Arguing for real nondiscrimination

PAUL BUTLER, HOST: It’s Thursday, May 18th, 2023.

You’re listening to The World and Everything in It and we’re so glad to have you along. Good morning, I’m Paul Butler.

MARY REICHARD, HOST: And I’m Mary Reichard.

Up next, ordinances that purport to ban discrimination.

Over the last few years, local communities have passed nondiscrimination ordinances. Many add sexual orientation and gender identity to a list of protected categories. This raises questions about protections for religious groups that agree with Biblical teachings on gender and sexuality.

BUTLER: WORLD associate correspondent Lindsay Wolfgang Mast recently visited an Atlanta suburb where leaders are wrestling with these very questions.

LINDSAY WOLFGANG MAST, REPORTER: On a bright May morning, downtown Tucker, Georgia starts to bustle. It’s Tucker Day, the town’s annual festival and parade.

SOUND: [PARADE]

Vintage cars, community groups, and marching bands make their way down Main Street. Mayor Frank Auman says this—a thriving downtown, new sidewalks, safer parks—is the kind of thing he wanted for Tucker in 2016, when the city of 36,000 incorporated and elected him the town’s first mayor. He went on to win two more terms.

FRANK AUMAN: Hey good morning.

But for the last four years, he’s been fighting efforts to pass a local nondiscrimination ordinance—or NDO—a move he fears could spoil the diverse town’s unity. Such an ordinance imposes fines on small businesses and organizations found guilty of discrimination against many classes already covered by federal or state laws, but adds sexual orientation and gender identity to those lists. The proposed ordinance could exempt houses of worship to some extent, but not religious organizations providing social services. Not creative professionals. And not religious organizations involved in commercial work.

At Rehoboth Baptist, a busy church in Tucker that houses a school and multiple ministries, Pastor Troy Bush says he’s alarmed at the prospect.

TROY BUSH: It creates a scenario whereby the city of Tucker will have the right to force any religious organization to hire people that do not support that religious organizations beliefs, their message or their mission. And we believe that is a an egregious affront to our religious liberties and the First Amendment.

Calls for a Tucker NDO—started years ago. In 2018, nearby Doraville adopted the state’s second nondiscrimination ordinance—Atlanta has had one for two decades. Doraville had just elected the state’s first transgender council member Stephe Koontz. Koontz wanted to pass an ordinance to serve as a model for other small Georgia cities considering the same move. The Doraville council waived a first reading and passed it the night it was introduced…

DORAVILLE CITY COUNCIL MEETING: Council Member Fleming? No. Council Member Geierman? Yes. Council Member Naser? Yes. Council Member Patrick? Yes. Council Member Hillard? Yes. Council Member Koontz? Yes. Motion passed 5-1.

Next, it was Clarkston, then Chamblee, Decatur, Dunwoody, Brookhaven, East Point. Over the next 20 months, other small cities nearby passed their own version of Doraville’s ordinance. At least one other waived a first reading. Others heard just a handful of public comments. And all use the same language that leaves first amendment protections vulnerable. It exempts religious organizations conducting worship services—but doesn’t safeguard religious beliefs.

Greg Baylor, Senior Council with Alliance Defending Freedom says the language in the Tucker ordinance goes too far, too fast.

GREG BAYLOR: This is a dramatic departure from what is customary and normal when it comes to religious exemptions and non discrimination ordinances.

Pressure for a Tucker NDO grew as more cities passed them, but Mayor Auman thought passing it was outside the scope of a city council’s purpose. It seems he wasn’t alone in that assessment. Here’s Doraville’s council member Koontz talking to Atlanta’s WXIA-TV in 2019:

KOONTZ: I was told by Jeff Graham that a lot of city attorneys believed that it was illegal for us and that we didn’t have the authority to be passing ordinances like this.

Jeff Graham, whom Koontz mentions there, is the executive director of Georgia Equality, a political action committee promoting LGBT causes and candidates across the state.

In 2021, Mayor Auman tried to land a compromise: a resolution stating that Tucker was welcoming, tolerant, inclusive.

AUMAN: We just felt like something needed to be said, because we're being maligned as well, if you don't pass this law, of course, you hate us and that sort of thing, which is ridiculous. So we passed a resolution as a way of stating our feelings on the subject.”

But that wasn’t enough for some council members. Earlier this month, they placed a first reading on the agenda five days before a meeting.

This version raises the stakes. It would protect perceived sex and perceived gender identity. It could intrude even further on the hiring practices of churches and religious organizations.

Word started to get around. Residents filed through a metal detector—the first time the council has ever used one. Outside the 115-person room, an overflow crowd hoped to get in.

The council heard nearly 90 minutes of public comment, evenly split on support.

Some expressed concerns about religious liberties. Mayor Pro-Tem Anne Lerner brushed off those concerns.

ANNE LERNER, MAYOR PRO-TEM: We’ve heard the past few days we’re taking away religious freedoms and religious rights but there’s a protection there, as you said, the US Constitution, there’s laws that protect that.

But is it really that simple? Again, Greg Baylor:

GREG BAYLOR: Think about Jack Phillips, an ADF client in Colorado who's been in litigation literally for years and years and years. He didn't just say, here's the First Amendment, you can't come after me. He had to go into court and endure years of of time consuming and distressing litigation.

And that’s not the only case. A Colorado website designer has also taken a similar case all the way to the Supreme Court, arguing she shouldn’t be forced to design wedding websites for same-sex couples. The Supreme Court is expected to issue its decision soon.

Back at the meeting, the mayor presented fourteen reasons he’s still opposed to Tucker’s NDO. Among them: Someone could be prosecuted based on how they allegedly “perceived” another person. There’s room in the wording for pedophiles to become a protected class. What happens to a kosher deli, or a halal restaurant? Where’s the evidence of the scope of a discrimination problem? And yes, what about first amendment rights? Auman told attendees:

AUMAN: Diversity of thought, diversity of thought, and the ability to disagree, should not be subject to government punishment.

Auman suggested the council continue to take input, and delay a vote until after the Supreme Court rules in the 303 Creative case. Pastor Bush agrees that slowing down to get thoughtful buy-in is wise.

BUSH; The way this ordinance has been crafted, it is going to bring harm, especially to people of faith.

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