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Jim GallowayJim Galloway

Legal analysis: ‘Religious liberty’ bill could be used to overturn anti-discrimination ordinances

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State Reps. Dee Dawkins-Haigler, D – Lithonia (from left); Taylor Bennett, D – Brookhaven; Karla Drenner, D-Avondale Estates; Keisha Waites, D-Atlanta; and Park Cannon, D-Atlanta, at a Monday press conference opposing the passage of House Bill 757, the “religious liberty” measure. They urged Gov. Deal to veto the bill. Bob Andres, bandres@ajc.com

State Reps. Dee Dawkins-Haigler, D – Lithonia (from left); Taylor Bennett, D – Brookhaven; Karla Drenner, D-Avondale Estates; Keisha Waites, D-Atlanta; and Park Cannon, D-Atlanta, at a Monday press conference opposing the passage of House Bill 757, the “religious liberty” measure. They urged Gov. Deal to veto the bill. Bob Andres, bandres@ajc.com

Last month, we passed along an analysis of an earlier version of HB 757, the “religious liberty” bill, by Joe Whitley, a former federal prosecutor and ranking executive of the U.S. Justice Department under two GOP administrations.

Whitley is under retainer to Georgia Equality, as former Georgia attorney general Mike Bowers was last year. But Whitley’s analysis is extensive and worth diving into. One important passage:

“[One section of HB 757] provides that, within the State, any “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a law, rule, [or] ordinance…of general applicability” unless the government can show that the burden is in “furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest.

This provision is similar to one set forth in federal law that direct courts to apply “strict scrutiny” review to free exercise claims. In doing so, federal courts have generally determined substantial burdens in the same way they have the sincerity of religious belief, that is, once a claimant pleads that a law or regulation is a substantial burden, then it is, and the courts do not have the ability to second guess that claim. Federal courts also apply these provisions to both individuals and closely held for-profit corporations…..

Here it is of significant concern that this provision could be used to overturn municipal anti-discrimination ordinances.

Read the entire thing here: