Opponents of Religious Freedom Bill Point Out Law Differences, Possible Unintended Consequences

LITTLE ROCK, AR – Arkansas lawmakers on Tuesday approved the Religious Freedom Restoration Act, despite a firestorm of criticism that the bill would allow discrimination and possibly open up a batch of unintended consequences.

“If our intent is to pass a federal RFRA law, we are not doing that,” State Representative Camille Bennett, D-Lonoke, told members of the Arkansas House of Representatives on Tuesday.

Bennett said she supports a Religious Freedom Restoration Bill (RFRA).

“That’s how this was sold when it started,” she said.

From the House floor, she spoke against the bill sponsored by Rep. Bob Ballinger, R-Hindsville, saying HB1228 is far more broad than lawmakers might have intended.

“When the people realize what the bill really is most people are supportive of it. It has become a symbol for something else and I understand that,” Ballinger said on Monday in response to reporter questions about the impact of the bill.

Bennett, a lawyer like Ballinger, has concerns over language included in the bill. She went through with a highlighter to note the portions that were contained in federal law. She points to non-highlighted sections that she believes go far beyond the federal law Ballinger says is basically the same.

“I don’t think it warrants all the excitement and activity, because we’re moving into the majority, not the minority,” Ballinger said. “It’s the same law the federal government has, same law Barack Obama voted for – same law Chuck Schumer carried that Bill Clinton signed.”

Protesters, including the ACLU of Arkansas have voiced opposition to HB1228, citing similar differences in the law that are concerning to Bennett.

“If he wanted to codify the Federal RFRA, it would be easy enough to do, but this is not that,” said Holly Dickson, legal director of the ACLU of Arkansas.

Several individuals have pointed to ACLU’s support of RFRA laws in the past, so we asked Dickson before delving into the legal wording, why the organization had changed its stance on these laws.

“No flip flop at all the ACLU did support the federal RFRA. House Bill 1228 is not the Federal RFRA,” Dickson said. “It is much more broad and sweeping than the federal law ever thought about being.”

What are the differences?

Defining “person”

The Federal RFRA restricts the government from infringing on a person’s exercise of religion. Ballinger’s bill defines a person as, “an individual, association, partnership, corporation, church, religious institution, estate, trust, foundation or other legal entity.”

According to Ballinger, he simply codified something the Supreme Court already decided.

“In the Hobby Lobby decision, a corporation is a person. We’ve taken case law and combined it with the federal RFRA and applied it,” he said. “That’s really the only difference there is.”

Bennett disagreed with Ballinger’s assessment, saying it goes far beyond the Hobby Lobby decision.

“The court’s opinion was that closely-held corporations, like family businesses, could have religious rights,” she said. “This defines it as basically any entity out there.”

Holly Dickson noted that the definition of a person is an area of federal law that has been under transformation, but she agreed the bill expands beyond what the Arkansas Constitution and what the Hobby Lobby decision established.

HB1228 is broader  because Hobby Lobby held that closely held businesses could have religious beliefs.  This bill allows any legal entity, corporation (publicly traded or not), including estates, to hold a religious belief,” Dickson said. “This bill also goes much further than any explicit expansion or inferences that could be drawn from Hobby Lobby.  HB1228 jumps ahead on that point with an unprecedented standard as to what constitutes a burden on religious belief.” 

What is exercise of religion?

Bennett also points to Ballinger’s bill, which defines exercise of religion as the, “practice or observance of religion including without limitation the ability to act or refuse to act in a manner substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief.”

Some legal analysts believe this definition has more expansive inclusions of religious beliefs than federal law, meaning a person’s decision to act or not act in compliance with the law doesn’t have to be as closely tied to sincerely held religious belief.

Bennett believes the definition would create a difficult standard to determine what is truly a religious belief, if it is not required to be part of a larger recognized belief set.

“We have gone and made it so broad that, as it is, there is no way I can tell you what the impact will be if we pass it,” Bennett had said prior to passage of the bill.

She had raised concerns regarding the “religion of one” mentality that would allow individuals to possibly exempt themselves from laws as well.

