Nelson Tebbe, Micah Schwartzman, and Richard Schragger
Yesterday, the Arkansas legislature passed a
state RFRA and sent it to Governor Hutchinson. Today, the governor sent
the bill back to the legislature, asking for language that is closer to the
federal RFRA. Arkansas is being compared to Indiana, whose RFRA has drawn a
firestorm of criticism. But in fact Arkansas law poses a greater danger to
civil rights—and that is true regardless of whether the Arkansas RFRA is passed
and what it ends up saying. That is because of another
law, enacted recently, that prohibits localities from passing LGBT
anti-discrimination measures. Considering the overall legal landscape in the
state, it is unlikely that any changes in the RFRA bill will improve the grim
situation for LGBT citizens of Arkansas.
Start with the current text of the Arkansas RFRA bill, which
shares troubling features with Indiana’s law and is even broader in some
respects. Most significantly, the Arkansas law is applicable in suits between
private parties, just like the Indiana RFRA. As
two of us have recently explained, those provisions are designed to change
the legal analysis of cases where wedding vendors have refused service to
same-sex couples in violation of local civil rights protections.
Other aspects of the Arkansas RFRA bill are even broader
than Indiana’s. For example, the Arkansas law protects all corporations and
other legal entities, while Indiana’s law only applies to those where the
religious beliefs are held by individuals “who have control and substantial
legal ownership of the entity.” Moreover, a substantial burden on religion can
only be justified under the Arkansas approach if it can be shown that applying
the burden “in this particular instance” is “essential” to furthering a
compelling governmental interest. Both of the quoted phrases are new to
Arkansas. Whether either would matter in litigation is uncertain.
But what makes the Arkansas situation more troubling than
the one in Indiana has little to do with the details of the RFRA bill. It is
the way the new RFRA interacts with another new Arkansas law. Act
137, which became law in late February of 2015, provides that “A county,
municipality, or other political subdivision of the state shall not adopt or
enforce an ordinance, resolution, rule, or policy that creates a protected
classification or prohibits discrimination on a basis not contained in state
law.” In other words, localities within Arkansas may not pass
anti-discrimination measures that protect LGBT citizens in employment, housing,
or public accommodations—because state law does not provide such protections.
Arkansas’s stated interest in passing the law was legal uniformity among
jurisdictions within the state.
But didn’t the Supreme Court once strike down a similar
measure? Yes. In Romer v. Evans, the Court
invalidated a Colorado constitutional amendment that prohibited localities from
passing LGBT anti-discrimination measures. In an opinion by Justice Kennedy,
the Court invalidated the amendment under the Equal Protection Clause, saying
that it must have been motivated by animus. And there too, the state had tried
to defend the law based on its interest in legal uniformity.
Apparently,
Arkansas lawmakers believe that their Romer-style
law can withstand a constitutional challenge because it applies more generally,
prohibiting civil rights protections for all classes of people not protected by
state law. Sachin Pandya reports
that a similar Romer-style law in
Tennessee survived a state court challenge in a ruling that turned on standing
but also suggested that the Tennessee law was distinguishable in substance because
it applied more generally. Whether that would be enough to defend against an
equal protection challenge in Arkansas, where the legislative record may be
more revealing, remains to be seen.
Stepping back, legislators in both states seem to be
anticipating a Supreme
Court decision extending marriage equality to same-sex couples. Given that
context, some commentators
and scholars
have argued that the LGBT movement is winning the culture wars and should be
magnanimous in its victory toward people with traditional religious views.
There is something to that argument. And civil rights law does balance between
religious freedom and equal citizenship for all Americans. For example,
religious congregations do and should have a constitutional right to exclude
anyone they like from private weddings. Moreover, private church buildings need
not be made available for unorthodox wedding celebrations. And churches should
continue to be able to discriminate in employment in favor of co-religionists.
Moreover, religious freedom statutes need not be objectionable—they can provide
necessary protections in cases like Holt v. Hobbs.
Yet there is real reason to worry that RFRAs like those we
are seeing now could cause harm to LGBT citizens and other third parties. Consequently,
it is a little difficult to ask magnanimity of LGBT citizens in places like Arkansas
and Indiana, where they have not yet received comprehensive civil rights
protections in employment, housing, and public accommodations. As an example of
possible harm, consider the wedding vendor cases, which the RFRAs seem designed
to address. Protection against discrimination in public accommodations is a
core civil rights concern, not a peripheral one. Those counseling magnanimity
have responded by suggesting a limiting principle, namely that religious
objections go to weddings, which are
considered to be religious sacraments, and not to discrimination against LGBT people. Vendors like the photographer Elaine
Huguenin and the florist Barronelle
Stutzman say they would happily serve gay or lesbian people—they object
only to same-sex marriage. Yet that limiting principle would seem to allow
refusals of service not only for weddings, which are momentary, but for marriages,
which are intended to last years. It could permit discrimination in marriage retreat
programs, married student housing, joint adoption placement, and employment
benefits for same-sex spouses. It could even allow states to shield public
officials who refuse to process civil marriages on religious grounds. So this limiting
principle may not be limiting enough.
And then there is Hobby Lobby. Although it did not
concern LGBT rights, the case did involve an anti-discrimination provision,
namely the contraception mandate for women. And there, of course, the religious
freedom claim prevailed. So although generosity toward citizens with sincere
religious convictions is always important, it should be limited to situations
where that generosity does not result in meaningful harm to other citizens,
especially those who still lack full and equal citizenship in states like
Arkansas.