The Arkansas House of Representatives today approved all three Senate amendments to HB 1228, a version of the Religious Freedom Restoration Act (RFRA), sending the measure to the Governor for his signature. The vote comes amid a firestorm of controversy surrounding a similar bill recently signed by the Governor of Indiana.
Twenty (20) states including Indiana have now adopted some version of RFRA, a 1993 federal law barring the federal government from substantially burdening a person’s religious exercise unless it is necessary to achieve a compelling government interest. Courts in an additional ten (10) states have concluded that their state constitutions provide a similar level of religious liberty protection.
The crux of the controversy surrounding the Indiana version is that it allows a defendant in a civil suit to use RFRA as a defense, regardless of whether the government is a party to the suit. Senator Charles Schumer, who introduced RFRA into the U.S. House in 1993, argues this element of Indiana’s law critically distinguishes it from its federal counterpart. Critics claim this expansion into suits between private parties was designed to empower businesses to discriminate against customers based on sexual orientation.
For starters, Arkansas’ bill likewise does not require the government to be a party to the suit to allow a RFRA defense.
Regardless of whether the state or one of its political subdivisions is a party to the proceeding, a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, in violation of §16-123-405, may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding.
As Howard Friedman at Religion Clause points out, under Indiana’s statute, RFRA can be used only as a defense (not also to make a claim, as here) when the government is not a party.
Arkansas’ bill also offers a potentially troubling definition of “compelling government interest”:
“Compelling governmental interest” means a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion;
The federal RFRA does not define “compelling government interest” (neither does Indiana’s RFRA). Requiring an interest “of the highest magnitude,” however, could be interpreted as creating a higher hurdle to overcome a RFRA claim or defense than the federal law
The Arkansas measure does clarify through a legislative finding that complying with federal civil rights law qualifies as a “compelling government interest.”
If Governor Asa Hutchinson signs HB 1228, Arkansas would become the 21st state to enact a RFRA law. Follow state RFRA proposals and state RFRA laws at the State RFRA Bill Tracker.