Editorial | Freedom of Speech, Religion and the Power of the State

| November 19, 2014

Editorial

Gary Wisenbaker, Valdosta Today Editorial Director:

Georgia State Senator Josh McKoon (R-Columbus) recently announced his intention to re-introduce a “religious freedom” bill in the 2015 Georgia General Assembly. A previous version was opposed by some business interests as well as the Georgia Municipal Association because they felt it would legalize discrimination against the lesbian, gay, bisexual and transgender (LGBT) community and deny them access to needed services.

A plain reading of the legislation, however, says otherwise.

McKoon’s bill simply restricts the right of any governmental entity to “substantially burden a person’s civil right to exercise of religion” unless it can show that the burden is necessary to further a “compelling governmental interest”. Uprooting discrimination on the basis of race, creed, gender, sexual orientation, what have you, is a well-established “compelling governmental interest”. Further, the burden must be the least restrictive means of alternative means to protect that interest.
Under this law, the government is barred from passing a law or imposing a regulation that interferes with one’s religious beliefs unless that law or regulation can pass a “strict scrutiny” test. It addresses government power and the free exercise of religion; it is not a law promoting or protecting acts of private discrimination.

The bill mirrors the 21 year old federal Religious Freedom Restoration Act and other similar laws on the books in 19 other states, even more when judicial decisions are included.

McKoon says that “sending a message that people of every faith are welcome in this state” and not having to “worry about government” interfering with their free exercise of that right “is something we should want to champion.” Indeed.

Some critics take the position that it would hinder business and corporate recruitment in Georgia. Tell that to Texas, a state with a similar law on the books which continues to experience exponential economic growth.

McKoon’s bill is good, solid conservative, “right” thinking: a law buttressing religious rights as guaranteed under the Constitution.

Now, stage left.

Some on the left take the position that religious freedom laws and legislation set a “dangerous precedent”. They can be used to discriminate against the LGBT community, prevent women from accessing birth control, and prevent people from escaping domestic violence, according to Georgia Equality Executive Director Jeff Graham.

They also take the position that the Constitution does much the same thing, hence the need for “hate crime” and “hate speech” legislation as well as ordinances extending the rights of identified groups. And the left, in deference to their proclivity for “identity politics” will use state action to advance not only their agenda but silence any opposition.

And don’t think this can’t happen.

The city of Houston, Texas recently passed the Houston Equal Rights Ordinance (“HERO”). The measure, proposed by Houston’s first openly gay Mayor Annise Parker, bans discrimination based not just on sexual orientation and gender identity but also, as federal laws do, sex, race, color, ethnicity, national origin, age, religion, disability, pregnancy and genetic information, as well as family, marital or military status. While there should be no discrimination based on any of these factors, the ordinance had its problems.

Many in Houston, including the religious community, thought the ordinance was an overreach. It allowed, for example, transgender persons to file complaints if they were denied access to gender based bathrooms ($5,000 fine per violation). They also felt that the application of the law would interfere with their First Amendment religious freedoms.

The opponents of the ordinance didn’t riot, they didn’t boycott, rather they exercised their right of “petition and redress” by gathering over 50,000 signatures, far exceeding the 17,269 required, to put the ordinance to a referendum. But when the petitions hit the mayor’s desk, they were dismissed for alleged irregularities. Maybe so, maybe not.

The scary part is what happened next.

After the petitions were denied, the Alliance Defending Freedom, opponents of HERO, filed suit. The mayor’s office, through her city attorney, then issued subpoenas to five pastors who were not even parties to the lawsuit to surrender “all speeches, presentations, or sermons related to HERO, the [referendum] Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.” (They didn’t seem concerned about the other protected classes.)

This action was nothing short of a blatant violation of the First Amendment.. It was nothing short of a quintessential fascist attempt to intimidate and shut down any opposition to the ordinance. The nationwide outcry was fast and furious and the mayor and city attorney backed down.

More chilling, however, is the attitude the defiant mayor copped: “If the 5 pastors used pulpits for politics, their sermons are fair game.”

This kind of thinking endangers all America. And it has no place in our constitutional framework.

War on religion in America? Think about it.


GARY WISENBAKERGary Wisenbaker, B.A., J.D. is a native of South Georgia where he practiced law in Valdosta and Savannah for 31 years. He has served as state Chairman of the Georgia Young Republicans and Chairman of the Chatham County (Savannah) Republican Party. Gary is a past GOP nominee for State Senate, past delegate to the Republican National Convention and has chaired or co-chaired numerous Republican campaigns for President, US Senate on the county and district level as well as local campaigns. Gary hosts his own blog at www.garywisenbaker.com

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