Bring on the court challenges! Someone or another got to Democratic Sen. David Burnett and he flipped, caving and providing the needed fifth vote to pass a couple of Jerry Cox specials out of committee 5-3 yesterday: HB1228,  the so-called “conscience protection” bill from Bob Ballinger which would ensure protection for legal discrimination against gay people and SB939, the bill from Sen. Jason Rapert mandating that the Secretary of State build a monument commemorating the Ten Commandments on the Capitol grounds. 

The bills had stalled in the Senate State Agencies and Governmental Affairs committee. Four of the eight committee members are Democrats, who had blocked the bills (passage required a majority of five). This was an unhappy turn of events for Jerry Cox, head of the Family Council. Discriminating against gay people and displaying the Ten Commandments are important issues for Cox. Sources have told the Times that Cox expressed his displeasure to Gov. Asa Hutchinson — the Family Council and their allies were a core part of Hutchinson’s base, so they wanted him to use his muscle to get the bills out of committee. The story goes that Hutchinson has been putting pressure on Burnett for some time. If that’s true, it worked, though it’s anyone’s guess what the carrot or stick might have been. The Times has asked both Hutchinson and Burnett for comment and we will update this post if they respond. 

Both bills are heading to the Senate, where they are expected to pass. It’s unclear what Hutchinson will do once they get to his desk. Hutchinson has expressed concerns about Ballinger’s bill producing unintended consequences. Retail giant Walmart, meanwhile, publicly opposed the bill, stating that it “sends the wrong message about Arkansas.” Critics have suggested that both Ballinger’s bill and Rapert’s Ten Commandments bill are unconstitutional, and legal challenges are likely. 

Interestingly, Christians could discriminate against gay people if Ballinger’s bill passed but atheists could not, highlighting the same tensions between the First Amendment’s establishment clause and its exercise clause that pop up with regard to peyote. I imagine that if Ballinger’s bill became law, someone would try to use it to claim the right of conscience to take drugs for religious purposes.