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Jim GallowayJim Galloway

A one-time foe takes on ‘religious liberty’ bills for gay-rights group

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In 2010, former Attorney General Michael Bowers argued the constitutionality of the state’s charter school commission, representing Gwinnett County. He won the case, which was ultimately decided by the Georgia Supreme Court. John Spink, jspink@ajc.com

In 2010, former Attorney General Michael Bowers argued the constitutionality of the state’s charter school commission, representing Gwinnett County. He won the case, which was ultimately decided by the Georgia Supreme Court. John Spink, jspink@ajc.com

A prominent Republican whose name will be forever associated with an unhappy milestone in the gay rights movement is about to jump into Georgia’s “religious liberty” fray – but on the side of those who say two bills now under consideration are intended to permit discrimination against gay couples.

Michael Bowers served 16 years as Georgia’s attorney general, resigning to make an unsuccessful run for governor in 1998. He remains a prominent GOP fixer.

Bowers was tapped by Gov. Sonny Perdue to lead the investigation into test-cheating by teachers and administrators in the Atlanta public school system. Until 2010, he headed up the nominating commission that helps fill judicial vacancies in courtrooms across the state.

In other words, the man is connected. And now has been hired by Georgia Equality, the state’s largest LGBT rights group, to provide a legal analysis of House Bill 218 and Senate Bill 129. Both measures, their authors vociferously contend, are merely intended to limit government intrusion into the religious lives of Georgians.

Bowers, we’re told, will offer a stinging condemnation of the bills on Tuesday. But already, excerpts of his paper are wending their way through the Capitol, including these paragraphs:

“First, I believe if enacted into law this legislation will be an excuse to practice invidious discrimination.

“Second, if enacted, the proposed [measures] will permit everyone to become a law unto themselves in terms of deciding what laws they will or will not obey, based on whatever religious tenets they may profess or create at any given time. The potential intended and unintended consequences are alarming.”

Perhaps reflecting the past worries of his generation – Bowers is 72 – the former attorney general also will posit that the measures could lead to a rise in racial hate groups like the KKK, entities that were exiled to Georgia’s shadows decades ago.

More on that last point later.

The great irony of Bowers’ entry into the religious liberty debate is the role the former attorney general and his office played nearly 30 years ago in the early days of the gay rights movement.

In 1982, Atlanta police served a warrant on Michael Hardwick, a bartender at a gay club, for public drinking. Entering his apartment, officers found Hardwick engaged in consensual sex with another man. The two were arrested under Georgia’s anti-sodomy law, but were never tried.

Nonetheless, Hardwick sued Bowers, demanding that the attorney general declare the law invalid. Bowers refused, and in 1986, Bowers v. Hardwick reached the U.S. Supreme Court, which upheld the criminalization of “homosexual sodomy.”

It would be 17 years before the high court would reverse itself, overturning a similar law in Texas – and opening the way to today’s debate over gay marriage.

In the aftermath of the Hardwick case, Bowers was unapologetic. In 1992, he cited Georgia’s upheld anti-sodomy law as just cause for rescinding a job offer to a lawyer, Robin Shahar, after learning that she was a lesbian about to marry another woman. Bowers won the lawsuit that arose from that incident, too.

So Bowers will no doubt be asked this week whether he has had a change of heart on gay rights. If he has, he would be far from the first prominent Republican to say so. But a conversion on his part might rank among the most unexpected.

Yet Bowers is far more likely to emphasize the legal can of worms that he thinks would be opened by H.B. 218 and S.B. 129, which would give citizens the right to resist government restrictions on their faith that flunk a “compelling interest” test.

The two bills are “so full of uncertainties” that Bowers, in his analysis, will predict that it would take decades to sort out the dilemmas they might create. Dilemmas over long-forgotten laws that remain peculiar to the South.

Here’s one of the more combustible points that Bowers intends to make on Tuesday:

“It is no exaggeration that the proposed [measures] could be used to justify putting hoods back on the Ku Klux Klan. For decades, Georgia’s Anti-Mask Act has prohibited wearing masks in public.

“The law was enacted to prohibit the Ku Klux Klan from wearing hoods in public, and by extension, to discourage participation in its activities. While this statute contains exceptions for holidays, sporting events, theatrical performances, and gas masks, it does not contain a religious exercise exception – because many Klansmen used religion to justify participation in the Klan.

But the proposed [measures] would create a religious exception that was purposefully excluded. Anonymous participation in hate groups would undoubtedly rise….”

Last week, S.B. 129, proposed by state Sen. Josh McKoon, R-Columbus, was tabled by the Senate Judiciary Committee – which McKoon himself chairs.

H.B. 218, authored by state Rep. Sam Teasley, R-Marietta, has yet to receive its first hearing before the House Judiciary Committee. But when it does, former attorney general Michael Bowers will be a star witness.