With little fanfare this afternoon, the House passed SB 975, a compromise version of the bill originally aimed at creating a religious pretext to discriminate against gay people. The vote was 76-17, with two voting present. The bill was signed shortly afterward by Gov. Asa Hutchinson.
Later in the afternoon, the House recalled HB 1228, which passed both houses and was on his desk when a firestorm of opposition broke out.
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Rep. Bob Ballinger (R-Hindsville), who introduced HB 1228, said the substitute bill was still a good bill for religious protections and said criticism had sparked confusion about his original measure. Rep. Josh Miller (R-Heber Springs) spoke against the bill. He seemed to suggest the governor had been unwilling to take a stand on the bill and was “hiding” behind the legislature in getting it to make changes.
A weird mix were among the 17 nays, five not voting and two voting present (which is the same as a ‘no’). They included Republicans like Miller and several liberal Democrats. The bill is problematic without an anti-discrimination provision, which explains the Democratic opposition. And problematic in other ways, too. I look forward to a case like the one in Florida where a follower of a Caribbean religion objected to local zoning ordinances that restricted his growing and slaughtering of chickens for a ritual sacrifice.
Ballinger returned to the well to ask that his bill be recalled rather than vetoed, which would suggest something had been wrong with it. A couple of representatives objected. But Rep. Kim Hammer (R-Benton) said the sponsor of the bill should be granted the courtesy of a recall. Ballinger said the substitute substantially accomplished what he’d set out to do with HB 1228, a point on which I tend to agree.
With that action, the House recessed until a ritual final adjournment in May. They are done, in other words, unless a need to correct something or another unexpected happenstance arises. That news drew cheers from the House. It was a session in which Republican orthodoxy was rigidly followed — to the benefit of the wealthy and detriment of the poor, women’s medical rights and gay people. Today’s bill, though it represented a small concession by opponents of gay rights, still was a setback, and it was on top of the bill meant to prevent local protections for gay employment, housing and public accommodation rights. A bill to expand the state civil rights law to sexual orientation and gender identity died weeks ago in committee because of deep Republican opposition.
Hutchinson created the drama of the final hours by heartily approving and swinging a critical vote on approval of HB 1228, a fact that should temper any praise people want to offer for his belated cave-in to corporate pressure about the ill effects of the bill he’d vowed repeatedly to sign. He suffered a similar misstep in backing a bill to allow private companies to take over the Little Rock School District, a bill that cratered in the face of an enormous public outcry. And, in the course of giving a big income tax cut, he either was disingenuous or miscalculated in attempting first to curb a capital gains tax cut for the wealthy. The rich people got back the full capital gains cut in the end, and libraries, health clinics and other services had to pay the price.
Continue to the jump for what David Koon recorded at the governor’s meeting with reporters and also for reports on developments earlier in the day.
After thanking those in the legislature who worked to build a coalition behind, craft and pass SB 975, Gov. Hutchinson said that SB 975 meets the goals he hoped it would meet when he asked the legislature to bring HB 1228 more in line with the federal Religious Freedom Restoration Act.
“This bill is bi-partisan, it has received support in both houses, it protects religious freedom,” Hutchinson said. “It is a framework for decisions by the courts that have to balance all the issues in our society. It continues to recognize that in Arkansas and across our nation, we have a diverse workforce, and a diverse culture.”
Hutchinson personally thanked Rep. Bob Ballinger for his leadership, then thanked Rep. Eddie Armstrong (D-North Little Rock) and Sen. Linda Chesterfield (D-Little Rock) for their passion. “I know it’s been a contentious debate,” Hutchinson said. “We’ve resolved it in an Arkansas way and in the right way for our country and the people of Arkansas.”
After signing the bill — which he joked “I have read” — Hutchinson took brief questions. Because of an emergency clause, the bill is now law.
Asked about whether he would issue an executive order related to the bill to protect state workers, Hutchinson said: “Our full focus has been on this effort. This is the most critical piece of the puzzle. I’ll continue to work on that and address that down the road. That’s still an option, but this is the most important thing we were able to accomplish today.” Asked if SB 975 goes far enough, in that it doesn’t include language that specifically prohibits religion-based discrimination, Hutchinson said, “As I said yesterday, this debate goes on. The fact that it might not solve every problem for everyone probably means that it’s a good bill.” Hutchinson said that SB 975 does the three things he outlined yesterday as concerns: protects religious freedom, establishes a balance, and “recognizes the diversity of our culture.”
