MEMBERS ONLY: The New Arkansas Religious Freedom Law is Actually Worse than the Indiana Law (UPDATED)

UPDATE: Governor Hutchinson is asking for the Arkansas bill to be revised:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state “to be known as a state that does not discriminate but understands tolerance.”

Hutchinson said his son, who signed a petition calling for a veto, asked him to not sign the bill. This still doesn’t address the ban on local anti-discrimination laws.

Pro-discrimination anti-gay Republicans, including Gov. Mike Pence (R-IN), continue to assert that the Indiana Religious Freedom Restoration Act (RFRA) is basically the same as all of the other RFRAs including the one then-State Senator Barack Obama voted for as well as the federal RFRA signed by former President Bill Clinton. It’s really not. Not at all. And there’s another RFRA that’s about to become law in Arkansas. We’ll circle back to that.

The Indiana RFRA is insidious in a number of ways that sets it apart from the other RFRAs:

1) The Indiana law grants for-profit corporations personhood in terms of enjoying constitutionally protected religious liberty, not unlike the Supreme Court’s ruling in Burwell v Hobby Lobby Stores. However, this RFRA goes further than Hobby Lobby, since the Supremes singled out religious exemptions for “closely held” corporations, while the RFRA expands those rights to corporations of any size. Therefore, a business of any size can using the RFRA to defend itself against lawsuits and so forth. The other existing RFRAs don’t include this language.

2) The Indiana law also grants religious freedom to persons (this includes corporate persons) against lawsuits brought other persons. The First Amendment as well as the federal RFRA protects religious liberty against government actions, but the Indiana bill extends religious liberty to actions taken by other people. The unspoken other people in this case are clearly gay people. Put another way: the federal RFRA protects religious freedom unless a third party — say, a gay person — suffers a personal injury against his or her own human rights.

3) The Indiana law can be used by persons in the context of alleged trespasses against religious liberty — in the future! Yes, that’s right, offenses that haven’t happened yet. The Washington Post‘s Phillip Bump compared it to the Tom Cruise movie Minority Report, in which law enforcement is tasked with apprehending criminals before they commit a crime. The Indiana RFRA protects religious persons if they are “likely to be substantially burdened” sometime later. Professor Katherine Franke of Columbia Law School said about this line in the statute, “That is an extremely radical idea, that you could bring a lawsuit on a conjecture of a future injury.”

Mike Pence is either lying about these three major distinctions or he seriously doesn’t know. Both options are equally scary.

In addition to setting it apart from other laws, these differences make it abundantly clear that the Indiana RFRA is an almost direct and vocal response to various cases in Washington, New Mexico, Colorado and Illinois where personal injury suits were brought against businesses that discriminated against same-sex couples and exploited religious freedom in their defenses. Mike Pence refuses to ‘fess up to this.

And now, it appears Arkansas is about to legalize discrimination with an RFRA that’s actually worse than the Indiana law, if that’s possible. All that needs to happen to HB 1228 is a cursory review in the state House and Gov. Asa Hutchinson’s (R-AR) signature and there it is — a nearly carbon copy of the Indiana bill, but with an impact that’ll be far more dangerous than Indiana’s RFRA.

1) The Arkansas legislation also recognizes the religious liberty of corporations. By the way, say what you will about Walmart, but the Arkansas-based megacorporation has already come out strongly against the Arkansas RFRA, stating:

It’s almost certain that Walmart asserts its corporate personhood in other ways, but if anyone has political heft in Little Rock, it’s Walmart.

Apple also condemned the law:

“Our employees in Little Rock have a right to equal treatment under the law, as do their coworkers in Cupertino and around the world. We join the many voices across Arkansas in opposing H.B. 1228 and we urge the State’s legislators to vote against the bill.”

And tech giant Acxiom joined in:

“Simply stated, this bill inflicts pain on some of our citizen and disgrace upon us all. This bill will have the practical effect of excluding parents, sons, daughters, brothers and sisters, friends, and neighbors from pursuing normal, everyday life, that straight citizens take for granted.”

Even the conservative Little Rock Chamber of Commerce stood against the bill:

“While we believe that HB 1228 seeks to protect the religious freedoms of all Arkansans, it can be interpreted to provide religious protection for Arkansans who choose to discriminate against other Arkansans. This is bad for business and bad for Arkansas. Unless and until this issue is clarified by amendment in HB 1228, the Little Rock Regional Chamber of Commerce is against the bill.”

It’s smart business, of course — it doesn’t take a law degree to see observe the backlash against Indiana as well as the similarities between the Arkansas RFRA and the Indiana law.

2) In addition to the nearly identical corporate-protections, the Arkansas law, like the Indiana law, also protects religious freedom against a third party even when that third party’s civil rights have been trampled.

3) Arkansas’ RFRA is actually worse than the Indiana RFRA in that it has tighter rules for allowing the government to supersede the law in compelling circumstances such as worker safety standards and so forth.

4) However, Arkansas doesn’t have the Minority Report language, which makes it better.

This pair of differences — #3 is worse, #4 is better — nullify each other, making the laws about the same in terms of overall content.

What makes the impact of the Arkansas law far worse than the Indiana law is the existence of the recent legislation that nullifies LGBT anti-discrimination laws at the local level. So, there’s really no other recourse or way around it. Conversely, the Republican mayor of Indianapolis, Greg Ballard, was able to issue an executive order reinforcing the city’s decade-old anti-discrimination statute, while strongly condemning the obvious anti-LGBT intent of the RFRA. Again, a Republican mayor did that. Not bad.

It’s one thing to fabricate some sort of damage to religious liberty based on speciously cited biblical language and personal spiritual interpretations, it’s another thing to entirely lie about what these laws are doing. Either Pence is bullshitting us or he’s really the dumbest governor ever. Either way, it’s either his ignorance or his mendacity that’s responsible for the existence of this law. It remains to be seen whether Governor Hutchinson will derp his way through his own RFRA fracas, which set to begin right about now.

Bob Cesca is the host of the Bob Cesca Show podcast, a twice weekly political talk show. He’s also a contributor to Follow him on Twitter and on Facebook.