“There’s not really any place to make any changes now,” Republican Rep. Bob Ballinger of Hindsville, who proposed the bill, told the AP. “If there are questions in two years we can fix it.”
Meanwhile, a similar bill has been introduced in both the House and Senate of North Carolina’s state legislature.
Indiana, Arkansas and North Carolina are hardly the first three states to consider religious freedom laws — 19 other states had similar statutes, based on the national Religious Freedom Restoration Act (RFRA) passed in 1993, before anyone started rallying against the Indiana law.
But many have pointed out that Indiana’s statute is unique in that it explicitly recognizes corporations as having “free exercise” rights equal to those of individuals and allows for all “people” (a term that includes corporations) to use the act as claim or defense in a lawsuit regardless of whether or not the government is involved.
In the Atlantic, legal writer Garrett Epps, who teaches constitutional law at the University of Baltimore, argued that these clauses are a response to a 2013 state Supreme Court ruling in New Mexico, which found that a professional photography studio could not claim the protection of the state’s RFRA when it was sued for refusing to photograph a same-sex couple’s wedding because the “government is not a party.” The ruling implied that a RFRA only protects against government-imposed burdens on religious freedom, and not private lawsuits — a finding that the language of the Indiana law preempts.
Unlike its predecessors, Epps argued, Indiana’s statute “has been carefully written to make clear that 1) businesses can use it against 2) civil-rights suits brought by individuals. … The statute shows every sign of having been carefully designed to put new obstacles in the path of equality.”
The new bills in Arkansas and North Carolina contain both clauses that Epps found objectionable in the Indiana law. In North Carolina’s case, some opponents say, the language is “worse.” The North Carolina RFRA prohibits all state “burdens” on the exercise of religious freedom, unlike the federal law and all but two other state laws, which require that claimants show a “substantial burden.”
“The weak language in bills like North Carolina’s sends a dangerous message that such laws can be deployed as a ‘trump card,’ allowing religion to be used as a reason to disobey the law,” wrote Chris Kromm, executive director of the progressive Institute for Southern Studies.
Kromm added that another section of the bill, which allows for government burdens only when it furthers a government interest “of the highest magnitude” gives people and businesses more leeway to discriminate than most other RFRAs, which allow the government to intervene for any “compelling” government interest.
“The legislation introduced last week could pose an even greater threat than Indiana’s to civil rights,” he said.
But even if the North Carolina RFRA is passed, it seems likely it would be vetoed by Republican Gov. Pat McCrory. Speaking to Charlotte public radio station WFAE Monday, McCrory said he would not sign the bill the way it’s currently written, putting him at odds with GOP colleagues in the legislature.
“Some of the items that are in the so called religious freedom bill … make no sense,” he said. “… What is the problem they’re trying to solve? I haven’t seen it at this point in time.”
In Arkansas, on the other hand, Republican Gov. Asa Hutchinson said he’d sign the RFRA bill into law if passed.
Like the Indiana law, both bills have drawn criticism from gay rights activists and companies that fear the laws will open their states to ridicule, protests and perhaps boycotts. Executives at Little Rock-based technology company Acxiom sent a letter to Hutchinson Monday urging him to veto the bill if passed.
“This bill inflicts pain on some of our citizens and disgrace upon us all,” the letter read. “[It] is not wise either from a business perspective.”
American Airlines, which has its second-largest hub in Charlotte, N.C., will likewise fight that state’s bill, spokeswoman Michelle Mohr said in a statement to the Charlotte Observer.
“Laws like this will harm the economies of the states in which they are enacted, and would ultimately be a step in the wrong direction for a society that seeks tolerance, peace and prosperity for all,” she said.