“That’s the Arkansas solution. I think it sends the right signal that this has been resolved, to the world and to the country, that Arkansas understands the diversity of our culture and workforce, but also the need to balance that with our sincerely held religious convictions.”
It does not, however, add any measure of civil rights protection for gay people, who have none in Arkansas. In Indiana, where similar legislation started a firestorm that spread to Arkansas, the legislative fix DOES include civil rights protections for gay people.
After the signing, David Koon caught up with Sen. Joyce Elliott (D-Little Rock), who was one of the main legislative opponents of HB 1228. She worked late into the night on Wednesday helping to craft SB 975. She said that the bill doesn’t go as far as she would have hoped, but is still better than HB 1228 and is a compromise that should take the negative spotlight off the state.
“If I could could do this my way,” Elliott said, “we would have explicit language in the bill about no discrimination … under any circumstances. But I think this does set a standard for the intent of how we want to enforce civil rights for everybody in our state.”
Elliott said this is one of those issues that reminds people who important it is to turn out on Election Day and vote for the candidate who will best serve the state. “There are few progressives in this legislature,” she said. “Elections matter. This is one of those issues that speaks loudly about what we’re able to do because of who makes up the legislative body.”
Elliott said that while someone could still hang a “No Gays Allowed” sign in their business, SB 975 establishes that it’s not what the legislature was trying to accomplish. “It’s not 1228, which gave explicit notice, practically, to businesses that it is okay for you to discriminate. This bill tries, at least, to create some balance and say: We don’t believe it’s okay. … We have work to do on making sure we get protections for LGBT people in our state. I think we’re wrong if we take this as anything more than a step. But I think we’re equally as wrong if we don’t take it as a step to keep moving forward.”
ACLU-Arkansas Staff Attorney Holly Dickson, who was standing outside the Governor’s conference room as the bill was signed, said that while SB 975 is not a win for Arkansas, “it is not a skunk like 1228 was.”
Dickson said that the bill should have included explicit language that protected against discrimination against minorities, including LGBT people.
“We’ve known since the 1990s that the federal RFRA has been used to justify discrimination, even against unmarried straight couples. That was fair warning that we needed to have explicit protections for Civil Rights… Including that exclusion does not negate the negative potential effects of this, but it does go a certain distance to show good faith support for Arkansans and all out our rights.”
Dickson said that the task force which convened in 1991 to study what should be included in the state’s Civil Rights Law (passed in 1993, the same year as the federal RFRA) endorsed the inclusion of prohibitions against discrimination on the basis of sexual orientation.
“That was the right solution for Arkansas over 20 years ago,” Dickson said. “That would be the right solution for Arkansas today. We are ending this session on a low note. Certainly supporters of equality, fairness and keeping Arkansas a land of opportunity are not going anywhere. I expect we’ll continue to see the public voice their support for fairness and equality in our state.”
EARLIER, FROM BENJI AND MAX:
With little discussion, the House Judiciary Committee this morning approved SB 975 which tailors a proposed state “religious freedom” bill to narrowly track a federal version of the law, the Religious Freedom Restoration Act, or RFRA.
UALR Law Professor John DiPippa offered guarded approval of the measure. He said the changes between this bill and HB 1228 were a welcome move toward balancing religious freedom interests with a desire not to harm others, but he also said the measure didn’t go far enough to protect the civil rights of all.
He said SB 975 was “a good first step” by providing “common language that this state and other courts can now speak” in regards to the balancing of religious freedom with civil liberties. But he said that his thinking about RFRAs in generals had evolved, and that he was worried they had the potential to do more harm than good.
“I used to favor these bills,” he said, referring to the federal RFRA, but “I’ve changed my mind about their value.”
SB 975 is a hurryup compromise because of Gov. Asa Hutchinson’s last-minute decision — after a storm of protest from corporate leaders and gay rights activists — to ask for an alternative to HB 1228. That bill was written to make it easy for people to claim a religious justification in private business to discriminating against gay people. The revised version tracks the federal law, passed during the Clinton Administration to restore some religious practices curbed in court rulings. Since then, efforts have been made to use these religious statutes in such ways as to prevent coverage of contraception in private companies’ health insurance policies.
Leaders of companies such as Walmart, Apple and Acxiom — along with many others — have said the law in Indiana and in Arkansas were written to prevent the extension of civil rights protection to gay people.
