Bills on ‘Religious Freedom’ Upset Capitols in Arkansas and Indiana
By Campbell Robertson and Richard Pérez-Peña of The New York Times
March 31, 2015
LITTLE ROCK, Ark. — The Arkansas legislature on Tuesday passed its version of a bill described by proponents as a religious freedom law, even as Indiana’s political leaders struggled to gain control over a growing backlash that has led to calls to boycott the state because of criticism that its law could be a vehicle for discrimination against gay couples.
The Arkansas bill now goes to the state’s Republican governor, Asa Hutchinson, who expressed reservations about an earlier version but more recently said he would sign the measure if it “reaches my desk in similar form as to what has been passed in 20 other states.” But the bill already faces a significant corporate backlash, including from Doug McMillon, the chief executive of Walmart, the state’s largest corporation, who said Tuesday afternoon that Mr. Hutchinson should veto it.
In Indiana, Gov. Mike Pence was in a difficult spot trying to satisfy both the business interests that have threatened to punish the state for its bill as well as the conservatives who fought for the measure and do not want to see it diluted.
Mr. Pence has said he wants to modify the bill, but he has not indicated how he could do so without undermining it. He rejected claims that the law would allow private businesses to deny service to gay men and lesbians and said the criticism was based on a “perception problem” that additional legislation could fix.
“I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses the right to discriminate against anyone,” Mr. Pence, a Republican, said at a news conference in Indianapolis.
He acknowledged that the law had become a threat to the state’s reputation and economy, with companies and organizations signaling that they would avoid Indiana in response. Mr. Pence said he had been on the phone with business leaders from around the country, adding, “We want to make it clear that Indiana’s open for business.”
The bill in Arkansas is similar to the Indiana law, with both diverging in certain respects from the federal Religious Freedom Restoration Act. That act was passed in 1993 and signed into law by President Bill Clinton, Arkansas’s most famous political son.
But the political context has changed widely since then. The law was spurred by an effort to protect Native Americans in danger of losing their jobs because of religious ceremonies that involved an illegal drug, peyote. Now the backdrop is often perceived to be the cultural division over same-sex marriage.
Both states’ laws allow for larger corporations, if they are substantially owned by members with strong religious convictions, to claim that a ruling or mandate violates their religious faith, something reserved for individuals or family businesses in other versions of the law. Both allow religious parties to go to court to head off a “likely” state action that they fear will impinge on their beliefs, even if it has not yet happened.
The Arkansas act contains another difference in wording, several legal experts said, that could make it harder for the government to override a claim of religious exemption. The state, according to the Arkansas bill, must show that a law or requirement that someone is challenging is “essential” to the furtherance of a compelling governmental interest, a word that is absent from the federal law and those in other states, including Indiana.
“It has way too broad an application,” said John DiPippa, a professor at the University of Arkansas at Little Rock law school, who had spoken before the legislature in 2011 on behalf of a narrower and ultimately unsuccessful version of the bill. “I never anticipated or supported applying it to for-profit companies and certainly never anticipated it applying to actions outside of government.”
Though Arkansas has now joined Indiana as a target of criticism from businesses, condemnation of Indiana’s law continued to grow.
Days before the N.C.A.A. is to hold the men’s basketball Final Four in Indianapolis, the group’s president, Mark Emmert, said Tuesday that the new law “strikes at the core values of what higher education in America is all about.” The city’s mayor, Greg Ballard, a Republican, and the state Chamber of Commerce have called on lawmakers to change the statute.
Business executives, notably leaders of tech companies like Apple and Yelp, have spoken out against the law, and Angie’s List cited it in canceling plans to expand its facilities in Indianapolis. Entertainers have canceled tour dates in the state, a gaming convention is considering going elsewhere and the governors of Connecticut, New York and Washington have imposed bans on state-funded travel to Indiana.
On the other hand, likely Republican presidential contenders — prominent among them Jeb Bush, Ted Cruz and Marco Rubio — have supported the law.
Even the White House joined in. “This piece of legislation flies in the face of the kinds of values that people all across the country strongly support,” Josh Earnest, the White House press secretary, told reporters on Tuesday at his daily briefing.
Mr. McMillon of Walmart, in a statement, said the bill in Arkansas “threatens to undermine the spirit of inclusion present throughout the state,” while the chief executive of Acxiom, a marketing technology company based in Little Rock that employs nearly 1,600 statewide, described the bill as “a deliberate vehicle for enabling discrimination.”
Governor Hutchinson, a pragmatic Republican who ran on a jobs platform, said in an earlier statement that he was “pleased that the legislature is continuing to look at ways to assure balance and fairness in the legislation.”
But with the votes on Tuesday, the decision now lies with him whether this balance has been effectively struck. His office was quiet on Tuesday, with a spokesman declining to comment, though the governor did meet in the morning with Democratic legislators who had concerns about the bill.
The future of similar measures elsewhere remained unclear. In Georgia, where the legislature will adjourn for the year on Thursday, opponents of a pending proposal rallied Tuesday outside the State Capitol. Although the bill’s path has been turbulent — a Monday committee hearing about the measure was canceled — supporters and critics alike said it could be approved in the session’s final hours. North Carolina is far earlier in its debate. Religious freedom proposals surfaced last week in both the House and the Senate, and neither has faced a vote at even the committee level.
In Indiana, lawmakers are expected to go to a conference committee as early as Wednesday morning. They are likely to use an unrelated bill as a vehicle to create the clarification Mr. Pence has requested. Aides to lawmakers said they expected passage to happen as early as Thursday, but it is not certain that a measure acceptable to the legislature will be acceptable to critics.
And supporters of the laws urged political leaders not to bend to pressure. Micah Clark, executive director of the American Family Association of Indiana, said he feared “a capitulation that enshrines homosexual behavior as a special right in Indiana.” Tony Perkins, president of the Family Research Council, said, “The government shouldn’t force religious businesses and churches to participate in wedding ceremonies contrary to their owners’ beliefs.”
Proponents of Arkansas’s bill insisted that there was no intent to discriminate against gays and lesbians, pointing out that there had been several previous attempts to pass such a law well before same-sex marriage came to be seen as nearly inevitable.
“The whole gay issue really was not a big discussion four years ago,” said Jerry Cox, the president of the Family Council, an Arkansas-based lobbying group. “It wasn’t discussed that much two years ago but for whatever reason that has been the focal point of the legislation this time.”
Critics of the law countered that the same legislators who presented this bill sponsored another law earlier in the session that forbids towns and cities to pass their own anti-discrimination ordinances, a law that scuttled ordinances that would have protected gays and lesbians. Mr. Hutchinson did not sign that bill when it came to his desk, but allowed it to become law.
As late as Tuesday afternoon, legislators who opposed the bill in Arkansas were trying to add amendments clarifying that it could not be used to discriminate against gays and lesbians, similar to what political leaders in Indiana are considering. But the sponsors of the legislation refused those amendments during the legislative process and on Tuesday dismissed them as last-minute efforts to kill the bill.
“All the way through this I thought it was unnecessary because of the fact that it didn’t do everything that everybody was saying it was doing,” Representative Bob Ballinger, a Republican and the chief sponsor of the bill, said in the minutes after the bill’s successful passage. “In hindsight maybe I would have done it to maybe avoid all the pain.”
