Arkansas Governor Asa Hutchinson surprised a lot of people on Wednesday, requesting changes to the state’s Religious Freedom Restoration Act (RFRA), or offering an executive order to clarify it.
Breakthrough? Not really. Read the fine print.
“The bill that is on my desk at the present time does not precisely mirror the federal law,” Hutchinson said Wednesday. That is true; Arkansas’s bill, like Indiana’s law, went farther than the federal RFRA by extending its protections to large corporations, not just individuals and mom-and-pop businesses.
Scaling it back would be a good idea—but it leaves most of the problems intact, in four ways:
1. The Message Is Still Discrimination
Obviously, RFRA is as much symbolic as legally potent. Because this law comes at this time, it sends a powerful symbolic message in addition to its legal one, which is why the CEO of WalMart said it would “undermine the spirit of inclusion” of the state.
All of that would remain in an identical-to-federal RFRA. And the websites of the American Family Association, Family Research Council, Becket Fund, and Alliance Defending Freedom all have examples of the kinds of religious freedom they want to protect. They include the right of florists, caterers, bakers, wedding halls, for-profit wedding chapels, inns, and photographers to turn away gay customers because they are gay. They say that is not discrimination, of course. But their definition of “not discrimination” includes saying “No Gays” on the hotel door. If that isn’t discrimination, what is?
And the same people pushing Arkansas’s RFRA are the ones who pushed the state’s “Don’t Save the Gays” law two months ago, which bars any municipality from having an anti-discrimination law. That’s right, the law says that not only are gays not protected by the state—but they’re not allowed to be protected anywhere in the state. If you go legislator by legislator, lobbyist by lobbyist, surprise! The same people are now pushing an RFRA. Just a coincidence, I’m sure.
We’ve seen this before. There were religious reasons proffered by segregationists like Lester Maddox, back when seating blacks and whites together was as religiously offensive as snapping photos of a gay couple is today. That’s also why Bob Jones University went all the way to the Supreme Court to preserve its racist housing policies—because they think God told them to. LGBT equality may be the cutting edge issue now, and of course, LGBT equality is different from civil rights for African Americans, but in terms of the nature of the opposition, this is familiar territory. The message is loud and clear, even if the federal RFRA is copied—because that is what all of the bill’s backers are shouting.
2. Hobby Lobby
The first is Hobby Lobby, in which the Supreme Court found, for the first time, that a corporation’s “religious freedom” could trump someone else’s rights. Prior to that decision, religious freedom cases were like an Arkansas case decided last January, about a prisoner’s right to grow a short beard for religious reasons. No one else is harmed by that beard. But hundreds of Hobby Lobby employees are harmed by their boss’s religious scruples.
Since that game-changing decision, only Mississippi and Indiana have adopted such laws, eyes open. Arkansas would be No. 3. That is why even an RFRA identical to the federal RFRA is still problematic. Thanks to two decades of conservative judicial activism, culminating in the Hobby Lobby decision, 2015 is not 1993.
3. The Bill Is Still Too Broad
Even if the photographer is discriminating, some would say, we should still cut them some slack. After all, it’s an individual in an expressive art, and there are other photographers. But the same justifications have also been used in far more serious cases. Doctors have refused to treat the children of same-sex couples. Hospitals don’t let partners visit one another. People have been fired simply for being gay. This is not just about Mom & Pop’s Photo Shop; it’s about thousands of businesses across the country not obeying the same laws as the rest of us. And all that would remain in the Hutchinson compromise.
The hyperbole we’re hearing is in statements like “The government shouldn’t force religious businesses and churches to participate in wedding ceremonies contrary to their owners’ beliefs.” That chestnut comes from Tony Perkins of the Family Research Council. Well, rest assured, Tony, the Supreme Court agrees with you. No church or religious organization has ever been compelled to “participate in wedding ceremonies.”
The close cases involve for-profit enterprises operated by churches—like wedding halls far away from the church doors. That’s a close case. But to say churches would be compelled to do anything is just a scare tactic.
There is no need for an RFRA to protect these religious freedoms.
Indeed, let’s debunk the core myth here: that religious freedom is really at issue when a business can’t discriminate. I know it may feel that way to the would-be discriminator. But feeling doesn’t make it so. Hobby Lobby’s owners are not causally or religiously complicit in their employees’ health-care choices. My wedding photographer is not “participating” or “enabling” my wedding—and even if she is, she’s doing her job, not voicing her religious opinion.
4. There is a better way
If, politically, an RFRA just has to happen, the best way to make it better would be to add a one-sentence amendment that would bar its application in anti-discrimination contexts. That sentence: “This chapter does not establish or eliminate a defense to a claim under any federal, state or local law protecting civil rights or preventing discrimination.”
If an RFRA is really not about discrimination, then the law should say it is not about discrimination. And if backers won’t make it do that, they have some explaining to do.