Meanwhile In Arkansas

Jim Burroway

April 1st, 2015

The Arkansas legislature yesterday sent a License-To-Discriminate bill to Gov. Asa Hutchison (R), who has promised to sign the bill into law, but not before calling a news conference for later this morning. As in Indiana, supporters of the Arkansas RFIA have striven to minimize both its intent and intended effects, claiming that all it is is a state version of the federal RFIA signed into law in 1993. In fact, Arkansas’ (and Indiana’s) go way beyond federal legislation in several respects:

  • The Federal law was narrowly written to protect religious worship, observations and related practices which may be “substantially burdened” by governmental intrusion. The I laws were written specifically to provide expansive protections for all claims which simply “burden” — without qualification — someone’s claimed religious belief, regardless of how peripheral or incidental those claimed beliefs may be to a claimant’s religion — and regardless of whether the claimant’s denomination espouses those beliefs or not. (The Indiana law is worse in this regard; it specifies “burden or is likely to burden.”)  This dramatically lowers the bar and will tie courts’ hands when these lawsuits come to trial.
  • The Federal law protects against governmental intrusion. The state laws are designed to provide a nearly carte-blanch right to discriminate regardless of whether governmental action is involved or not.
  • The Federal law applies to individuals and religious institutions. The state laws apply to everyone and anyone, including corporations, limited partnerships, private companies, non-profits, and individuals employed by them or the government. This expansion goes far beyond the federal RFIA, and it even goes beyond the Supreme Court’s Hobby Lobby decision, which limited the federal expansion to “closely held corporations.”
  • But the most significant difference between the Federal and state laws is that the Federal law was designed with the goal that neither party is significantly harmed by the law’s outcome. But the state RFIAs have been designed with the specific goal to inflict harm on anyone who gets on someone else’s bad side and can claim a religious reason to retaliate.

These license-to-discriminate bills represent a massive attack against all anti-discirmination protections, not just the LGBT community. Members of the Little Rock Nine, who endured death threats and assaults to desegregate Little Rock High School in 1957, have denounced the Arkansas bill:

“‘Injustice anywhere is a threat to justice everywhere,’ Dr. Martin Luther King, Jr. told us, and those words are as true today as they were half a century ago. In our home state of Arkansas, legislators are attempting to enshrine their own hatred into law,” said (Ernie) Green and (Carlotta) Walls. “Once again, opponents of equality are giving credence to those who would refuse to serve their own neighbors under the guise of ‘religious liberty,’ telling us that our freedom of religion, cemented into law by the Constitution and by state law, is under attack. But we stand with our lesbian, gay, bisexual and transgender brothers and sisters, as well as religious minorities and others who could fall victim to discrimination under HB 1228, and we stand against this dangerous and derogatory legislation in its current form. This bill must be amended to protect civil rights or abandoned entirely.”


April 1st, 2015

Thank you for clearly and specifically setting out the differences between the Indiana/Arkansas RFRAs and the federal RFRA, Jim.

Timothy Kincaid

April 2nd, 2015

Yes, excellent work

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