Update, 4:43 ET: According to The New York Times, Arkansas governor Asa Hutchinson has responded to criticism of the state’s religious rights bill (full story here):
Facing a backlash from businesses and gay rights advocates, Gov. Asa Hutchinson of Arkansas on Wednesday called on state lawmakers to either recall or amend legislation billed as a religious freedom measure so that it mirrored a federal law approved in 1993.
Indiana governor Mike Pence is also revisiting his state’s bill, as reported by the Indianapolis Star:
Indiana Republican leaders are vetting a deal with key business leaders that grants protection for gay and lesbian residents from the state’s controversial “religious freedom” law.
A copy of the language obtained by The Indianapolis Star was being presented to Gov. Mike Pence Wednesday morning and House Speaker Brian Bosma was meeting in his Statehouse office this afternoon with sport and business leaders, including Indianapolis Motor Speedway CEO Mark Miles, Indy Chamber Vice President Mark Fisher and a representative from tech company Salesforce.
On the heels of Indiana, Arkansas has passed its own religious freedom bill, reports The New York Times and other media outlets. Both states’ legislation has resulted in backlash from secular and religious entities, from Wal-Mart to the Disciples of Christ.
While there were several attempts up until the last minute to add a clause to the bill that would explicitly bar discrimination of gays and lesbians, a measure that Gov. Mike Pence of Indiana pledged to add in a news conference on Tuesday, the sponsors of the bill in the General Assembly rejected such moves.
The NYT takes a look at the history, similarities and differences between the Indiana and Arkansas bills, which have their roots in the 1993 federal Religious Freedom Restoration Act:
The bill in Arkansas is similar to the Indiana law, with both diverging in certain respects from the federal Religious Freedom Restoration Act. That act was passed in 1993 and signed into law by President Bill Clinton, Arkansas’s most famous political son.
But the political context has changed widely since then. The law was spurred by an effort to protect Native Americans in danger of losing their jobs because of religious ceremonies that involved an illegal drug, peyote. Now the backdrop is often perceived to be the cultural division over same-sex marriage.
Both states’ laws allow for larger corporations, if they are substantially owned by members with strong religious convictions, to claim that a ruling or mandate violates their religious faith, something reserved for individuals or family businesses in other versions of the law. Both allow religious parties to go to court to head off a “likely” state action that they fear will impinge on their beliefs, even if it has not yet happened.
The Arkansas act contains another difference in wording, several legal experts said, that could make it harder for the government to override a claim of religious exemption. The state, according to the Arkansas bill, must show that a law or requirement that someone is challenging is “essential” to the furtherance of a compelling governmental interest, a word that is absent from the federal law and those in other states, including Indiana.
Wal-Mart has already voiced opposition to the Arkansas law, reports KTHV in Little Rock, prior to the passage of the bill:
Walmart officials posted a statement to Twitter that HB 1228 does does not reflect the values the company says they uphold, and that they’re asking Gov. Hutchinson to veto the legislation.
In a statement on Tuesday night, Wal-Mart CEO Doug McMillon said:
“Every day, in our stores, we see firsthand the benefits diversity and inclusion have on our associates, customers and communities we serve. It all starts with our core basic belief of respect for the individual.
Today’s passage of HB1228 threatens to undermine the spirit of inclusion present throughout the state of Arkansas and does not reflect the values we proudly uphold. For these reasons, we are asking Governor Hutchinson to veto this legislation.”
The fallout over the Indiana bill continues. NASCAR has issued a statement:
“NASCAR is disappointed by the recent legislation passed in Indiana. We will not embrace nor participate in exclusion or intolerance. We are committed to diversity and inclusion within our sport and therefore will continue to welcome all competitors and fans at our events in the state of Indiana and anywhere else we race.” — NASCAR Senior Vice President and Chief Communications Officer Brett Jewkes
The Christian Church (Disciples of Christ) had planned to hold its 2017 convention in Indianapolis (it would have been the fourth time since 1989, a convention that draws as many as 8,000 people with an economic impact of $5.9 million. Reported in The Washington Post:
Last week, leaders of the Christian Church (Disciples of Christ), which is based in Indianapolis, wrote Gov. Mike Pence (R) urging him to veto the proposal. The Disciples of Christ once supported a 22-year-old federal Religious Freedom and Restoration Act, though the specifics of Indiana’s law have become divisive.
The church has decided to relocate its convention
because of concerns that some members might experience legally sanctioned bias and rejection once so common on the basis of race.” The move reflects a larger push in the state and across the nation to use business to pressure state leaders on the issue.
The Religion News Service has published Jay Michaelson’s “Where did Indiana law come from? A brief history of religious freedom,” which begins with the question of purpose:
Before this week, few people had heard of the Religious Freedom Restoration Act or could even pronounce its acronym, RFRA (Riff-ra), even though there’s a federal version of the law and 20 states have passed their own versions. Is it a “license to discriminate,” as liberals claim, or a “protection of religious freedom,” as conservatives claim?
In fact, it’s both.
While 19 other states have RFRAs, Indiana and Arkansas are the first since last year’s Hobby Lobby case. Michaelson writes about a shift that took place in religious freedom laws in the 2000s:
…conservative activists began using RFRA in a new way: as a sword, rather than a shield. Now, they argued, my religious belief should trump your civil rights. Gays and lesbians may see the florist’s refusal as discrimination, but she sees it as freedom of religion.
These two streams — religious exemptions and RFRA — converged in the Hobby Lobby case, decided last year.
In that case, the Supreme Court decided, for the first time, that RFRA could be sword as well as shield. A corporation could deny someone their legal rights, and then claim religious freedom as a defense.
In the end, it’s about power and politics, says Michaelson:
Really, though, the Indiana case is about politics, not religious philosophy. Pence is an ambitious politician, and he gave his conservative backers what they wanted. Now it all may backfire. Seventy-five percent of Americans oppose discrimination against LGBT people, even though only 55 percent support same-sex marriage. Moreover, while America remains a uniquely religious nation, it also respects the rule of law. And letting people discriminate because of religion is not what the rule of law is about.
The debate continues.
Posted by Cara Ellen Modisett