August 3, 2021

Ex-AG Bowers: Religious freedom bills are ‘ill-conceived’ and ‘mean-spirited’

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Michael-BowersBy R. Robin McDonald, From Daily Report

Gay rights groups on Wednesday introduced former Attorney General Mike Bowers as a new and unlikely ally in their fight to stop passage of legislation they say will use religion as an excuse to discriminate—a move that prompted eight legislator lawyers to dismiss Bowers’ critique of the bills as “shameless.”

Bowers, who as AG successfully defended a state law criminalizing consensual sodomy and once rescinded a job offer to a lesbian lawyer, issued a legal broadside against two bills that he said are intended to discriminate against “disfavored groups,” including same-sex couples who want to marry.

Now a partner at the Atlanta office of Balch & Bingham, Bowers said at a news conference that the bills sponsored by Sen. Josh McKoon, R-Columbus, and Rep. Sam Teasley, R-Marietta, are “ill-conceived, unnecessary, mean-spirited, and deserving of a swift death in the General Assembly.”

Bowers took aim at “The Religious Freedom Restoration Act” and “The Preventing Government Overreach on Religious Expression Act,” and similar legislation in other states. The Georgia bills would require the state to demonstrate a “compelling interest” before enforcing any law that could be interpreted as placing a “burden” on an individual’s exercise of his or her religious beliefs.

McKoon’s bill would prohibit the government from limiting someone’s religious exercise unless it can prove that doing so is “essential to” and “the least restrictive means of achieving [a] compelling governmental interest.”

According to Bowers’ analysis, Mc­Koon’s bill also defines the exercise of religion as “the right to act or refuse to act in a manner that is substantially motivated by a sincerely held religious belief.”

Gay rights groups have opposed the measures as one way for business owners to deny services to same-sex couples.

Bowers wrote a scathing analysis of the bills on behalf of Georgia Equality and The Gill Foundation, nonprofit organizations that work to advance equal rights for the lesbian, gay, bisexual and transgender communities. The 1986 decision by the U.S. Supreme Court in Bowers v. Hardwick, upholding Georgia’s criminalization of sodomy, was a landmark setback for gay rights, and made Bowers anathema throughout much of the LGBT community even as it made him a poster boy for the Christian right.

Bowers compounded his reputation in 1991 by rescinding a job offer to Robin Shahar, a young lesbian lawyer, after she announced her intention to wed her female partner in a commitment ceremony. Bowers said at the time he did so because hiring Shahar could be considered tacit approval of her relationship, which could be perceived by the public as a violation of the state’s law against consensual sodomy. Shahar sued, but Bowers eventually prevailed.

Jeff Graham, executive director of Georgia Equality, said the group contacted Bowers after hearing talk “in political circles down at the Capitol” that Bowers had concerns about the two religious freedom bills. “What we were really interested in was the fact that he was such an important Republican voice as well as a former attorney general … who probably knows the Georgia code as well as anyone,” Graham said.

Sixteen legal scholars from across the country had already provided a legal analysis of the bills, he said. Given Bowers’ history, “If he has concerns that are similar to ours, we think that is important to amplify that voice,” Graham explained. “We do feel his voice could be a very powerful and effective voice down at the legislature.”

“There are a lot of folks who are questioning his [Bowers’] motivation,” Graham acknowledged. But “he is his own person. He really does believe these things.”

Billy Linville, managing director of the public policy and regulatory affairs practice at McKenna Long & Aldridge and a spokesman for the Gill Foundation, said that Bowers’ role in the Hardwick and Shahar cases make Bowers’ assessment of the religious freedom bills compelling.

“I would not be telling the truth if I did not recognize the political advantages,” he said. “Mike is in favor of equality for everyone. He does not think that LGBT citizens or anyone else should be discriminated against. He and others have naturally evolved on this issue.”

