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.
