In the face of protest in recent days, Arkansas Republicans have tried a number of feints to mask the true intent of the so-called “religious protection” bill making its way through the Arkansas legislature.
When they say it’s not about discrimination, it’s about discrimination.
Here’s Gov. Asa Hutchinson, speaking yesterday at a meeting of a conservative political action committee in Fayetteville:
“Arkansas should not be a discriminatory state,” Hutchinson said, according to the Arkansas Democrat-Gazette. “We should welcome those who want to come here, but we should have respect for religion.”
Guess what else happened at that meeting, a chili supper hosted by the Conservative Arkansas PAC? The group recognized Jeremy Flannigan as its Conservative of the Year. Flannigan, pastor of Pathway Baptist Church in Fayetteville, was a key mover in the repeal effort of Fayetteville’s anti-discrimination ordinance, which added legal protections for LGBT people.
Last week, Sen. Bart Hester, one of the bill’s cosponsors, told reporters, “You certainly cannot legislate meanness in certain people, and people are going to be mean whether we have this law or not.”
This is the same Bart Hester who threatened the University of Arkansas’s budget after UA Chancellor G. David Gearhart wrote a letter to the Fayetteville Chamber of Commerce’s objecting to the Chamber’s opposition to the Fayetteville civil rights ordinance.
Meanwhile, the bill’s sponsor, Rep. Bob Ballinger, has repeatedly claimed that the bill isn’t anti-gay, but rather pro-religion. But here he is back on Feb. 13, when the bill initially cleared the House, from an Arkansas News account:
Ballinger said after the vote that HB 1228 would apply in the case of a baker who refused to make a cake for a gay or transgender person, although he said that “it doesn’t mean you automatically win.”
Ballinger also said he believes that gay rights and civil rights for blacks are different issues because people are born into their race but sexual orientation is “a choice.”
Speaking of not automatically winning in court, that’s true: Someone who discriminates would not automatically be legally in the clear. To be fair to Ballinger and co., it’s a point often lost in the debate surrounding the bill. HB 1228 provides the legal means for someone to ignore a government action (i.e. a law, rule or regulation) if it is a “substantial burden” to the person’s religion (the addition of the word “substantial” to the original bill is probably what Gov. Hutchinson is referring to when he said he would sign the bill as amended after initially suggesting doubts). The person who ignores the government action loses if it can be proven in court that the action in question is “essential to further a compelling governmental interest” and “is the least restrictive means for furthering that governmental interest.”
Ballinger and co. have said repeatedly that HB 1228, the “Religious Freedom Restoration Act,” is substantially modeled after the federal RFRA Act that was sponsored by Democratic Sen. Chuck Schumer and signed into law by President Bill Clinton in 1993. That may be true, but the provenance of the federal RFRA was about addressing a widely disparaged Supreme Court case that said generally applicable laws can “incidentally” burden religious practice without infringing on the First Amendment. The federal RFRA was meant to shore up a blow to the First Amendment, not provide legal sanction for discrimination. Many of the 19 state RFRA laws that Ballinger and others trumpet as proof that Arkansas isn’t doing anything wrong were passed into law in 1993 just after the federal RFRA or in the late ’90s and early 2000s, after a Supreme Court case made clear that the federal RFRA did not apply to the states. Then beginning in 2009, perhaps not coincidentally around the time the legal push for same-sex marriage started to get attention and public support for it started to climb, states like Tennessee (2009), Louisiana (2010), Kentucky (2013), Kansas (2013) and Mississippi (2014) began to introduce RFRAs.
There have not been significant legal victories for discrimination since these states enacted RFRAs (though the Hobby Lobby Supreme Court case could change that), but it’s not hard to imagine bigotry as the practical effect of the law — especially in conservative states like Arkansas.
The federal circuits are split on whether the federal RFRA applies to disputes between private citizens. But the clear language of the Arkansas RFRA, like the one recently passed in Indiana, allows individuals to claim religious protections even in cases where the government isn’t involved.
That sets up situations where religious objectors are less likely to be challenged and more likely to win when they are challenged, argues Pennsylvania labor attorney Jeffrey I. Pasek on Employment Law Daily. Pasek was discussing Indiana’s law, but his points apply to HB 1228.
“At least if someone outright challenges a governmental requirement against government enforcement, we can expect the government to make a reasoned decision about whether to support its requirement and to apply that rationale on an even-handed basis. That is totally lacking here.”
Further, Pasek noted that “Without support of the government, how can any individual job applicant, wedding cake purchaser, or would-be apartment renter be able to uphold the government’s interest? How will such a person be able to compile and present evidence of an actual government interest and not just a theoretical interest? Also, how can a would-be plaintiff in one of these cases establish a less burdensome alternative when the government is the one that would have to choose that alternative and has not been asked for its opinion? In short, this bill goes way beyond the RFRA because it leaves religious objectors in a position where they are much less likely to be challenged and much more likely to prevail.
So Ballinger is right. This bill doesn’t mean that the righteous cake baker automatically wins if she refuses to bake a cake for a transgender person, and there’s a lawsuit. But it certainly makes it harder for the transgender person to seek protection from discrimination in court. Just remember, if they say it’s not about discrimination …