UALR law professor John DiPippa agreed with that concern saying in a written response to questions about the differences between the federal and state RFRAs, “RFRA is a bad law: it undermines the rule of law by making each individual a law unto themselves. The US protects religious liberty: no one is forced to join a church, no one is punished for attending or not attending church. Religious organizations enjoy broad freedoms to meet, speak, advocate and practice their religions. In a plural, democratic society, however, individuals don’t have the right to exempt themselves from the laws that apply to all of us. As Justice Scalia said, this invites ‘anarchy'”.

Government inclusion in suit

Another example that gives opponents pause is that HB1228 does not require the state to be a party to a proceeding, opening up private litigation on religious grounds. The bill excludes private employer-employee issues, but doesn’t exclude public employer-employee relationships.

The bill says, “regardless of whether the state or one of its political subdivisions is party to the proceeding,” which leads some to believe this law allows private entities to sue one another on religious grounds.

Federal law only allows legal proceedings against the government.

While HB1228 requires state action, it is defined in the law as:
the implementation or application of any law, including without limitation state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by law in the state.

And that’s where both Bennett and Dickson have concerns, saying a private person or business implementing or applying state law would be subject to the law the same as public and government officials and employees.

“Instead of just of protecting religious freedoms this can be used as a weapon against a number of people with very unintended consequences,” Bennett said. “It says it has to have state action but then it exempts employment claims and says private corporations can be involved. It’s really impossible to tell what effect this may have.”

And Bennett said it raises concerns for her about employees of state agencies, as well.

“With this, if I’m employed at DHS and I believe that adultery is a sin, and I discover the woman working in the cubicle next to me is divorced and that goes against my religion, then what?” Bennett said. “Can I go and demand that she be fired because I cannot work with someone who has done something that infringes on my religious beliefs? Because you can’t fire me, because of my religious beliefs.”

LGBT community

The LGBT community has been among the most outspoken opponents of the bill, saying it is a blank check for discrimination. Currently, under Arkansas law, discriminating based on sexual orientation or identity is legal. They are not included as part of the Civil Rights Act in the state or federal law.

Ballinger said he never intended for the bill to be used for discrimination, but also declined to include an anti-discrimination clause in the language.

“What i would say is I would hope our society culture would change so we don’t have to worry about people being mean,” Ballinger said when asked if he believed the law should have the ability to curb whether a business wanted to discriminate against a gay individual . “I’m real hesitant about the state stepping in and saying what’s best to do with your business.”

Ballinger added that his suggestion in that situation would be for individuals to lobby against that business, so that it either closed or conformed to society’s expectations.

Dickson said she has no doubts that the intent of the legislation is to create barriers to members of the LGBT community obtaining equal rights now or in the future.

“The same people who support this RFRA are those who have consistently fought against equality in our state. They were responsible for proposing and sponsoring same-sex marriage bans in our state, they opposed families being headed by gay men and lesbians,” Dickson said. “There’s no question in my mind what this bill is about. But the most important point is the effect of this bill will be to prohibit protections for LGBT Arkansans now and in the future.”

Dickson also noted that the timing of the passage of the most recent RFRA laws came on the heels of societal views changing in regard to same-sex marriage and the LGBT community.

“I think the timing is important,” she said. “To determining the intent of this bill.”

When asked if Ballinger knew of any specific cases that occurred in Arkansas, where the RFRA would have made a difference in light of the lower scrutiny standard that has existed here since 1993, he said he didn’t have any specific Arkansas examples.

“But there are cases that are real cases that could and will happen here,” he said. “But at this point, there isn’t case law that we can point to.”

Bennett said that she believes the bill has created backlash from the LGBT community, but she added the implications go far beyond those individuals. Bennett fears that the bill has created a type of religious litmus test, in which every law legislators consider, will have to consider all possible religious impacts that could then result in a suit.

“Perhaps, lawmakers should conduct a religious impact statement in addition to a fiscal impact statement,” Dickson said, when posed with Bennett’s concerns.

What comes next?

Despite Bennett’s pleadings for the bill to be re-referred to committee for amendments to clarify the intent of the legislation, representatives moved forward with the vote and passed Ballinger’s bill.

The governor has said before that he intended to sign the bill as amended. When we asked his spokesperson if he stood by that commitment, we were told Governor Asa Hutchinson would make a comment tomorrow.

Bennett isn’t sure what the immediate outcome will be if the bill is signed into law.

“The courts may invalidate it or cut it down to something more in line with Federal RFRA to minimize the impacts,” she said. “But if left standing and not invalidated, we’ve opened Pandora’s box.”

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