A bill by Rep. Bob Ballinger (R-Hindsville) entitled the Conscience Protection Act passed the House Judiciary committee today on a voice vote. Along with Sen. Bart Hester’s SB 202, the legislation is widely seen as a conservative response to Fayetteville’s attempt last fall to prohibit housing or employment discrimination against LGBT people and other groups via a city ordinance.
Ballinger’s bill is based on a federal law called the Religious Freedom Restoration Act, or RFRA (commonly pronounced “RIF-rah”), which figured prominently in the U.S. Supreme Court’s famous Hobby Lobby decision allowing private companies an exemption to the ACA’s contraceptive coverage mandate for employers. RFRA says that the federal government can’t infringe upon people’s practice of their religion unless there’s a “compelling state interest” in doing so, but the Supreme Court has ruled that its standards aren’t applicable to state or local law. Ballinger told the committee today that 38 other states already have their own state-level RFRAs.
‘It takes an incremental step,” Ballinger said. “This gives a tool for citizen to say, ‘hold on a second, this does infringe on my First Amendment rights’ and allow them to adjudicate that.” For example, “If it’s a butcher who’s a Muslim, you can’t force them to deal in pork. If it’s a Christian who doesn’t believe in same-sex marriage, you can’t force them to participate.”
Under the federal RFRA, the law can only impose a “substantial burden” on the practice of religion if there’s a “compelling governmental interest” in doing so. (And it mandates a judicial review standard of strict scrutiny in such cases.)
There’s nothing at all wrong with that in principal — religious groups deserve protection under the law just like other groups do, as illustrated by the Supreme Court’s recent ruling against the Arkansas Department of Corrections in the case of a Muslim inmate who was forbidden from growing a beard. The problems occur when the rights of the faithful sometimes conflict with the rights of other classes of persons who aren’t currently fully protected under law, such as LGBT folks. (The “gay cake wars” are a prime example.) Should a religious group have the right to discriminate against another minority?
Marie Maynard O’Connell, a Presbyterian minister from Little Rock, said no. “Our rights as Christians are not the ones that are really under threat today… the reason this bill is before you is it was thought that the Fayetteville ordinance somehow threatened people’s religious rights, their religious beliefs.” On the other hand, she said, “There are people who are not protected, whose civil rights are not engaged … I ended up joining the board of CAR because I was troubled by how many LGBT youth contemplate suicide … as a Christian sometimes we are called to stand on the side of those who don’t have rights.” Frank LeBlanc, another Presbyterian minister, also spoke against the bill. “Discrimination is not holy, and I urge you not to take us back to times before 1964,” he said.
Jerry Cox, president of the conservative Arkansas Family Council, was one of several citizens speaking in favor of the bill. “If you talk to people in your districts, I think you’ll find an uneasiness with the idea that religious freedom has been relegated to a second class freedom.” The bill simply “restores First Amendment rights,” said Cox. Jonesboro lawyer Stephanie Nickels, who fought against the Fayetteville civil rights ordinance, said “the real issue is protecting freedom of belief … Last year in my First Amendment work, I ended up representing 12 churches with a total membership of over 10,000 citizens, because they were scared to death that their rights were going to be curtailed by the city of Fayetteville.”
Speaking against the bill from another angle were representatives from associations representing Arkansas counties, municipalities and school boards, which are concerned the law could open the door to a wave of lawsuits from people claiming religious exemptions to existing law. “The Arkansas Constitution already protects religious freedoms and conscience rights,” said Mike Mosely of the Muncipal League. “This would be duplicative … and encourage new lawsuits.” He noted that Arkansas’ civil rights act already gives individuals the ability to sue based on a violation of their right to freedom of religion.
(Note that LGBT people are not one of the classes protected under that statewide act — which is exactly why the city of Fayetteville tried to create a municipal law to protect them.)
After the meeting, Ballinger said the bill was not a direct response to Fayetteville’s ordinance but that “Fayetteville did prove there’s a need” for a state-level RFRA. Ballinger said he coordinated with Sen. Hester on SB 202, but “the RFRA was coming no matter what … I ran the same bill two years ago.”
“The reality is that ordinance would have really hurt some people in their practice of religion,” he said. (Ballinger was among those who testified against the ordinance before the Fayetteville City Council last fall.) “There are people with deeply held religious beliefs who would have been required to perform some ceremonies that they believe is inconsistent with that. … There was a debate about whether a church school would have to hire a second-grade teacher who was transgender because they have an opening … Under the ordinance, they would have been criminally liable for that, but with the RFRA, they would have had a defense to say “hold on, that’s not consistent with a deeply held religious belief’ and then that balance would have to be struck”
Yet he also acknowledged that LGBT people may see the bill negatively. “If I were in their shoes, I may feel that way, because it’s easy if you’re a person or group that has been victimized to feel like you’re still being victimized.”
However, Ballinger believes “that’s not what this is about. The reality is that Arkansas has a little less protection than most states on their religious exemptions, and we just really need to look at that and ask why religion is not protected as well in Arkansas as in other states.” He emphasized that the bill is about “striking a balance” between competing interests.
“Even if you create a protected class, this ordinance doesn’t say that religion automatically wins. It says you have to have some sort of compelling governmental reason and this is the least restrictive. All it does is say ‘lets talk about this’ with a focus that says ‘religion is really, really important.'” He said the bill is especially important to protect the rights of religious minorities. “I don’t care whether your religion is Christian, Judaism … You have to strike that balance and make that choice.”
In theory, this makes sense. But in practice, Christians and LGBT people are not classes on equal footing, either in the eyes of the law or society. (Nor are they mutually exclusive categories, though that’s another issue.) O’Connell is right — while LGBT people are still unprotected by the Constitution as a class, Christians are hardly in danger of being marginalized in Arkansas. Every day that the state legislature convenes, it opens with a prayer to Jesus Christ. The state Constitution still forbids atheists from holding public office or serving on juries, because religion is that deeply woven into the cultural fabric of Arkansas politics, for better or worse. If there’s a balancing act to be performed in weighing freedom of religion against gender/sexual discrimination, which side of the scale really needs the state’s attention?