On Tuesday, the Arkansas state House of Representatives approved a final version of a "religious freedom" bill similar to the one that has caused an uproar in Indiana. Gov. Asa Hutchinson (R) has said he'll sign it.
"Similar," in the context of these politically fraught bills, is probably too vague a descriptor. Wondering how it differed concretely from the Indiana bill, we reached out to professor Katherine Franke of Columbia Law School, who also serves as faculty director of the school's Public Rights / Private Conscience Project. As the debate over the bill in Indiana moved forward, Franke was one of several dozen signatories to a letter to the state's legislature, asking for changes that might prevent the effects that critics most fear.
Those possible negative effects have centered around how the legislation in Indiana might allow businesses to deny services to customers based on the religious beliefs of the business owners -- and, more specifically, that it would allow Christian business owners to deny services to gay customers. (Indiana Gov. Mike Pence (R) has asked for 'clarification' from the legislature to prevent that from happening.)
Franke indicated that the Arkansas bill has a way in which it better addresses critics' concerns than the Indiana one, a way in which the two are the same, and a way in which Arkansas' bill is much worse.
"The Arkansas bill, like the Indiana bill, has a very broad definition of a 'person' who can assert religious liberty rights under the statute," Franke said, "and that definition is much broader than the federal definition, even as the Supreme Court recently interpreted it in Hobby Lobby," the 2014 case that considered whether or not a business could deny coverage for contraception based on the religious beliefs of its owners. "It's not just natural humans, people like you and me, but corporations of any kind. The federal court interpreted it only to apply to closely held corporations where the ownership is a small family and they all share the same religious commitments or beliefs."
In Arkansas and Indiana, in other words, any business of any size can say that its religious liberty rights are being infringed, even if the corporation is, say, Walmart, the ownership of which is far from small. (Walmart actually came out in opposition to the bill.) This is why the scenario offered at the outset, of a business denying service to a gay couple, is so resonant. In Indiana and Arkansas, that business can claim infringement on its religious rights.
"The Indiana bill says that the person" -- again, meaning an actual person or a corporate person -- "has to allege a substantial burden on a religious belief," Franke said, "but it also protects where there is a likely burden on a sincerely held religious belief. So if there's a possibility down the road of a burden on your faith or your religious belief, you can exert an exemption."
Think of it like the movie "Minority Report." In that film, a law enforcement body intervened in crime that were foreseen, stopping the perpetrator before he or she could act. The Indiana bill works somewhat similarly, allowing lawsuits intended to prevent religious rights from being infringed, before the infringement happens. "That is an extremely radical idea," Franke said, "that you could bring a lawsuit on a conjecture of a future injury." Arkansas' bill doesn't include this language.
"What the state has to prove under the Arkansas bill in order to overcome an assertion of a religious exemption" -- that is, in order to allow a law to trump concerns of religious liberties -- "is that the interest it's furthering with the law is 'essential," explained Franke. At the federal level, the government can allow a law to trump the religious liberty standard if the state's interest is compelling -- a looser standard that allows for things like occupational safety to trump religious exemptions.
"It sounds like not a very big difference with that one word, but what that one word does is make it much more difficult for the state to say that this is an important public interest that they're advancing," Franke explained.
The history of religious exemptions, Franke said, has traditionally been that they protect the rights of religious minorities. She offered several examples, including the desire of the Amish to be exempt from laws mandating that children go to public schools. In the 1990 case of Employment Division v. Smith, the Supreme Court, in a majority opinion from Justice Scalia, said that exemptions couldn't be used to avoid the requirements of generally applicable laws. It was the Smith case that prompted Congress to pass its Religious Freedom Restoration Act in the early 1990s, reinstating protections for minority religious practice -- in cases where no third party is being injured. That, she noted, is a key differentiator between the RFRA bills in Arkansas and Indiana and at the federal level: A third party might suffer injury from the exercise of a person's religious liberty.
"Religious liberty is not an absolute right. No right secured by the Constitution is an absolute right," she noted. "We always balance these rights against other important government interests and public interests."
"The way these RFRA laws are written, it sounds like these are absolute rights that trump any other state interest," Franke said. "And that's what's problematic about them."
