RFRA Battle Moves Beyond Indiana

Arkansas, North Carolina, and Virginia may soon see the same battle over RFRA laws that is playing itself out in Indiana

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As Governor Mike Pence and Republican legislators in Indiana lick their wounds over the battle over the Hoosier State’s version of the Religious Freedom Restoration Act and the national uproar that has accompanied it, Republicans in Arkansas are moving forward with their own version of the law even as national attention shifts south:

WASHINGTON — Arkansas passed a religious freedom bill on Tuesday that is similar to an Indiana law that has faced national backlash for legalizing discrimination against lesbian, gay, bisexual and transgender people.

The bill cleared the Arkansas Legislature and now heads to the governor’s desk, where it is expected to be signed. Like the Indiana law, the Arkansas legislation allows a person who feels his or her exercise of religion has been “substantially burdened” to cite that argument as a claim or defense in a private lawsuit. The legislation also grants corporations the right to religious freedom. This language is not in the federal Religious Freedom Restoration Act (RFRA), and critics say it could be used to override existing anti-discrimination protections.

“The Arkansas and Indiana bills are virtually identical in terms of language and intent,” said Sarah Warbelow, legal director at the Human Rights Campaign. “They place LGBT people, people of color, religious minorities, women and many more people at risk of discrimination.”

Indiana Gov. Mike Pence (R) defended his state’s law on Tuesday, calling for a legislative fix that would clarify that the law does not allow businesses to discriminate. Earlier in the week, Arkansas lawmakers also tried to head off concerns about that state’s bill,approving language that says “the General Assembly finds that it is a compelling governmental interest to comply with federal civil rights laws.”

However, according to Eunice Rho, advocacy and policy counsel at the ACLU, federal civil rights laws have no explicit protections for LGBT people, and this legislative finding — while helpful — is not part of the law. “If the Arkansas Legislature is serious about preventing discrimination, they need to write it into the actual code,” she said.

“We would like to see both Indiana and Arkansas adopt language clarifying that the state RFRA cannot be used to undermine federal, state or local non-discrimination laws,” Warbelow said.

During Monday’s committee hearing, some lawmakers raised concerns about the bill being inconsistent with federal and state RFRA laws when it comes to protecting civil rights. Some proposed a simple solution: adding a non-discrimination disclaimer to the legislation.

“It’s not a philosophical debate with me at this point. I think we’re going well beyond the other states,” said state Rep. Camille Bennett (D), who ultimately voted against the bill.

But the bill’s author, state Rep. Bob Ballinger (R), said its language was staying put, and that it would be too confusing to try to define what constitutes discrimination.

“If that means that you can force somebody who has deeply held religious beliefs to engage in some activity that violates their deeply held religious beliefs, and that the state has the right to force them into doing it, I can’t say that I do agree with that,” he said.

While the bill awaits Governor Hutchinson’s expected signature, though, it is coming under criticism from some of the state’s biggest employers:

LITTLE ROCK, Ark. — Local and state leaders and organizations urged Arkansas Gov. Asa Hutchinsonto veto House Bill 1228 — the “Religious Freedom Restoration Act” — and raised concerns about what the measure could mean for the future of business in the Natural State.

The full House passed the “religious freedom” bill Tuesday afternoon after three concurred amendments passed the House Judiciary Committee on Monday. The measure was originally sponsored by Republican Rep. Bob Ballinger of Hindsville. Hutchinson has said he will sign the bill into law.

Retail giant Walmart, headquartered in Bentonville, posted a statement to Twitter on Tuesday saying that HB 1228 does does not reflect the company’s values, and urged Hutchinson to veto the legislation.

On Monday, Acxiom Corp., one of Arkansas’ largest employers and a longtime supporter of workplace diversity, announced the marketing technology company’s firm opposition to the bill. In a letter to the governor, the company wrote, “The bill inflicts pain on some of our citizens and disgrace upon us all.”

Little Rock Mayor Mark Stodola encouraged Hutchinson to veto the bill. In a press release Tuesday he stated, “Any piece of legislation that is so divisive cannot possibly be good for the state of Arkansas and its people.”

