Georgia Lawmaker, Representative Jason Spencer (R- Woodbine), came under fire from both sides of the aisle when he pre-filed legislation that could potentially ban the wearing of burqas and other masks using Georgia’s decades old anti-masking statue.
Spencer stated that the bill would simply be “adding clarity” to the existing law. Since the aftermath of dropping the bill, there has been a flurry of conversations supporting and rejecting the bill. Spencer still affirms that his anti-masking bill meets constitutional muster and has been validated by legal scholars.
I interviewed Representative Spencer to explain the intent of his legislation for the upcoming 2017 Georgia legislative session.
Q: What was the purpose of filing the bill?
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A: The purpose of filing the bill was to seek clarity in Georgia law and to codify existing regulations that put forth the policy on face coverings for a photo ID for our [Georgia] statute. Our statute isn’t clear on that policy.
Q: Although you do not mention the word “burqa” in the bill, some felt you were directly targeting Muslim women, was that your intention?
A: No. The intent is not to target a specific group. The intent was to make the law general, which it is, to apply broadly to the public… at hand, engage the conduct into trying to conceal their face…or try to do so to seek anonymity to conduct a violent act. That was the point of the bill. Also, another section of the bill was to codify current state policy into statute. Our current state statute is not clear, and the only reference to a photograph on a photo ID of a driver’s license only mentions the words “color photograph.” So, a colored photograph could mean anybody’s face that could be concealed by a mask or veil. I wanted to make sure our policy was codified in the statute because it is easier to change a regulation than a law. It should be clear what the wishes of the General Assembly are, and I don’t think the executive branch should be making that policy – although they did in this regulation which is a good policy. I think that needs to be codified.
The current regulation does not change a regulation if it was challenged. All you need is a set of bureaucrats that are friendly to a certain group of people and accommodate…if they are going to try to use that regulation to their favor to advance their agenda, I think that is dangerous. I think if we have a policy set out in regulation, I think the General Assembly needs to make clear that is our policy. The only way to do that, without the executive branch to change policy, is for the General Assembly to state the statute clearly.
Q: What was your legislative strategy for dropping such controversial legislation?
A: I was not unaware that this bill would be unpopular with some groups. So, in order to break the ice, if you will, on a matter like this, you do have to “test the waters.” You do have to gauge what reactions will come and what reactions you will get. All it takes is a situation where you have people who will exploit the use of concealment for religious purposes or freedom of speech to advance a nefarious act. These things have been done all over the world. There are instances where there are burqa clad bombers have used that to bomb an embassy in Kabul . A senior leader of Al Qaeda was captured wearing a burqa.
Q: How do you reconcile the free exercise argument against the genuine public safety threats and national security threat?
A: With this bill, it stands up to the legal scrutiny. The purpose of the current anti-masking laws was to address the Ku Klux Klan using masks to conceal their identity. The history of the Klan was local government officials that were involved in perpetrating terrorist acts and one of the reasons to conceal their identity so that they would not have findings of government influence in the perpetrating of terrorist acts. So, there was a substantial compelling government interest. That is a standard used in these analyses by the courts. In Georgia, the anti-masking statute I sought to amend was upheld in a 1990 case called State vs. Miller. The lower court struck it down as unconstitutional and a violation of the freedom of speech for Klansman…and in this case, it was upheld by the Georgia Supreme Court in a narrow interpretation saying there was a compelling government interest to intervene and regulate the conduct of these masked perpetrators. The court interpreted that this was not a violation of free speech because they [Klansman] were engaging in acts or about to engage in acts of violence…and this would be the standard to prosecute.
The free exercise of religion is another issue, and Georgia does not have a RIFRA (Religious Freedom Restoration Act) law. In Florida, there was a case in 2002 called Freeman vs. Florida where a Muslim woman would take a photo without removing her veil. The state Florida does have a RIFRA statute, and Florida determined that her free exercise of religion was not substantially burdened. That is the standard in Florida’s RIFRA law…because it would only take a few minutes to removal her veil that would not be a substantial burden on her free exercise of religion.
