Expert Says Georgia Senator's First Amendment Defense Act Is 'RFRA on Steroids'
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If 2015 was the year of RFRA madness, 2016 may be all about FADA fever.
The bad news is, so-called First Amendment Defense Acts (FADAs) are generally worse than Religious Freedom Restoration Acts (RFRAs). In fact, one LGBT legal expert called Georgia's FADA “RFRA on steroids.”
This week, Georgia freshman GOP state Sen. Greg Kirk — a former Southern Baptist pastor — introduced a state version of a proposed federal law designed to give virtually every individual and entity — from government employees and contractors to for-profit businesses — a license to discriminate against same-sex couples, even legally-maried ones, and their children. Similar bills have been introduced in at least four other states, Illinois and Oklahoma, Virginia and Washington.
Kirk, who is in his first term, was elected in 2014 and won the GOP primary by just 222 votes. There was no Democratic challenger.
“The consequences of FADA would be devastating, if upheld,” constitutional law scholar Anthony M. Kreis writes at GeorgiaPol.com. "The fear of discrimination against LGBT persons, women, and others, that stokes opposition to the proposed Religious Freedom Restoration Act is – unlike [with] RFRA — a feature of FADA and not a bug."
Kirk's Senate Bill 284 would prohibit government from "taking discriminatory action" based on a person's belief that “marriage is or should be recognized as the union of one man and one woman” or that “sexual relations are properly reserved to such a marriage.”
In other words, SB 284 could allow any "person" — which the bill defines as "any individual, corporation, partnership, proprietorship, firm, enterprise, association, public or private organization of any character, or other legal entity" — to discriminate against gay couples, their children, single parents, unmarried couples, pregnant women and others, based on religion.
Although some are calling it "the Kim Davis bill," Kirk maintained at a press conference Thursday SB 284 wouldn't allow government employees to refuse to issue marriage licenses to same-sex couples.
However, Kreis notes that SB 284 doesn't define "public officer" or "official duties." Moreover, he writes, the bill would violate free speech and equal protection under the First and Fourteenth Amendments, respectively, because it favors a particular viewpoint and singles out LGBT people.
"Do not be fooled," he writes. "FADA is not an accommodation law for religious objectors. It is, however, a blunt tool to browbeat and demean LGBT Georgians, unconventional families, and unmarried individuals deemed morally corrupt.”
Lambda Legal called Kirk's bill "divisive" and "dangerous," saying it would unleash "legal havoc" and effectively treat for-profit businesses like churches.
"It encourages discrimination, invites litigation, and collides with fundamental rights protected under the US Constitution," the group said.
The Human Rights Campaign called SB 284 "despicable" and "reckless," adding that it "threatens to create a breakdown of state government services." And Georgia Equality said the FADA "flouts the rule of law."
"This legislation sets a dangerous precedent — we can’t pick and choose which laws we want to follow based on our personal beliefs," Georgia Equality wrote. “This bill not only exposes married same-sex couples and their children in Georgia to harm, but it risks imperiling our state’s economy."
The bill could cost the state’s economy $1 billion, according to Georgia Equality, which pointed to recent surveys showing damage to Indiana's business reputation as a result of the state's passage of a RFRA in 2015. After weeks of intense economic backlash, the Indiana Legislature passed an emergency "fix" clarifying that the RFRA doesn't sanction anti-LGBT discrimination.
Kirk claims his bill — which would also nullify local nondiscrimination ordinances — is needed to protect business owners against being "criminalized."
Watch Kirk's press conference below.
Some responses via Twitter:
And once again, the party claiming to be for “small government” is trying to legislate morality - poorly. #gapol— Robbie Medwed (@rjmedwed) January 20, 2016
Sen Kirk's #fada allows non govt ppl n entities to deny services to queers, just go to the next homeless shelter over if they won't serve u— Regina Tweeta (@regina_tweeta) January 21, 2016
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