Battle over ‘religious freedom’ law may be just beginning
By Roy Ockert Jr.
April 7, 2015
Don’t bet that the battle over “the free exercise of religion” is over despite the April Fool’s Day passage of compromise legislation that satisfied Gov. Asa Hutchinson’s objection to a much stronger bill.
Or should I say a bill that was more to the liking of the governor’s son Seth?
After all, the senior Hutchinson had ignored opposition from such powerful corporations as Wal-Mart, Apple and Axciom, using his influence to pull the highly discriminatory House Bill 1228 out of committee. Otherwise, it might have died when the Legislature adjourned last week.
The governor reasoned that no company would refuse to do business in all 20 states that have adopted “religious freedom” laws.
He underestimated the glare of the national spotlight and overestimated the ability of the Legislature to propose a law no more objectionable than other states that had tried to emulate the federal law that started it all.
Thank goodness that Seth Hutchinson, among many others, pointed out that HB 1228 was a license to discriminate and, if signed into law as his dad had promised, would have put Arkansas in a class by itself. Indiana, our partner in the spotlight, was already extricating itself from a similar fiasco.
Gov. Hutchinson explained that the issue had divided families and clearly demonstrated a generational gap, but it was more than that. HB 1228 was a mean-spirited, knee-jerk attempt to “protect” Arkansas from gay marriage under the pretense of religion.
There is not and never was any threat to the “free exercise of religion.” The First Amendment to the U.S. Constitution still says: “Congress [meaning the government] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”
Somehow baking cakes and taking photos was interpreted as a religious issue for people who find homosexuality distasteful. Whether that gives them the right to discriminate against a class of Americans is the legal question.
At one time the same question could have been raised about the mixing of races in schools, restaurants, bathrooms, etc. As a nation we decided, somewhat reluctantly in many quarters, that was wrong. Was that a violation of the “free exercise of religion?”
Bowing to the governor’s belated objections, the Legislature quickly abandoned HB 1228 and passed a new version, Senate Bill 975, which he signed with a flourish and some relief.
The chief sponsor of HB 1228, chagrinned by the developments, refused to let his bill be amended and instead had it recalled. Afterward, Rep. Bob Ballinger, R-Hindsville, said the law had to be “Arkansas-ized” because of the “misconceptions and confusion” about HB 1228.
Actually, the Legislature made its new “Religious Freedom Restoration Act” more in line with the federal version, as Gov. Hutchinson had requested, which essentially means more vague. Whether we need to restore a freedom that has not been taken away, we now have a law that says so. Since its enactment in 1993, the federal Religious Freedom Restoration Act has done little more than protect the religious practices of Native Americans, including the use of the drug peyote.
What then will the Arkansas law do?
To meet the governor’s request, the Legislature did a hostile takeover of a “shell bill” that had been filed March 9 by Sen. Gary Stubblefield, R-Branch, and recreated the federal law as a state version.
Some critical differences between the final SB 975 and the recalled HB 1228:
• The “exercise of religion” is defined vaguely as “religious exercise.” In HB 1228 it had been defined as “the practice or observance of religion including without limitation the ability to act or refuse to act in a manner substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief;”
• A person is not defined at all. HB 1228 had defined a person as “an individual, association, partnership, corporation, church, religious institution, estate, trust, foundation, or other legal entity;”
A person’s “sincerely held religious beliefs” would have been an enigma for the courts anyway. How do you prove that? By how many times you went to church last year?
Whereas the federal law requires the government to be a party to an individual’s action, the state law can pit one individual against another while in the process of implementing or complying with a law. That leaves the door open, for example, to a county official refusing to issue a license to a gay couple if gay marriage becomes legal in Arkansas.
Whether a person is really just an individual or can be a corporation, business or group would have to be decided by the courts, and there is precedent for the latter.
If so, the law could backfire even on its creators. Let’s say, the Legislature passes a law authorizing any concealed handgun permit carrier to take a weapon into a church, as Rep. Dan Sullivan, R-Jonesboro, proposed in HB 1528, a church that objected could claim its religious freedom was being violated. (HB 1528 never got out of committee, but the issue will be back.)
The case would then turn on whether there was a “compelling governmental interest” in asserting one right over another.
Since the Legislature declared an emergency, SB 975 is now the law of the land in Arkansas. Let the lawsuits begin.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.