The Arkansas Religious Freedom Bill is Dead, But a Worse One In North Carolina is on the Way

Another RFRA was introduced in the North Carolina legislature that, again, is almost exactly like the Indiana RFRA and the referred-back Arkansas bill. But this one is a lot worse.
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Another RFRA was introduced in the North Carolina legislature that, again, is almost exactly like the Indiana RFRA and the referred-back Arkansas bill. But this one is a lot worse.
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There was good news from Arkansas late Wednesday as the House and Senate passed two different religious freedom bills that would replace the now notorious HB1228, which Gov. Asa Hutchinson (R-AR) wisely sent back to the legislature earlier in the day.

This pair of older bills were stripped of their original language and replaced with text similar to the federal Religious Freedom Restoration Act of 1993 (RFRA). The federal law is generally agreed-upon as disallowing any form of discrimination and only allows action against the government. The old Arkansas bill and the infamous Indiana RFRA not only consider corporations of all sizes as having First Amendment rights, but those bills also allow those "persons" to use the RFRA as a defense against other people, not just the government. The new Arkansas language ostensibly doesn't contain any such provisions. Ostensibly.

What'll happen from here is that HB1228 will be replaced with one of the two new bills. A veto of HB1228 won't be required since Arkansas code allows the governor to simply "refer" a bill back to the legislature with corrections. Consequently, there probably not much of a concern that HB1228 will automatically become law after five days, not unlike a controversial discrimination-related law that passed earlier in the year that Hutchinson refused to sign but which became law after five days anyway.

Still, it's difficult to say whether the new legislation won't be amended with appropriate bits and pieces from the old bill. So, probably "cautiously optimistic" is correct posture for now.

Isn't parliamentary wonkery fun?

Meanwhile, another RFRA was introduced in the North Carolina legislature that, again, is almost exactly like the Indiana RFRA and the referred-back Arkansas bill.

But this one is a lot worse. In the MEMBERS ONLY section of The Daily Banter on Wednesday, we discussed one of the ways in which the Indiana and Arkansas laws differed from the federal RFRA. One of the differences is that according to the federal RFRA, signed by President Clinton in 1993, the government can't pass laws that "substantially burden" a person's religious freedom unless there's a really good reason for. Say, for example, if a business is violating worker safety regulations or is refusing to pay its taxes, while citing religious freedom to justify both, the government can step in.

According to current language in the North Carolina bill, it's extremely difficult for the government to do that. It turns out, "substantially burden" has been shorted in the North Carolina RFRA to simply "burden." The text of HB348 reads: "State action shall not burden a person's right to exercise of religion." Only two states out of the 19 with RFRAs on the books left out "substantial." Even the dreaded Indiana RFRA contains the phrase "substantially burden."

This is a massive loophole through which all kinds of terrible things can careen. It's much easier to claim a religious objection to the government or a same-sex couple buying a wedding cake if there's merely a burden, but it's much more difficult to show a substantial burden. The threshold, therefore, is higher. But not in North Carolina where a simple burden is all it takes to freely discriminate against whomever.

In addition to that, where the Indiana RFRA requires the government to show "compelling interest" to supersede religious freedom, the North Carolina law requires "governmental interest of the highest magnitude." The latter sounds scary, like the government can only place limits on religious freedom if what? A terrorist is about to blow up a hospital?

And yet the Republican supporters of these laws continue to conflate them with the federal RFRA, as if no one can actually, you know, read. When there are flimflam artists like Arkansas State Senator Bart Hester behind the wheel of these bills, it becomes abundantly clear what's going on. Hester, a sponsor of the original Arkansas RFRA, was interviewed by Jake Tapper on Wednesday and, like Gov. Mike Pence, simply couldn't offer a straight answer to the questions being asked.

Tapper asked Hester point blank whether his law would have allowed businesses to discriminate against same-sex couples, and Hester continuously said it "does not allow for discrimination in any way." But then Hester said a business owner could refuse to participate in the "message of a homosexual wedding or ceremony." Tapper, naturally, was baffled as were the rest of us. How would a florist provide flowers for a same-sex wedding and not be participating? Hester later said, "[The government] can not force an individual to participate in a ceremony that they don't believe in." But that's not only discriminatory, it directly contradicts what he said a minute earlier.

Frankly, it's contradictions like these that frustrate people with religion in the first place. And the ambiguity of various faiths is what makes it nearly impossible to codify religion into secular law. The consequences are more often than not terrible -- not necessarily impacting the, in this case, Christian supermajority but specifically minority groups that have routinely suffered under misguided religious justifications for oppression -- African-Americans, women, children and the gay community.