Moderated by Tom Sabulis
Senate Bill 377 — the Preservation of Religious Freedom Act — failed to get traction this year, as companies such as Delta and Home Depot said it would hurt business and cost jobs, presumably because it would have allowed private businesses to decline on religious grounds to serve gay people. But discrimination was not the intent, sponsors said. Today, two lawyers look at a compromise solution, and an author parses the definitions of discrimination over the years and, on this issue, makes his case.
Commenting is open.
By Robin Fretwell Wilson and Anthony Michael Kreis
In the closing hours of Georgia’s legislative session, sponsors of the “Preservation of Religious Freedom Act,” Senate Bill 377, made one final attempt to pass it. That attempt failed. It is surprising that the sponsor, Sen. Josh McKoon, even made such a last-ditch effort.
SB 377 had reportedly died after a “massive public backlash” against it and a bill like it in Arizona, vetoed by Gov. Jan Brewer. In both states, some proponents backed the measures as needed to “stave off” gay rights. No wonder the media, corporations and prominent politicians like John McCain and Mitt Romney called these bills a license to discriminate against gays.
Now that the Georgia General Assembly has closed up shop, it is important to ask, what should people who care about religious liberty learn from the failure of Georgia’s and Arizona’s bills? The really big lesson is this: One-sided deals stink.
Shamefully, neither Georgia’s nor Arizona’s bill gave anything to gays and lesbians — although the laws of both states cry for improvement. Georgia’s law, like Arizona’s, fails to prohibit discrimination based on sexual orientation in housing, employment or public accommodations (although some municipalities in both states provide this sorely needed protection). Georgia, like Arizona, constitutionally bans same-sex marriage, despite mounting public support for same-sex marriage in both states. Neither state permits same-sex civil unions.
While Georgia’s bill sought to create plain-vanilla legislation preventing government overreach (known as a Religious Freedom Restoration Act), and Arizona’s bill sought to amend Arizona’s RFRA, some outside groups promoted both bills as a way to push back rights for lesbian, gay, bisexual or transgender (LGBT) people. Such rights include not only nondiscrimination protections, but same-sex marriage.
However, RFRAs were intended to respond to cases far removed from these burning issues — like whether the state can demand that the Amish put orange, not grey, triangles on their buggies.
Could anything more constructive have been done to advance the interests and dignity of both sides? Advancing religious liberty went off the rails in Georgia and Arizona because proponents had only themselves in mind. Tolerance, or “live and let live,” receives traction when part of principled compromises, where both sides across gaping moral divides get something of value. Experience teaches us this.
In 11 states and Washington, D.C., both sides did something strikingly different: They bargained, and both won. Maryland authorized same-sex marriage in 2012 after Governor O’Malley enlarged religious protections in 2011’s failed bill to gain additional support. It worked.
Maine voters authorized same-sex marriage in 2012 after vetoing a 2009 law that insulated only clergy. The 2012 initiative protected the “religious freedom” to not host any marriage when doing so would violate an organization’s religious beliefs, without jeopardizing tax-exemption.
What allowed these compromises to succeed? Bargaining and mutual benefit. In half the states that voluntarily recognized same-sex marriage, vote counts were close. Protections for religious liberty advanced religious liberty — but also advanced same-sex marriage. The delicate process of negotiation delivers gains to both sides, whileblunt measures like SB 377, designed to protect only one side, do not — and should not — succeed.
Going forward, battles over LGBT, including same-sex marriage, will be fought in states like Georgia, where Republicans control both state houses and occupy the governor’s mansion, and where states ban same-sex marriage in their constitutions and give no promise of non-discrimination in statewide law.
In these states, brave legislators should ask themselves, why do we deny gays and lesbians a promise of non-discrimination in society? Why do we deny gays and lesbians legal recognition of their relationships?
Legislators in Georgia, and across the country, have a chance to strike a grand bargain — one that respects the basic civil rights of religious believers and gays and lesbians alike.
Let’s hope that next time, legislators take the opportunity to protect or expand rights for both sides.
Robin Fretwell Wilson is director of the Family Law and Policy Program at the University of Illinois College of Law. Anthony Michael Kreis teaches at the University of Georgia’s School of Public and International Affairs.
By M. Gregg Fager
Americans and our courts will “discriminate” with regard to gay marriage — how well remains to be seen. American educator Noah Webster published An American Dictionary of the English Language in 1828. Since Webster’s day, “discriminate” has noted our ability to distinguish or separate “existing” differences or distinctions. Now, as then, we notice existing differences or distinctions in people and things and select what we prefer, as in choosing good apples instead of bad apples. To this day, each of us routinely discriminates in favor of or against “existing” differences or distinctions.
Since Webster’s day, “discriminate” has also noted our tendency to “make up” differences or distinctions. Now, as then, some of us rely on truth to virtuously discriminate, while others falsely “demean” good apples by calling them bad, or falsely “dignify” bad apples by calling them good, in an attempt to viciously discriminate. To this day, each of us virtuously or viciously discriminates in favor of or against our own or someone else’s “made up” differences or distinctions.
In later dictionaries, such as Black’s Law Dictionary, “discrimination” became associated with “unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality or religion. A failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.” Some dictionaries have now reserved the word “discriminatory” to mean “unfair” or “unequal” principles or practices.
In cases where a class of people seeks to legitimize virtuous conduct, it is good, just, right and wise (and thus not “unfair”) to virtuously discriminate in favor of that conduct to keep it “unequal” with what is vicious. Conversely, where a class of people seeks to legitimize vicious misconduct, it is good, just, right and wise to virtuously discriminate against that misconduct to keep it “unequal” with what is virtuous. If we are not supposed to consistently and virtuously discriminate in favor of “good” and against evil in our laws, then why does the word “good” appear in Article III of our Constitution? To treat good and evil as “equal” is to corrupt our liberty, hope, peace and joy, and our language.
The term “marriage” should discriminate and preserve “existing” differences or distinctions pertaining to virtuous heterosexual relations legitimized by “marriage” between a man and a woman. People who favor homosexual misconduct should not be allowed to erase those differences or distinctions or to “make up” corrupting and confusing differences or distinctions by associating the word “marriage” with unnatural sexual acts or relations between or among members of the same gender.
Our legal motto should be “Equal Justice Under Virtuous Law.” Let the courts virtuously discriminate in favor of preserving “marriage” between a man and a woman by ruling that “marriage” within their jurisdictions shall be recognized as legal and lawful only when it is between a man and a woman. Let the courts virtuously discriminate against “marriage” between members of the same gender by ruling that any legalized relationship between them shall be known at law as a “same gender partnership” and shall not otherwise be named or confused with the word “marriage” within their jurisdictions.
There are discriminating principles and practices by which all human beings should be discriminated and should discriminate. To fail to sustain any one of them is to sustain its opposite. We shall see which of our judges and which of us virtuously discriminate in favor of “truth” and against error, in favor of “virtue” and against vice, and in favor of “integrity” and against corruption. That is the heart of it.
M. Gregg Fager is CEO of Human Progress LC and author of books on the languages of human character and human virtue.