In a press conference this morning, Arkansas Governor Asa Hutchinson, a Republican, said he would not sign HB 1228, a Religious Freedom Restoration Act passed by the legislature yesterday. The reason: it does not mirror the federal RFRA.
Hutchinson has just exposed his fellow Republicans who so adamantly supported Indiana’s recently-enacted RFRA on the erroneous grounds that it is the same as the federal version. Although the Arkansas bill differs from Indiana’s RFRA (and I’ll explain those differences in a moment), it does share some crucial features: it opens the possibility of invoking religious infringement claims to corporations and other for-profit companies, and it allows the use of the statute as a claim or defense in lawsuits to which the government is not a party.
Indiana’s Governor, Mike Pence, has wrongly insisted that Indiana’s new law is just like the federal version. In contrast to Hutchinson, Pence has only called for a clarification that the bill does not permit discrimination; a change in language is reportedly under discussion. In contrast, Hutchison has recognized one crucial difference between the Arkansas bill and the federal RFRA, and has specifically called for it to be changed to align with the federal version.
Hutchison maintained that it was his intention all along to have the Arkansas bill reflect the federal version. “The bill that is on my desk at the present time does not precisely mirror the federal law,” he said this morning, citing the private litigation provision specifically.
Of course, these changes would alter the bill in such a way that will upset its proponents, who specifically want the ability for such claims to be raised in litigation between private parties. But major companies, including Arkansas’ own Wal-Mart, have called on Hutchinson to veto the bill.
Still, though, Arkansas recently enacted a law that bars municipalities from passing laws that protect LGBT rights more robustly than under state law. It’s not exactly a bastion of LGBT equality, which would have made the RFRA, as passed yesterday, a far more onerous proposition.
What’s more, Hutchinson did not address the legal standard contained in the bill. As Americans United for the Separation of Church and State explained yesterday after the Arkansas legislature passed the measure, this part of the Arkansas bill would alter the federal legal standard to make it easier for someone asserting a religious freedom violation to prove their case:
Aspects of the Arkansas bill are even more troubling than Indiana’s RFRA. Like the federal RFRA, Arkansas’s RFRA states that the government cannot “substantially burden” religion, but unlike the federal law, “substantial burden” is defined as virtually anything that inhibits religious practice. It also states that government may not infringe upon religion unless doing so would be “essential.”
To satisfy the bill’s opponents, that standard would, like the other provision Hutchinson cited, have to be changed to mirror the federal language (or, of course, the bill dropped altogether). Still, though, Hutchison has exposed fellow Republicans for their claim that these bills are the same as the federal RFRA. That has been the basis for RFRA supporters to argue that opponents are hysterically making outrageous claims about the potential uses of the new laws. Hutchinson has just admitted that bills’ opponents are right.