is to use religious liberty to create a legal “safe harbor” for those who want to continue to discriminate against gay Americans.
There’s really no great mystery to it. When conservative state legislators who attack anything out of Washington as the devil’s own handiwork are suddenly insistent that Georgia has to mimic a two-decade-old federal law, you know something screwy is happening. When legislators in Indiana, Arizona, Arkansas, Utah, West Virginia and other conservative states all simultaneously conclude that their states also have to pass such a law immediately, you know something’s up. Something has changed, and that “something” is of course the looming Supreme Court decision that will make gay marriage legal throughout the land.
For religious conservatives that represents a major loss, and it has come with stunning, disorienting speed. The world is transforming right before their eyes in ways that they never would have imagined, and they are understandably frightened. They look ahead and envision a nation in which it will be illegal to discriminate against gay Americans, and they don’t see themselves as part of that world. In “religious liberty,” they believe they have found a way to exempt themselves, to set up a safe zone in which they can continue to operate as they have in the past. And while I think that’s a pretty sordid cause in which to enlist religious liberty, one of our nation’s most precious principles, it is not without precedent in American history.
In testimony to the House Judiciary Committee earlier this month, one Baptist minister expressed the fear that without such a law, the government might force him to marry gay couples in his Baptist church. That is never, ever going to happen for any number of reasons, the First Amendment among them, but his fear is nonetheless indicative of the irrational panic that such rapid change has engendered.
Of course, some advocates of the bill still attempt to deny or evade the charge that their efforts represent an effort to legalize anti-gay discrimination. State Sen. Josh McKoon, the sponsor of SB 129, says it “couldn’t be further from the truth” to say that the bill is a license to discriminate. Indiana Gov. Mike Pence, who just signed Indiana’s version of the law, repeatedly ducked that direct question when being interviewed over the weekend on ABC News.
Put bluntly, such people are being dishonest in the name of God. If you can’t be forthright about what you’re up to, if you can’t be honest about what you’re really trying to accomplish, then maybe, just maybe, you’re up to something that you know is wrong.
If Georgia’s SB 129 isn’t meant to provide legal cover for discrimination, McKoon and his allies would accept a simple amendment stating that it does not provide legal cover for discrimination. Instead, they have fought such language bitterly, with McKoon saying it would “completely undercut the purpose of the bill.”
That is not a logically tenable proposition. It is not possible for the bill to have nothing to do with discrimination yet be gutted with language that says so. At the very least, the debate here in Georgia and elsewhere has laid bare that contradiction, making the issues at stake crystal clear:
A vote in favor of SB 129 is a vote in favor of legalized discrimination against gay Georgians; a state that passes such a law is making a statement that it intends to give such discrimination the cover of law. That’s not a statement that Georgia ought to be making in 2015, and as it looks to the future, it’s frankly not a statement that the Republican Party ought to be championing.