Q: Why not bring this topic up in a caucus meeting before the legislative session starts? Why would that not be a better venue to tryout or discuss a bill such as this before pre-filing it?
A: That is certainly a strategy to pursue. You are going to have people oppose you no matter what legislation you peruse. A piece of legislation like this, although unpopular, sometimes you have to gauge the public interest to see where this is at. I have had mixed comments emails, and many of it is supportive, and some are as equally opposing the legislation. My strategy was to see what reaction it [legislation] would get. There will be others in the future that will put in legislation like this across the country, and they will learn from this situation… it will happen in other states. This [bill] is a “test the waters” moment for this type of policy.
Q: Do you think it would have been better just to target masking in driver’s licenses rather than including public way?
A: I do not see how you can separate the two because the anti-masking statute already mentions the public way. What I was seeking to do in section one of the bill was to clarify that the public way, operation of a vehicle in the public way while masked, was in violation of the anti-masking statute. You have to put the two together in my view to codify the current statute.
Q: Other countries in the west have banned burqas, such as France, for security and social reasons, will something like this meet constitutional muster here in the US? You say it will, how will it?
A: I think when the government has to prove a compelling interest by assessing threats in real time. The only way to do a real-time threat assessment is to actually identify the perpetrator in the act….if the [government] cannot identify the criminal because they are concealed, the real-time threat assessment cannot be done. We have seen this in France who have moved to ban concealment of Muslim garb around the face… and it is important the government continue to refer to that compelling interest with security in public places.
I think the US is unique to advance a policy like this because it will be tougher to make a compelling interest. You would first have to do it at the federal level where federal RIFRA standards you have to meet to make the claim that we [the government] are not substantially burdening someone’s free exercise of religion. This boils down to a compelling national security interest. I think you can make the case since post 9-11, and with several acts terrorism by radical Islam in the US has increased in the last few years, that is where the US differs because we are a constitutional republic …we have hurdles and checks-and-balances we must obtain in order to pursue a policy like this to protect the public. In France, they are parliamentary, and are not as sensitive to the free exercise of religion as seen here the United States. I think this bill would meet constitutional muster. States are going to have to be in the forefront of this because we are the ones to write the rules of the roads and police powers.
Q: Based on what you have learned about dropping this bill here in Georgia, what would be your best suggestion about how to go about this again for other states?
A: For someone to drop a bill such as this, they would need to build a coalition beforehand. For me, this was a simple experiment as to who would immediately would oppose such a bill. That gives me a lot of information as to what would move forward on a strategy to advance national security from preventing radical elements that would use the First Amendment against our own people. As a foreseeable threat, the radicals are going to use our constitutional system of checks-and-balances to perpetrate acts upon us. If we are not proactive, we are going regret that. The left’s outrage machine will move quickly if there is not a board coalition built first to anyone wanting to drop similar legislation in their state. Their media messaging needs to be key as to why they are doing it and build a strong case as to how this will meet constitutional scrutiny. Also, relying on parallel anti-masking laws that are interpreted that one cannot wear masks while inciting violence or intending to incite violence.
Q: To your critics that came out against you aligned to Muslim groups and some state senate leaders, what would you say to them about this bill and their reaction?
A: I pulled the bill due to the visceral reaction which was apparent. If you are going to seize the hill with 100 men, and you have 2000 men coming back at you, you need to regroup. They are entitled to their opinion; much of it was visceral. They did not read the bill and only read headlines spun by the left-wing media. When that happens, you get a herd mentality that was great and anyone wanting to pursue legislation like this will need to be ready to deal with that. This is a warning shot to radicals. We have cracked the code here because the radicals know we are on to them. The US is not going to subject their citizens to this type of terrorism without a fight.