Wednesday, April 01, 2015

Why Arkansas Is Worse Than Indiana

Nelson Tebbe

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. 

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