ACLU director Rita Sklar told the committee she still could not support the SB 975. She acknowledged that the ACLU did support the federal RFRA back in 1993, which she noted was also the same year Arkansas passed its civil rights act. But, she said, in the intervening decades, the organization has concluded the federal law was flawed in its tendency to grant weight to religious liberty over civil rights. It, too, has been used to justify discrimination in some cases, she said.
“The 1993 federal RFRA is not a solution for Arkansas in 2015,” she said. The legislature needs to do two things if it’s serious about remedying the “black eye” caused by the firestorm over HB 1228, she added: First, add language to SB 975 that explicitly protects against discrimination, and second, add protection to classes that are currently missing from the civil rights act, including age, veteran or military status, and gender identity and sexual orientation.
Jackie Martin, a citizen from Quitman, said she was worried SB 975 wouldn’t provide enough protection for her religious beliefs. She plays piano at her church and is worried that she could be sued if she refused to perform in a setting that offended her deeply held convictions. “When I compare HB 1228 to SB 975 … protections have been taken out,” she said. She said she was “frightened” of having a lawsuit filed against her and that “at this point I really don’t think I can continue [playing music].”
Martin said she’d never been asked to play at a same-sex wedding or similar setting. She said she spoke out today because she felt “the LGBT movement seems to be singling out Christians.”
Passage of 975 seems to indicate Gov. Hutchinson’s talks this morning with Sen. Gary Stubblefield apparently were fruitful. Rep. Ballinger, who presented the bill in committee, had said he wouldn’t propose the bill unless he won agreement from Stubblefield, who was the original sponsor of 975. It was a bill initially written for another purpose, with old language removed and the new proposal inserted. Stubblefield had resisted the change yesterday.
The bill now goes to the House. Presumably, if it passes, Hutchinson will be free to veto HB 1228 without fear of an override. Or, the House could recall HB 1228 from the governor’s desk and spare Hutchinson the symbolic measure of vetoing the bill. A legislator said after the meeting that that’s likely to happen, assuming SB 975 passes the House. Another legislator — a senator — told me later in the day that he thinks the House will refuse a recall.
Hutchinson has also said he would consider an executive order pertaining to state employees, but as yet hasn’t been more specific, even as to whether he’d explicitly reference LGBT people.
The Family Council is supporting SB 975, if a bit grudgingly. Jerry Cox said in a statement, “We are still urging Governor Hutchinson to sign House Bill 1228 … if the Arkansas General Assembly passes Senate Bill 975, most of what we were trying to accomplish will have been done. The original religious freedom bill, H.B. 1228, was the Rolls Royce of religious freedom laws. S.B. 975, the replacement bill, is a Cadillac.”
The Citizens First Congress, which was one of several groups rallying opposition to HB 1228, issued a measured statement that welcomed improvements in the original legislation but noted continuing flaws. It also noted Tom Cotton’s incendiary remarks reported earlier that “perspective” was needed by critics — such as the hanging of gay people in Iran.
The Arkansas Citizens First Congress appreciates the Governor and General Assembly being willing to step back and realize the flaws and discrimination contained in HB1228.
While we don’t believe Arkansas needs any new legislation to protect religious freedom, SB975, mirroring the federal RFRA is a better option than HB1228, and could be made even stronger by adding a nondiscrimination clause. We can not afford to return to the dark days of discrimination that HB1228 would bring.
“Lawmakers should make sure that no one in Arkansas can lose their job or be denied opportunity because of who they are or who they love,” says CFC Co-Chair William El-Amin. “We hope the passion generated by this bill will propel Arkansas into a full discussion about discrimination in our state.”
Let’s have an honest conversation that is informed with the data and stories that show all of the barriers different groups of Arkansans face to achieve opportunity and the American dream. Let’s move forward and create more opportunity, not try to take someone else’s!
The statement by our US Senator Tom Cotton illustrates the hatred and intolerance Arkansas law must protect against. His statement that protecting Arkansans from discrimination is not a credible priority for our state and that people who are gay should feel lucky they are not hanged is dangerous and offensive. Senator Cotton’s extremism is in sharp contrast to the bipartisan effort in the Arkansas legislature to arrive at a compromise that will work for Arkansas. We are ALL Arkansans and we need to keep DC polarized politics out of Arkansas where bipartisan cooperation on important issues is still possible.