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Arkansas Gov. Wants Narrower Religious Freedom Bill


Mark Stricherz - published on 03/31/15 - updated on 06/08/17

Where does religious freedom end and discrimination begin?

The governor of Arkansas pledged to veto a religious freedom bill unless the legislation mirrors a 1993 federal law. Asa Hutchinson, a Republican, suggested on Wednesday that state lawmakers need to make clear that the proposal would not give the religious a right to discriminate against gay customers. Yet the meaning of his words is unclear.

According to reporter Ana Campoy of The Wall Street Journal, Hutchinson acknowledged that balancing the interests of culturally conservative religious Americans and gays is difficult politically:

“The issue has become divisive because our nation remains split on how to balance the diversity of our culture with the traditional and firmly held religious convictions,” Mr. Hutchinson said.

Mr. Hutchinson called on lawmakers to amend the current bill to mirror federal religious liberty laws. The bill’s supporters in the state House rebuffed a move by other lawmakers to amend the bill before passing it Tuesday, saying that the discrimination issue should be addressed elsewhere.

In Indiana, widespread criticism over the religious-freedom law, including calls for a boycott of the state, spurred GOP Gov. Mike Pence on Tuesday to call for an amendment clarifying that the law wouldn’t permit businesses to deny service to gays and lesbians.

The Arkansas bill, which protects individuals and companies from state and local laws that infringe on their religious rights, was approved by a sizable majority of legislators.

But a number of large companies—including Arkansas’ largest private employer, 
Wal-Mart Stores Inc.—and 
Apple Inc., oppose it, saying it would result in discrimination. Wal-Mart Chief Executive Doug McMillon asked Gov. Hutchinson to veto the bill in a statement released Tuesday on Twitter.

State lawmakers have not commented on Hutchinson’s request, according to local news outlets.

Religious-freedom laws give citizens a legal tool if they are sued for discrimination; judges or juries would decide if their defense is valid.

Yet the scope of the Indiana law and Arkansas bill is disputed. Would they permit a religious baker, florist, or photographer to refuse to service a homosexual wedding? Or would they bless business owners who refuse to serve individuals they consider gay at a checkout line?

According to Glenn Kessler of The Washington Post, answers to those questions are difficult to come by. Federal courts have interpreted the federal religious freedom law and 19 previous state laws differently:

With one exception (Texas), the language regarding the government not needing to be a party does not appear in any other RFRA. But as Shruti Chaganti noted in an interesting 2013 article in the Virginia Law Review, federal appeals courts have been split on whether the RFRA could be used in a private suit.

The U.S. Courts of Appeals for the 2nd, 8th, 9th and D.C. Circuits have supported that right, but others have not. So Indiana, which is in the 7th Circuit, is making the right explicit, resolving that disputed issue expressly in favor of religious claimants. (The Illinois law only makes reference to being able to recover attorney’s fees and costs if a claim is upheld against a government, suggesting the possibility that law applied to suits between private parties.)

Even so, there also are potentially important differences between Indiana and Texas. This is the Texas language:

“A person whose free exercise of religion has been substantially burdened in violation of Section 110.003 may assert that violation as a defense in a judicial or administrative proceeding without regard to whether the proceeding is brought in the name of the state or by any other person.”

The Indiana law has a potentially lower threshold – “likely to be substantially burdened” — while the Texas law also made clear that the RFRA does not trump existing civil rights law: “Except as provided in Subsection (b), this chapter does not establish or eliminate a defense to a civil action or criminal prosecution under a federal or state civil rights law.”

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