The Senate Judiciary Committee, after extended debate, today refused to endorse HB 1228, Rep. Bob Ballinger’s “conscience protection” bill that is intended to allow people to claim religion as a pretext for discriminating against gay people.
The measure failed on a 4-3 vote, with five needed for recommendation. The four Republicans on the committee — Jeremy Hutchinson, Linda Collins-Smith, Terry Rice and Jon Woods voted aye. Sens. Joyce Elliott, David Johnson and Linda Chesterfield voted no. David Burnett voted present, the same as a no. Hutchinson invited them to return. His uncle, Gov. Asa Hutchinson, had expressed some reservations about unintended consequences and said amendments might be possible.
Sen. Bart Hester, who sponsored another gay-discrimination bill this session, added an amendment that exempted private employers from being sued by a “religious” person over offense to their beliefs. Only an offensive state action could prompt a lawsuit against a state actor. It’s not much of a solution. Any number of state actors could do things that offended the “religious.” The amendment does nothing, of course, to help a gay person who’s been denied a hamburger, an apartment or a job because of his or her sexuality.
The bill could be pulled from committee to the Senate floor, a maneuver that requires only a simple majority of the overwhelmingly Republican chamber. Republicans as a party here and nationally are opposed to equal treatment of gay people. Hester’s SB 202, which just became law, prevents local protections for gay people. It and Ballinger’s bill arose from opposition to the Fayetteville civil rights ordinance aimed at protecting LGBT people.
Ballinger claimed again, that it was almost innocuous, a bill to require strict scrutiny (a high standard) to do something for which someone claims religious protection.
“All we’re trying to say is that a person has a right to believe what they want to believe.” Nobody challenged Ballinger. But the point of the bill is to prevent equal treatment of gay people, even if it has no effect on anyone’s beliefs.
“It would strike a balance between religion and the law,” Ballinger said. It would be a balance, however, that heavily favored an imposition of religion on actions of others.
Sen. David Johnson said, “this launches us into uncharted and worrisome territory.” Sen. Joyce Elliott offered the example of a prison warden who refused to carry out an execution on religious grounds. Ballinger said another employee could be found.
John Wilkerson, an attorney for the Arkansas Municipal League, opposed the bill. He said Texas passed such a bill and there’s been a three-fold increase in religious claims that have cost cities money to defend. If the bill passes there could be dozens of lawsuits in cities where they’ve passed ordinances protecting LGBT people. In other states, he said a Buddhist temple had sued claiming exemption from parking regulations and he said the Texas law has produced different rules for religious and non-religious halfway houses. He offered the example of two book clubs — one studying an Ayn Rand book and the other a Christian group studying the Bible. He said the Bible group could claim exemption from parking regulations, the Ayn Rand group could not.
“We know it’s going to cost us something,” Wilkerson said. “We’re worried it’s going to cost us a lot.”
Paul Byrd, a Little Rock lawyer, spoke for the bill. He said citizens should have a fundamental right to have religious beliefs protected by strict scrutiny.
Bill Kopsky of the Arkansas Public Policy Panel said the bill would return Arkansas “to some of our darkest days of discrimination.”
Mark Whitmore, with the Association of Arkansas Counties, said while state agencies cannot be sued, individual people can. “This bill, this verbiage, is not consistent with federal law.” He said it will add complexity and expense.
Judge Wendell Griffen, speaking for the church he pastors and the Arkansas Interfaith Alliance, said he was born in 1952 and lived first-hand under Jim Crow. “Jim Crow relied on religious grounds. I can quote you chapter and verse.” He said a neighboring church has a substance abuse program. If the bill passes, he said the churches would have to hire a lawyer to fight if someone who lived in the neighborhood said they had a religious right not to be around people with substance abuse problems.
An Army veteran, Griffen said the law would allow a pacifist Quaker to refuse him service because he’s a veteran.
Ballinger said the law was nothing new and rooted in the Civil Rights Act of 1963. Griffen agreed. “This is nothing new …. this is 1896 old, Plessy versus Ferguson, and it is wicked.” The system guarantees not only freedom of religion but freedom from religion, he said. “Please do not take us back down this dark path.”
For a time at least, the path is closed. I doubt it’s over.
The Stonewall Democrats commented:
HB1228 is a thinly veiled effort to use religion to advance animus intent toward the LGBT
community through the legislative process.
We are encouraged that the Judicial Committee voted against HB1228 but our efforts to expose the true animus intent of both SB202 and HB1228 continues.
We ask a legislator to bravely step forward and present a bill to amend the Arkansas Civil Rights Act. The true intent behind SB202 and HB1228 will be evident if a bill is introduced to add five simple words to the Arkansas Civil Rights Act: sexual orientation and gender identity.
If legislators vote no to add those five simple words, the tattered veil hiding the animus intent of
SB202 and HB1228 will flutter away and the discriminatory intent will be in the open for all to see.
ALSO: Some colorful debate preceded a committee decision not to endorse Sen. John Cooper’s bill to prevent consideration of foreign laws in Arkansas courts. This appears to be one of those anti-Sharia law bills that have become popular among right-wingers around the country.
— Reporting by David Koon