“There certainly is that impression that it would be a negative step,” said state economic forecaster Michael Pakko. He said it’s not clear if there would be drastic implications for the state if the bill becomes law, but it would affect some business decisions, especially for companies that have taken a stance against the bill.

“There is a likelihood this bill would cause confusion more than anything else, and that alone could have some negative impact on the economy,” Pakko said.

“It’s just not the way to do business, and we’re not going to do it that way,” said North Little Rock Chamber of Commerce CEO Terry Hartwick.

There is also a similar bill pending in the Republican controlled North Carolina legislature, but Governor Pat McCrory, who is also a Republican, is publicly criticizing the bill in a way that suggests he might veto it if it gets to his desk:

Gov. Pat McCrory told a Charlotte radio host Monday that he opposes a bill that would allow magistrates to opt out of performing weddings and didn’t see the need for a broader religious freedom bill.

“What is the problem they’re trying to solve?” McCrory asked during Monday’s broadcast of WFAE’s Charlotte Talks program.

Large parts of the program focused on situations where McCrory had differences with conservative Republicans at the state legislature, particularly in the state Senate.

Senators have already passed a bill that would allow magistrates opt out of performing weddings if they have a “sincere religious objection” to performing particular ceremonies. The measure, which is now making its way through the House, is seen as a way to shield magistrates who do not want to perform same-sex marriages.

North Carolina’s constitutional amendment and a related law blocking same-sex marriages was overturned by a federal court last year.

“At this time, I would not sign it the way it’s written because … I don’t think you should have an exemption or a carve-out when you swore an oath to the constitution of North Carolina or to the Constitution of the United States of America,” McCrory said.

During the same discussion, McCrory said he didn’t see the need for a broader religious freedom bill that would protect a number of businesses and state officials from liability should they refuse service based on their personal religious beliefs. The topic of the “Religious Freedom Restoration Act” was at the center of national media attention this weekend, as leaders of large companies said they did not want to do businesses in states that pass such legislation.

Finally, there is also a RFRA bill pending in Virginia, however in that case it seems unlikely that the bill will pass. Presently, the bill is in Committee in the House of Delegates, which does not meet again until mid-April at which point it is likely to be spending the majority of its time dealing with state budget issues. Given the outcry over the Indiana law, it seems likely that the bill may never get out of committee but, even if it does and it manages to make its way to Governor McAuliffe’s desk, it seems likely that he would veto the bill and there simply aren’t enough Republican votes in the General Assembly to override a veto unless a whole lot of Democrats defect, which seems unlikely.

Leaving aside for the moment the argument about whether or not RFRA is a good idea beyond the same-sex marriage debate, and as I’ve stated before I think that there’s a good argument that these laws are a bad idea, it seems clear that what happened in Indiana ought to be a lesson for other states that are considering these types of laws. While in the past it may have been possible to pain these laws as little more than a response to a Supreme Court decision regarding the use of peyote by Native Americans, in today’s cultural context it is clearly seen as an attack by the forces opposed to same-sex marriage. The fact that comments by legislators who have supported these laws recently in Indiana and elsewhere has made it clear that this was precisely their motivation notwithstanding the appeals to religious liberty and the insistence of those such as Governor Pence that the laws were not intended to legitimize or excuse discrimination based on sexual orientation. Shaking this perception is not going to be easy after what happened in Indiana.

More broadly, though, the outcry over the Indiana law is yet another indication of the cultural and political shift that has occurred over the issue of gay and lesbian relationships:

Public opposition to the bill drowned out support for it, but businesses likely made the difference. Apple is a fairly liberal company; Angie’s List is not. Accenture and Eli Lilly and Levis aren’t exactly known for staking out positions on the far left of the political spectrum. That the NCAA turned the screws even slightly in the state that houses its headquarters — and which must be one of the states most friendly to its product (see: Hoosiers) – seems, stepping back a bit, to be remarkable. I mean, NASCAR opposed the bill. Being anti-gay is bad for business, and being bad for business is bad politics.

