Anthony Mkreis, Mike Bowers, Gays, and the Klan, Peach Pundit

Didn’t think we had enough dramatic flair over “religious liberty” in Georgia? Welcome, Mike Bowers.

The former Attorney General, well known for his defense of the criminalization of gays and lesbians in Bowers v. Hardwick, is now LGBT Georgians’ ally. Bowers released a memo today condemning the proposed “religious freedom” [RFRA] bills, HB218 and SB129. Let’s digest the memo.

Bowers doesn’t pull punches. He attacked the motivation behind the legislation, writing, “The obvious unstated purpose of the proposed RFRA is to authorize discrimination against disfavored groups.” This is not an earth shattering conclusion. It has been patently obvious for some time that the groups most mobilized behind these bills see RFRAs as a tool to escape civil rights laws and ordinances. They hope to use the shield of RFRA as a sword to reduce gays and lesbians to second-class status.

This has been my largest source of concern– a concern shared by a bipartisan group of legislators. These bills do not exempt civil rights laws, leaving nondiscrimination law and ordinances open to attack by religious objectors. Removing civil rights from religious-based law suits is not unprecedented, nor is it a blue state phenomenon.  Texas and Missouri both took steps to protect civil rights laws from “religious liberty” challenges.  Adopting legislation without a civil rights exception threatens our civil rights tradition and the rule of law. Bowers has that much right.

The public has been told again and again– and again– that the “religious freedom” legislation will not undercut nondiscrimination norms. I have no reason to doubt the sincerity of these assurances from legislative leaders. At the end of the day, however, what is said during media interviews and legislative hearings about their personal intent does not matter.  Legislative text does. Any lawyer worth his or her salt knows that.

Like the former attorney general, I am increasingly convinced that the lobbyists pushing these bills have a different definition of discrimination than most Georgians. In their world, denying services, housing or employment on the basis of race and sex is wrongful discrimination– but, mistreating gays and lesbians in the public square is just deserts. If there was any doubt to the veracity of that observation, the intense opposition to Bill Cowsert’s amendment, which would remove civil rights laws from RFRA lawsuits, is evidence enough. Res ipsa loquitur.

Does RFRA mean impending doom for nondiscrimination laws? I do not think so. But, while I believe that nondiscrimination laws meet the standard embedded in RFRA to trump free exercise claims, it is an open question as to whether state courts would agree.  Specifically, just as the Bowers Memo teases out, there is no guarantee state courts would consider the interest of a local governments enacting nondiscrimination protections as satisfying the test put forth in this legislation. Even if governments are ultimately successful, RFRA legislation without robust protections for civil rights laws and ordinances, is potentially costly. It may have a chilling effect, discouraging more local municipalities from adopting nondiscrimination protections. That is a risk we cannot take.

What is certain to draw attention, if nothing else, is Bowers’ claim that a state RFRA would embolden hate groups, namely the Klan. To this effect, the Bowers memo refers to the Anti-Mask Act, a 1951 law that prohibits mask wearing in public.  The law states exempts the following: “traditional holiday costume[s],” occupational masks, sporting masks,  theatrical masks (the Code specifically exempts Mardi Gras celebrations and masquerade balls), and gas masks used during emergencies and emergency drills.

Importantly here, members of the Klan challenged the law in 1990, when Bowers was Attorney General. The Georgia Supreme Court rebuffed the Klan, though the law was struck down in a Gwinnett County trial court. The Court’s opinion in State v. Miller stated, “Safeguarding the right of the people to exercise their civil rights and to be free from violence and intimidation is not only a compelling interest.” In other words, the state’s interest met the threshold that a RFRA would establish.This, however, is what lawyers call dicta. It wasn’t necessary to resolve the case because the justices used a weaker standard to dispense the Klan’s lawsuit. In other words, it is not binding precedent. If you don’t want to take my word for it, the Georgia Supreme Court pointed it out in a 2011 case, Grady v. Athens-Clark County.

The Bowers memo will likely come under attack as fear mongering. It is hard to engage in dialogue once the image of sheet-wearing throngs is thrown into the debate. But, the truth is that a state RFRA may well spawn the re-litigation of the Anti-Mask Act. Whether the Georgia courts and, ultimately, the Georgia Supreme Court, would carve out a religious exception to the Anti-Mask Act is another question. Courts in New York and Indiana have divided on the issue.

The debate on these bills is likely to rage on with some intensity for the remainder of session. A national spotlight will be on the Gold Dome. Let us hope that we can work together to advance the civil rights of all Georgians and not the discriminatory interests of a shrinking hostile minority.

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