Atlanta, GA — The Georgia State House voted to pass the Religious Freedom Restoration Act (RFRA) late this evening by a vote of 96 to 70. GRA-endorsed State Reps. Charlice Byrd (R-Cherokee) and Noelle Kahaian both voted in favor of the bill, which was S.B. 36.
We’re pleased that the State Legislature has finally passed RFRA legislation after all of these years of only talking about it! Back in 2017, the GRA put the question to each of the Republican gubernatorial candidates running in the primary, asking if they would be willing to sign RNFRA legislation, if elected Governor, and Brian Kemp was the first to make the pledge:
Therefore, we feel confident that Governor Brian Kemp will sign this version of the bill very soon.
The bill mirrors federal legislation that has been in place since 1993, and imposes new restrictions on state and local governments’ ability to “substantially burden a person’s exercise of religion” unless it is “in furtherance of a compelling governmental interest.”
RFRA was initially authored at the federal level in response to a U.S. Supreme Court decision Employment Division v. Smith, which held that the government could burden the right of “free exercise of religion,” contrary to the text of the 1st Amendment, as long as it could articulate a reason (any reason) for the burden — the so called “rational basis” test.
This made “free exercise of religion” claims secondary to other 1st Amendment-protected rights, such as “freedom of the press,” “free association,” or” free speech” claims that the government could only win upon demonstrating a compelling governmental interest in the restriction (the “strict scrutiny” test). The federal RFRA instructed courts to restore free exercise claims to the same category as all other First Amendment claims.
However, in 1997 the U.S. Supreme Court ruled in the case City of Boerne v. Flores case that federal RFRA only applied to claims against the federal government, not the state government. This is why many states have adopted their own state-version of RFRAs so that “free exercise of religion” claims against state and local governments are not treated as second class to other ones protected by the 1st Amendment.
Former Governor Nathan Deal, a Republican, vetoed the previous RFRA bill the Georgia General Assembly passed in 2016, which had been the brain-child of then-State Senator Josh Mckoon (R-Columbus). The fulfillment of a promise to pass a new version of RFRA has been a long time coming.