The Arkansas “religious freedom restoration” bill (HB 1228, “To Enact the Religious Freedom Restoration Act; and to Declare an Emergency”) passed the House in a 72 to 20 vote last month, with the Senate now poised to take it up on March 30. On Thursday, Arkansas Gov. Asa Hutchinson said he plans to sign it into law if it reaches his desk. Thursday Indiana Gov. Mike Pence (R) signed a similar measure into law.
I wondered what created the need for the “emergency” clause in the legislation: I read the Arkansas bill and it’s an “emergency” because “every day that a person’s right to religious freedom is threatened is a day that the First Amendment to the United States Constitution is compromised.”
One should note that the bill was introduced on February 2, and the “emergency clause” was not added to the bill until March 27. Apparently the folks behind this bill in Arkansas don’t really understand how the First Amendment to the US Constitution protects freedom of religion. I do wonder why something that was not a civil rights emergency back in February suddenly became an emergency last Friday.
Last month, Hutchinson allowed another bill — S.B. 202 — to become law without his signature. That law bans local governments from adding anti-discrimination protections based on sexual orientation or gender identity.
The fact that Arkansas’s Gov. Hutchinson has deliberately and preemptively prevented local governments from adding anti-discrimination protections for LGBT people makes it very clear that discrimination against LGBT people is precisely what he wants. Gov. Hutchinson’s intent is to use SB 202 and the “religious freedom” bill that he promised to sign into law as a one-two punch against LGBT people.
Just as in Arkansas, there are no state-level anti-discrimination protections for LGBT people in the state of Indiana, either. And as Lambda Legal’s Jennifer Pizer pointed out in an article about the matter on the Lambda Legal website, “Gov. Pence, in his signing statement, said, ‘This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved.’
“He’s wrong, or disingenuous, on both points. If this new law does not seek to facilitate discrimination, why did legislators pressing for its passage say it’s ‘needed’ to allow businesses to turn away same-sex couples? And why did a majority of Indiana legislators then reject amendments offered to specify that these enhanced religious rights cannot be used to excuse discrimination?
“Further, about disputes between private parties, the law says explicitly, ‘A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.’ This language was included to allow private parties to object to following a law that otherwise would apply to them, and to assert these expanded religious rights in a dispute with another private party.”
Although there are 20 states with “religious freedom restoration” laws, only a handful of those states also have anti-discrimination protections in employment or other areas for LGBT people at state level. The “religious freedom” laws do much more damage to people if there are no local or state-level anti-discrimination protections in place or enacted at the same time for LGBT people.
In an interview Saturday with the “Indianapolis Star,” Gov. Pence said that he’s had discussions with legislative leaders this weekend and that he expects that a clarification bill will be introduced this coming week to the religious objections law he signed Thursday.
Gov. Pence told the newspaper that making gay and lesbian Indiana residents a protected legal class is “not on my agenda.” Since Indiana has no state-level protections in employment, housing, public accommodations (restaurants, hotels), education, health care and other areas, it is clear that Gov. Pence intends to promote and legalize discrimination against gay people in those areas.
These “religious freedom” laws are not, as has been promoted in the media, only about enabling discrimination by bakeries and florists who object to serving LGBT people. Frankly, it should not be difficult for a gay couple to find a florist or bakery who would be happy to do business with them. The ramifications are far greater in business and public administration areas including employment, housing, health care, business licensure, and education.
The goal of these “religious freedom restoration” laws, in the states that have them now and where they are currently pending, is not to allow religious freedom, which is already granted by the First Amendment to the US Constitution. There is no “lost” religious freedom to “restore.”
The goal of these laws, particularly in states where LGBT people are unprotected in any other ways, is to promote and ensure the legality of discrimination against LGBT people in the same ways that people were harmed without legal recourse in employment, housing, public accommodations (restaurants, hotels), education, health care and other areas before the Civil Rights Act of 1964 provided protection for 5 classes which remain protected to this day (religion, sex, national origin, race and color).
However, LGBT people — including LGBT Catholics, LGBT Jews, LGBT Episcopalians, LGBT United Methodists, LGBT Presbyterians, LGBT Methodists, LGBT Muslims, LGBT Reformed Church in America members, etc. –- are not protected by the Civil Rights Act, and neither sexual orientation nor gender identity are protected classes like the others at the Federal level.
Here is the Associated Press article about the recent action in Arkansas.
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