The Family Council Action Committee, a conservative 501(c)(4) public policy organization based in Little Rock, announced at a conference in the State Capitol its three-prong plan for passing the “Arkansas Religious Liberty Amendment,” which is Issue 3 on the upcoming election ballot.
Approved for the ballot by the Arkansas General Assembly, where it was primarily sponsored by Sen. Jason Rapert of Conway and Rep. Jimmy Gazaway of Paragould, the amendment would, in the words of FCAC Director Jerry Cox, “[affirm] the free exercise of religion and ensures that state and local governments won’t burden your religious liberties.”
An existing state law, Act 975, already provides for the protection of religious liberties in a way that mirrors a federal law, stating that the government may not substantially burden an individual’s free exercise of religion unless there is a compelling government interest, which must then be enacted in the least restrictive manner possible. The words substantial, compelling and least restrictive are vague at best.
The primary effect of the amendment would be to enshrine the statement from Act 975 into the state constitution while removing the word “substantial” and exempting claims from the rule of general applicability. Rules of general applicability mean that a law that is neutral toward freedom of speech or religion usually cannot be challenged on those grounds. E.g., a law that prevents ritualized animal sacrifice would directly restrict the practice of religion, while a law against animal cruelty would be neutral on the subject of freedom of religion.
“Issue 3 is carefully worded,” said Cox. “It clearly says that the amendment doesn’t authorize the government to burden religious freedom. At the same time, it says the free exercise of religion cannot conflict with a compelling government interest. Public safety and security would be a couple of examples of compelling government interests. This language strikes a good balance that has worked well in Alabama and in Arkansas’ own state code. The difference is that Issue 3 elevates that language by finally writing it into the Arkansas Constitution.”
Cox believes that Issue 3 is necessary to prevent the erosion of religious freedom, but this stance is not without its opponents. Democratic State Senator Greg Leding of Fayetteville recently wrote about his intention to vote against the bill, citing concerns that it would allow people to use religion as a political and legal weapon.
“If voters approve Issue 3, it could become easier for people to use religion to discriminate against others,” said Leding. “Basically, someone could potentially use Issue 3 to excuse themselves from any law they didn’t like.”
He also quoted Don Byrd from the Baptist Joint Committee for Religious Liberty: “The proposed amendment that advanced in Arkansas strays from the federal version of RFRA in a potentially significant way: by leaving out the word “substantial.” Instead, the law is triggered by *any* burden on religious exercise… The precise meaning and legal significance of the “substantial” requirement is still somewhat unsettled. But, it does ensure that not every incidental impact on a person’s religion requires the state to meet the high compelling interest test. Currently, the Arkansas state RFRA provides robust protection for religious freedom while also being mindful of other important state interests, which makes this amendment unnecessary.”
A statement from Jerry Cox disagrees with Byrd’s point of view: “If you don’t believe religious freedom is under assault, just try exercising it sometime. Over the past thirty years, the free exercise of religion has become a second class right. People of faith have been forced to spend their time and resources in court defending their right to live out their deeply-held convictions. Arkansas’ constitution doesn’t even protect the free exercise of religion. At best, it protects general rights of conscience and belief. Issue 3 affirms and protects the free exercise of religion in Arkansas.”
Many opponents of the amendment are concerned that it could be used to interfere with LGBT rights; at the time of Act 975’s passing, same-sex marriage was being debated in both the Arkansas and U.S. Supreme Courts, and supporters of the bill specifically cited same sex marriage as a reason that the bill needed to be passed.
The Family Council Action Committee explained its strategy for passing the amendment: “We are working in churches to support Issue 3. We are coordinating with volunteers in communities across the state. And we are forming a coalition of faith leaders who support religious liberty. We are in the process of distributing several hundred thousand fliers supporting Issue 3 in churches across the state. We have a network of approximately 300 volunteers in communities around Arkansas who are helping us promote Issue 3 at the local level. And we anticipate announcements in support of Issue 3 from other faith leaders in Arkansas as the election approaches. Our constitution exists to protect our inalienable rights. The free exercise of religion is one of those rights. Issue 3 protects religious liberty. We look forward to voters passing Issue 3 on November 8.”