Asked about his apparent change of heart, Bowers said, “I hope what I did was enforce the rule of law and not discriminate.” He said his record as attorney general “would be for others to judge, not me. I hope it will be said we enforced the law as best we knew how.” Bowers also said he has “made beaucoup mistakes” in his 73 years.

“I know that I’ve changed,” he added. Influenced by eight grandchildren, “getting older and losing a step or two,” 52 years of marriage, “trying more cases,” and “having a bunch of younger partners,” Bowers said, “I’m not of the same opinion on a lot of things.”

Bowers told the Daily Report that he still stands by the decision three decades ago to defend the state’s anti-sodomy law. He said of his decision to rescind Shahar’s job offer: “I do think I made the right legal decision. But I wish it had never happened.”

Bowers said his adherence to the “rule of law” that drove his decisions as attorney general also has guided his legal analysis of the religious freedom bills.

The legislation could be used to prevent married interfaith couples from renting an apartment, could make children vulnerable to brutal forms of corporal punishment, could prompt members of the Ku Klux Klan—whose cross-burnings implied a religious underpinning to the racism they professed—to argue that the masks they are banned by state law from wearing are as rooted in religion as Muslim head scarfs, or hijabs—all in the name of religious freedom, Bowers contended. In his analysis, which he co-authored with Balch associate Joshua Moore, Bowers said the bills would “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.”

Rep. Teasley has said in a Facebook post that allegations made by Better Georgia that run parallel to Bowers’ analysis but also include a potential justification for the abuse of women by their spouses are “outrageous” and “totally devoid of truth.”

“If there was even the slightest bit of truth to their claims, I would oppose the measure myself,” he wrote. “The bill simply states that government must demonstrate that there is a compelling state interest if it is going to burden a person’s free exercise of religion. How is that controversial?”

On Wednesday, Sen. McKoon told the Daily Report that the bills’ opponents “have become so desperate” that “they are trying to throw as much money as necessary to find somebody with an ‘R’ next to their name to speak against it.”

He said the “hypothetical parade of horribles” has been generated by “far left organizations” intent on killing the legislation. McKoon also denied that the bill, which he also sponsored last year, stemmed from any opposition to same sex-marriage. “Thirty-seven states have same-sex marriage. A significant number of those also have [religious freedom] laws,” he said. Opponents of his bill, he added, “can’t point to a single litigated case” in any of those states in which services were denied to same-sex couples on the basis of religious freedom and later upheld by the courts.

On Tuesday afternoon, eight Republican lawyers from the state House issued a news release in response to Bowers, in which they said he should be ashamed for disguising political arguments on behalf of a paid client as a legal opinion.

“We are extremely disappointed in Mr. Bowers’ shameless attempt to lend legal credibility to the hysterical and baseless political ranting of the extreme left. His ‘analysis’ is not a credible legal document, but rather nothing more than a recitation of the tired scare tactics often repeated by misguided opponents on this issue,” said the statement signed by House Majority Whip Matt Ramsey of Peachtree City, Rep. Alex Atwood of St. Simons Island, Rep. Andy Welch of McDonough, Rep. Trey Kelley of Cedartown, Rep. Stephen Allison of Blairsville, Rep. Dusty Hightower of Carrollton, Rep. Christian Coomer of Cartersville, and Rep. Barry Fleming of Harlem.

The eight also stated that the bills call for the same level of judicial review mandated by federal law.

“We expect political zealots to make claims lacking in facts or legal precedent in an attempt to deceive the public into believing religious freedom laws will lead to acts of discrimination, despite the fact such claims have been completely discredited over the two decades that RFRA has been federal law and on the books in dozens of states,” their statement said. “However, it is offensive when a fellow attorney engages in these same smear tactics that impugn the motives and intent of the authors of this important legislation. … Mr. Bowers knows this not a new or drastic approach to free exercise cases and that this measure does nothing more than ensure Georgia state and local government laws and ordinances are held to the same standard as federal laws and the law in dozens of states are held to when potentially burdening a citizen’s free exercise of religion.”

IMAGE: Michael Bowers John Disney/Daily Report

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