Arkansas Governor Admits RFRA Bill Is Not Like Federal Version

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.


  •' Jim Reed says:

    It is a fluid situation. An article on huffingtonpost just said the first restaurant in IN announced it will use the law to refuse to cater for gay couples. That should split the population, and some will boycott that restaurant, and others will flock there today to eat and show support. Other restaurants will see all the new business that restaurant gets, and these restaurants might also want to take advantage of the law to refuse service and increase business. Then other types of businesses besides restaurants might try to figure out how they can get in on the deal. It could only be a minority of businesses that would ever profit from refusing service, but it might be enough to make this a popular law in that state. That will increase pressure on other states to both copy this law, and avoid copying this law.

  •' Jim Reed says:

    His kid told him not to sign the bill. Think how much better this world would be if politicians started following the advice of their kids.

  •' Harry Underwood says:


  •' Anton says:

    GOP Clown Productions Presents
    ‘Scared Straight’
    Starring Mike Pence
    and Asa Hutchinson

  •' DHFabian says:

    Well… Jesus said that it would be easier for a camel to walk through the eye of a needle than for a rich man to enter the Kingdom of Heaven. Legislators are quite rich. This would exclude them from having any legitimate authority when it comes to religious matters. Just saying…

  •' DHFabian says:

    I don’t understand what they are afraid of. Regardless, I can’t see using religion as an excuse to discriminate against gay people. That they claim it’s “sinful” is irrelevant, since a number of our policies, both domestic and international, contradict Christ’s teachings (esp. on matters of war and our economic policies).

  •' Craptacular says:

    You presume that religious people actually follow their christ’s teachings, or, if they do, they follow all of his teachings.

    The beauty of the RFRA’s is that the religious can pick and choose which teachings they will follow and expect from others. The hypocrisy is that they don’t allow other people the same consideration.

  •' Jim Reed says:

    I guess with the new exceptions just added this has now become a law in search of a group to discriminate against.

  •' Jim Reed says:

    Thursday’s huffingtonpost article says the restaurant has been receiving threatening messages, so they shut down. Then the internet started collecting money for them to make up for it, and so far have given them over $40,000. I guess there is a market for going big on both sides of this issue.

  •' Jim Reed says:

    On Friday they have over half a million collected, which is more than twice their target amount.

  •' Jim Reed says:

    Saturday’s headline:
    Anti-Gay Pizzeria: God ‘Blessed Us’ With Over $800,000 For ‘Standing Up’

Leave a Reply

Your email address will not be published. Required fields are marked *