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Gov. Asa Hutchinson implemented an executive order for the Arkansas legislature to rewrite the language of HB 1228 to better mirror the language of the federal Religious Freedom Restoration Act of 1993, Wednesday morning. Critics say HB 1228 could open the door to discrimination for religious reasons.
A controversial religious freedom bill that critics say would open the door to discrimination passed in the Arkansas legislature Monday. As of 11 a.m. Wednesday, Gov. Asa Hutchinson implemented an executive order on HB 1228 to recall the bill, and have the legislature remedy the current law and change the language on it to mirror federal law.
“The issue has become divisive, and there is clearly a generational gap. My own son signed the petition to have me veto the bill,” Hutchinson said. “I don’t believe in a workplace that discriminates. This bill simply defines the standard to determine the right balance. It’s about communicating to the world and and neighboring states that we recognize the diversity of the workforce and the need for nondiscrimination. I’m asking the legislature to take a look at the bill and make the Arkansas law mirror the federal RFRA law.”
Proposed in February by state Reps. Bob Ballinger (R-Berryville) and Bart Hester (R-Cave Springs), the Conscience Protection act, a Religious Freedom Restoration Act (RFRA) — also known as HB 1228 — at face value seems to be about protecting religious freedom.
However, a multitude of national opposition formed against the act out of fear that the bill would legalize discrimination on the vague grounds of religious liberty. Using a popular example, if a fundamental Christian catering company denied their services to a gay wedding, they would potentially be protected by the state to do so if HB 1228 were to pass in its current form.
Several international business leaders have voiced their opposition to the bill. Apple’s Tim Cook, Walmart’s Doug McMillon, Yelp’s Jeremy Stoppleman, and the leaders of Axicom — a big employer based in Little Rock — among many others have called out Gov. Hutchinson to veto the bill because of its bad for business policy.
Gov. Asa Hutchinson previously stated that he will sign the bill into law if it reaches his desk. If passed into law, it will take effect immediately because of the adoption of the bill’s emergency clause which allows it to take effect as soon as possible. However, back when the bill was introduced in February, he said “I can see a great deal of litigation coming out of this.”
Hutchinson’s concerns aren’t far fetched, said Danielle Weatherby, UA law professor. The way the law is written about free exercise now, discrimination on the grounds of religious reasons could potentially be a result.
“Where the bill states free exercise, it’s incredibly broad,” she said. “Considering the definition of free exercise, it can include anything. Either the practice or observance of a religion act or refusal to act. That to me is problematic.”
Ballinger said the bill would be following 31 other states with similar RFRA acts already in place, but the way free exercise is defined in HB 1228 could open the door to more problems here.
In the bill’s Judiciary Review Committee meeting, Ballinger said he intentionally left it broad to protect people with “odd beliefs,” even if he didn’t agree with them.
“I think that’s what our founders intended when they did this,” he said. “Religion is a fundamental right. Every one of our amendments clarified what our intent was that there was compelling government interest in applying federal civil rights laws.”
Because this is a Religious Freedom Restoration Act, similar to the law recently passed by Gov. Mike Pence in Indiana, this will bring federal strict scrutiny to private parties — businesses and individuals other than a governing body. So, if people claim their religious rights are violated, a judge will have to apply the highest level of judgment used to weigh the government’s interest against a constitutional right or principle. If someone claimed their religion required sacrifices to a god, the government could claim it’s in its best interest for the sake of public health to not allow that practice. RFRA, which is what HB 1228 would bring to the state level, provides the framework for the judge. Arkansas litigant can challenge a government law without the government Yet, the concern here is the compelling government interest for business transactions.
A real life example comes from New Mexico in 2006. Elane Photography v. Willock. Willock wanted to hire the services of Elane Photography to photograph her gay wedding. The company denied service on the grounds that their deeply-held religious beliefs forbid them. Willock sued them, and eventually won the case. However, with the potential passing of HB 1228, that case could go the other way, Weatherby said.
The story of a Jehovah’s Witness woman in Kansas inspired Ballinger to draft the law, he said. The woman had a liver disease and needed a liver transplant. However, Jehovah’s Witnesses do not believe in blood transfusions. Kansas has a law that if a resident is getting a surgery on Medicaid, they have to do it in the state. The law prohibited her from getting a cheaper surgery in Nebraska, but after going through the process of appeals, she was able to win. However, she died before being able to get the surgery.
Right now, Arkansas doesn’t have any state laws that protect the LGBTQ community.
The Human Rights Campaign, the largest advocate group for LGBTQ rights, placed an ad in the San Jose Mercury newspaper earlier in the week to deter Silicon Valley businesses. The ad featured a closed sign on a glass door that read “Arkansas Closed for Business Due to Discrimination,” and a call to action to Gov. Hutchinson to veto HB 1228.
Justine Turner, a transgender woman and member of the Transgender Equality Network, said she’s fearful the bill will open the door to discrimination.
“It’s an insidious bill. I feel the true underlying purpose is to completely and utterly block those protected classes,” she said. “It opens the door for so much abuse. They know. That’s the point. So unfortunately, appealing to better character just isn’t what’s going to kill it.”