The issue of same-sex relationships will come up again, especially as the 2016 Republican presidential primaries approach. Indiana’s law is the sort of thing that offers a safe space for 2016 candidates, allowing them to avoid having to speak out against gay marriage if they don’t want to (some weren’t worried about it) but to still appeal to the most conservative element of the base. And, sure enough, most offered their support for Indiana’s bill. Whether or not the more viable of those candidates criticize Pence’s call for amendment remains to be seen, though.

But the battle in Indiana is over. And barring some dramatic shift, so is the war over the status of gay relationships in the United States. Millennialssee homosexual relationships as morally preferable to casual sexual ones. It seems hard to believe that, in a decade or two, they’ll see this moment as part of an still-potent struggle, rather than as a footnote to a years-long change in the country’s politics.

And that, I think is really the important point. The battle over the conflict between gay rights and what some people contend are matters of religious liberty will continue after the same-sex marriage itself comes to an end. For the right, it will be seen as part of the effort to fight a rear guard action in a cultural war that they have already lost. For the left, it will be seen as recognition of the fact that, from their point of view, the battle over same-sex marriage has only been one skirmish in a broader battle. Given the way the culture has moved, as demonstrated most clearly by the overwhelmingly negative response from the business community, it seems fairly clear how this will end, though.

FILED UNDER: Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. CSK says:

    Well, I have to ask again, how does refusing to bake a cake for a gay couple because they’re gay NOT constitute discrimination? How does it not open the door for anyone to discriminate anyone else for any alleged religious reason? What about fundamentalist Protestants who think Roman Catholics are the spawn of Satan? Could a fundamentalist florist refuse to provide flowers for a Roman Catholic, Lutheran, or Anglican funeral? What about a fundamentalist Muslim refusing to provide goods or services to infidels?

  2. Tillman says:

    To be precise, Governor McCrory has only said he won’t sign it. Under NC law, a bill passed by the legislature still becomes law without the governor’s signature after thirty days. He has to expressly veto it.

    To be fair, he’s got time to read the politics of it, and I don’t think McCrory is stupid enough to let the bill become law. He might be hoping people who didn’t vote for him will rattle the chains and get some momentum against the bill in a month, point to Indiana, etc, and keep him from having to make an easy decision that pisses off a voting constituency.

  3. Robert in SF says:

    I continue to focus on the commercial side of the transaction, to help alleviate the coming-tide of objections that without this law, priests and pastors will be forced to officiate and bless same-sex marriages. How cleanly can we separate religious freedom from commercial practice?

    I think religious observance and religious practice and religious beliefs are hard to distinguish legally for the laity (non-clergy and non-clergy related activities). Does it only become religious practices if used during or directly supporting worship, in a church or in direct fellowship, such as a Bible study session?

    Or do the day to day interactions that someone has with others count?

    Could a person who has a religious objection (with citable reference in their religious text, teachings, or history) to men dealing with women who aren’t their family/wife, mean they are immune from discrimination laws in hiring or serving in their business, and now with bold, unmasked impunity?

    Could a person who has a sincerely held religious belief not medically treat a woman who is ‘unclean’ due to her menstruation?

    Could someone refuse to teach students about non-Biblical based science or history topics due to their religious beliefs (not practices or worship activities, but beliefs/education)?

    Could a judge refuse to grants divorces, or adoption to create mixed race or religious families, could a cook refuse to cook certain foods for others to eat?

    These are all commercial practices dealing with employment to execute civil arrangements based on non-religious activities…yet, a person is more than just a robot executing actions for monetary compensation. So, while in principle it may be easy to separate person from religious belief to say “just do it…”, in reality, it’s gonna be a compromise we have to shape and not everyone (anyone?) is going to be completely satisfied by an agreed-upon solution.

  4. JohnMcC says:

    I believe that a similar bill is under consideration in Georgia but has been prudently put on hold because the state is hoping to attract a large investment from Volvo.

