by Anthony S. Winer, professor of law, Mitchell Hamline School of Law
In the last few weeks, Georgia and North Carolina proposed anti-LGBT legislation. The Georgia bill was cast as a measure “to protect religious freedoms.” The North Carolina bill was cast mainly to “provide for” single-sex multiple occupancy bathrooms. But both were actually designed to prevent LGBT people from obtaining protection against discrimination. The bills present notable contrasts.
The most important contrast was that the governor of Georgia vetoed his state’s bill, while the governor of North Carolina signed his so that the North Carolina bill is now law in that state. The next most salient contrast was indicated above: The Georgia statute purports to be based in preserving religious freedom, while the North Carolina statute is entirely secular. This can serve to illustrate that anti-LGBT prejudice can be expressed either in purportedly religious or in secular terms.
Another glaring contrast is that the Georgia bill was drafted clumsily, while the North Carolina bill reflected a sophisticated (if malevolent) understanding of key Supreme Court precedents.
The Georgia bill purported to protect “religious freedoms,” but its coverage was pitiably parochial. Its definition of one of its key defined terms, “faith based organization,” referenced any “church . . . association or convention of churches . . . or any integrated auxiliary of a church or convention or association of churches.” In the entire bill, there was no reference to any synagogue, mosque, temple, or other house of worship that was distinctly not Christian. This phraseology betrayed the narrow mindset of the bill’s authors.
The Georgia bill reflected inept drafting in a variety of additional ways, from the maladroit repetition of certain provisions to the bizarre restatement of the self-evident. (For example, the bill actually contained a provision stating that religious ministers are “free to solemnize any marriage . . . or to decline to do the same, in their discretion.”)