The Atlanta Journal-Constitution
Religious rights, yes; bias against LGBT people, no
Religious liberty is a buzzword in politics that too often means something it shouldn’t — the right to inflict harm on vulnerable third parties, namely lesbian, gay, bisexual and transgender people. Georgia hasn’t been immune from attempts to pervert religious liberty. Groups pushing legislation with the intent of allowing businesses to not serve gay customers in the name of religion have particularly marred the last two legislative sessions.
Since the last session, the Supreme Court has ruled same-sex couples have a fundamental right to marry. Calls for legislative responses to protect religious objectors to same-sex marriage were swift. The Pastor’s Protection Act is one such legislative response to Obergefell v. Hodges. The proposed legislation would codify the right of clergy to re- fuse to solemnize any marriage inconsistent with their religious beliefs.
As a threshold matter, same-sex couples aren’t clamoring to be married by men and women of the cloth who oppose their unions. That fact notwithstanding, it is important for Georgians to understand the proposed legislation is not legally necessary. The Supreme Court’s recent decision does not disturb the pre-existing First Amendment right of clergy to perform only marriages consistent with their faith.
Consider an example altogether removed from samesex marriage. Many Orthodox and Conservative rabbis will not marry interfaith couples, believing mixed marriages violate Jewish law. These rabbis have always had the right to not solemnize or celebrate interfaith marriages. At the same time, the state cannot deny a marriage license to couples of different religious backgrounds. Simply put, the rabbis’ refusal right is unrelated to the constitutional right of interfaith couples to obtain a civil marriage.
The same principle applies to same-sex marriage. Samesex couples have a fundamental constitutional right to a state marriage license. However, just like interfaith couples in Georgia, same-sex couples do not have a legal right to any religious ceremony of their choice. Clergy who decline to solemnize or celebrate samesex marriages cannot be penalized for their refusal, with — or without — the Pastor’s Protection Act.
The absence of new legal dynamics, however, isn’t a reason to necessarily oppose the clergy legislation. Indeed, there is nothing novel or unusual about codifying settled constitutional protections in state statute. Between 2009 and 2013, a handful of states enacted same-sex marriage laws. Every state that advanced marriage equality by legislation reaffirmed the principle of clerical autonomy with language similar to that proposed by House Speaker David Ralston.
Often, the law can educate the public about the rights and responsibilities the government owes to the people — and we, to each other. Pro-mar- riage-equality legislators who reaffirmed the widely understood and uncontested constitutional rights of clergy understood this idea. In this vein, the speaker’s proposal is not inherently without value to the extent that the public will walk away with a clearer understanding of the law, and the unfounded fears of some Georgians will be assuaged.
This is not the only legislation responding to Obergefell that we’ll see make its way through the General Assembly in January. However, this bill stands apart from what is almost certain to come.
The right of clergy to perform sacramental acts without government interference speaks to the heart of religious liberty’s meaning. Legislation that seeks to turn back the clock on civil rights and permit the denial of goods or services to LGBT people does not.