  5. Franklin says:

    The state legislature in Michigan has also been working on such a bill, but I believe Governor Snyder said he wouldn’t sign it unless some protections for LGBT are included.

  6. CSK says:

    Just in: Asa Hutchinson has refused to sign the Arkansas bill.

  7. al-Ameda says:

    Not that we needed a reminder but, it appears that White people are really angry and afraid of LBGT citizens.

  8. grumpy realist says:

    Oh great. Another 10 years of Rod Dreher freaking out. Can someone slip the guy a tranquilizer?

  9. slimslowslider says:

    @grumpy realist:

    Dreher is a perpetual motion machine of outrage regardless of what comes down the pike.

  10. James P says:

    Pence and Hutchinson are gutless spineless wimps. They are afraid of the Gay-stapo.

    We need to pass this in a state which has a governor with actual guts. Let’s pass this law in Texas or Wisconsin. My guess is that Walker and Abbott will have the guts to stand up to the Gay-stapo. Nikki Haley would sign it. I think Mary Fallin would too. Jindal would definitely sign it – he has a backbone. Illinois already has the law – ha ha!

    Florida is too big to boycott. f enough states pass this law boycotts will be meaningless.

    A majority of people oppose homosexual marriage. We are the majority – we just need to be as noisy as the Gay-stapo. Someone needs to stand up to them. If Walker could get WI to pass this law he could cinch the GOP nomination by signing this civil rights bill which protects Christians.

  11. HarvardLaw92 says:

    Remember, “it” (comment above) is a troll. Do not feed it or acknowledge it in any way beyond downvoting its screeds.

  12. Bob @ Youngstown says:

    Troll alert (above)

  13. Buffalo Rude says:

    @HarvardLaw92: @Bob @ Youngstown:
    Though seriously, “Gay-stapo” is pretty good. It’s no “Big Gay”, but it holds its own.

  14. HarvardLaw92 says:

    @Buffalo Rude:

    The most charitable thing I can think of to say about the man is to call him an infection. He’s the conversational equivalent of syphilis.

  15. JohnMcC says:

    @HarvardLaw92: Well said, sir. Our friend is a social disease.

  16. James P says:

    At least you didn’t call me a liberal 🙂 Liberalism is a mental disorder. That goodness I’ve never been accused of being a liberal.

    I don’t see how anyone could be a liberal without some level of mental illness.

  17. HarvardLaw92 says:

    Remember, “it” (comment above) is a troll. Do not feed it or acknowledge it in any way beyond downvoting its screeds.

  18. James P says:

    @HarvardLaw92: Downvoting is in and of itself an acknowledgement, genius.

    My posts have the most total votes on just about each and every thread. That means they are the most read. There’s no such thing as bad PR. My comments get ten times the number of votes yours do.

  19. HarvardLaw92 says:

    Derision is a shitty kind of attention 😀

  20. Tyrell says:

    I have said before that I am against these types of laws, as they can be used against any religious group, including Christians. I don’t want to be barred from entering a restaurant or biker bar just because I am wearing a cross or a Bible t shirt.
    Look at these bizarre and ridiculous incidents: Judge orders pastor to turn over sermon notes. A judge rules that a homeowner must allow a same sex marriage to be held on their own private property ! A teacher is ordered to remove a Bible from his desk: the next several days, almost the entire student body brings Bibles and put them on their desks !! (that’ll show them !) A restaurant owner is barred from giving discounts on Sunday meals to anyone who shows a church bulletin ! (I guess it is also illegal for him to give senior discounts !) Group protests Bibles in hospital waiting rooms ! NC city is being sued because a war memorial has a cross ! (Arlington Cemetery has thousands of crosses). California passes weird law that forbids use of the terms “husband” and “wife” in legal documents !! (political correctness insanity !).
    These absurd actions show there is enough craziness on both sides !!

  21. James P says:

    @HarvardLaw92: You’re just jealous because I’m better educated than you and you know it.

  22. Barry says:

    @Franklin: “…but I believe Governor Snyder said he wouldn’t sign it unless some protections for LGBT are included….”

    And I’m sure that he’ll keep his word.