New state RFRA bills not like ’93 federal law

When Republican Arkansas Governor Asa Hutchinson surprised many by announcing Wednesday that he wanted changes to the Religious Freedom Restoration Act passed by his state’s legislature, he also admitted something about the new push for these laws — something missing from much of the recent RFRA coverage, and something that contradicts arguments from most GOP advocates.

“The bill that is on my desk at the present time,” said Hutchinson, “does not precisely mirror the federal law.” The problem, according to the governor, was the language that extends religious belief exemptions to cases that do not include a state entity. That provision substantially broadens the reach of the state law over the 1993 federal Religious Freedom Restoration Act.

As reported yesterday, this is also a major sticking point for those objecting to Indiana’s new RFRA law. That state’s governor, Republican Mike Pence, said in a Tuesday press conference he wanted “clarifying” legislation to prevent use of the law to discriminate against LGBT Hoosiers, but he did not ask for the law to be repealed or for a rollback of the expansion of RFRA exemptions to private disputes.

"The Arkansas bill, like the Indiana bill, has a very broad definition of a 'person' who can assert religious liberty rights under the statute," said Columbia Law School professor Katherine Franke, faculty director of the school’s Public Rights / Private Conscience Project, in an interview with The Washington Post. The “definition is much broader than the federal definition, even as the Supreme Court recently interpreted it in Hobby Lobby."

As discussed, last summer’s Hobby Lobby decision extended the reach of the federal “religious freedom” law to include a “closely held” private business’s choice to deny contraception coverage to its employees. That was followed by additional rulings that used the Hobby Lobby language to further expand the “beliefs” exemption, but in all of these cases, a state actor was involved, most notably requirements set forth in the Affordable Care Act.

Under the Indiana law and the one proposed in Arkansas, a host of actors, from an individual to a large corporation, can flout requirements and then claim legal protection on grounds of “religious liberty,” even in disputes between two private parties.

And the Indiana law goes a step further. In most legal cases, a plaintiff has to demonstrate harm before a case can proceed, but Hoosiers can now sue on the grounds that some law, regulation, or requirement could potentially infringe on their “sincerely held religious beliefs” some time in the future.

This radical precrime provision is currently absent from the Arkansas legislation.

What the Arkansas bill does propose, however, is a major shift in the burden-of-proof standard in religious exemption cases. In order to supersede a personal or corporate claim of religious freedom, the other party (usually the state) would have to show that the interests set forth in the law are “essential.”

At the federal level, the standard is “compelling.”

"It sounds like not a very big difference with that one word,” Franke said to the Post, “but what that one word does is make it much more difficult for the state to say that this is an important public interest that they're advancing.”

If the distinction still seems too subtle, ask if access to a wedding cake for a same sex union represents a compelling interest in a civil society; then ask if it is “essential.”

And in that question there is, perhaps, a demonstration of the most radical part of the current push for “religious liberty”: the idea that one person’s “religious freedom” supplants other protections claimed by a third party.

"Religious liberty is not an absolute right. No right secured by the Constitution is an absolute right," explained Franke. "We always balance these rights against other important government interests and public interests."

“The way these RFRA laws are written, it sounds like these are absolute rights that trump any other state interest," Franke told the Post. "And that's what's problematic about them."

It is a problem that cannot be overcome by “clarifying language” on a law’s intent. In February, it should be noted, Arkansas adopted a measure that bars cities and counties from enforcing nondiscrimination statutes that go beyond state protections. The prohibition, which was not signed by Hutchinson but was allowed to become law because he did not act on it, was seen by groups such as the ACLU as a blatant attempt to erode LGBT protections at the local level.

It is yet another point where the RFRA action in the states now differs from the federal standard. Without repeal, in the case of Indiana, or, in the case of Arkansas, a governor’s veto or a withdrawal by the legislature, claims of all-powerful “religious liberty” will continue and likely proliferate, no matter how those states’ officials might want to “clarify” their intent.