Religious freedom on the Arkansas ballot: what to know

St. Louis, Mo., Oct 25, 2022 / 14:00 pm

Voters in Arkansas will see a ballot measure related to religious freedom when they go to the polls Nov. 8. 

Issue 3 will ask Arkansas voters whether the state constitution should be amended such that the government cannot “burden” a person’s freedom of religion unless the government demonstrates that the burden is necessary to further a compelling government interest and uses the least restrictive means of furthering that interest.

Here’s what the ballot measure is and why it matters:

What will appear before Arkansas voters?

Here’s the full text of Issue 3: 

“An amendment to the Arkansas Constitution to create the ‘Arkansas Religious Freedom Amendment’; and to provide that government may never burden a person’s freedom of religion except in the rare circumstance that the government demonstrates that application of the burden to the person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest.”

The ballot language does not include a definition of “burden,” leaving that for the courts to decide on a case by case basis. 

Why was this proposed?

State Sen. Jason Rapert, who sponsored the ballot measure, has said that he introduced it in response to what he saw as violations of civil rights during the COVID-19 pandemic.  

Critics have pointed out that the state constitution already includes a section that states: “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences … No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience.”

In addition, this is not the first effort explicitly to protect religious freedom in Arkansas. In 2015, the state Legislature passed Act 975, which closely aligns Arkansas law with the federal Religious Freedom Restoration Act of 1993. According to the Encyclopedia of Arkansas, any governmental action in Arkansas that is a “substantial burden” to an individual’s free exercise of religion may only stand if it furthers a “compelling governmental interest” in the “least restrictive” manner possible. 

Supporters of Issue 3 say the amendment is necessary to codify protection specifically for religious practice and not only conscience protections. And by removing the word “substantial” when referring to burdens on religious practice, Issue 3 would provide stricter limits on what a government can use as a reason to “burden” someone’s religious rights, 5news reported. 

In addition, Act 975 explicitly exempted the Department of Correction, the Department of Community Correction, county jails, and detention facilities, which means the law does not apply to these agencies, 5news reported. The present amendment would remove those exemptions.

What should Catholics think?

The Diocese of Little Rock, which encompasses the entire state of Arkansas, has not yet commented publicly on Issue 3. CNA reached out to the diocese for comment. 

However, Bishop Anthony Taylor offered a fulsome analysis of Act 975 in 2015. 

“In the United States religious liberty is our first and most cherished liberty. It is a God-given right protected by our nation’s Constitution, federal law, and now state law. Not only Catholics, but people of all religious faiths and worshipping communities in our country need to be free to live their faith and act according to their conscience without fear of government interference,” Taylor wrote at the time. 

Taylor noted that some observers had characterized Act 975 as a license to discriminate against those who identify as LGBT. He said that Catholics’ right to decline to participate in LGBT ceremonies or activities does not amount to discrimination or hatred but is rather an exercise of their right to practice their own faith. 

“Choosing not to participate in certain ceremonies or activities due to religious convictions is not discrimination against the persons involved, nor is it necessarily an expression of hatred toward the persons involved,” Taylor wrote. 

“Rather, it is very simply a choice to abstain from participating in conduct or actions that may be irreconcilable with one’s sincere religious beliefs, and it is the right to abstain from these actions which the Arkansas Religious Freedom Restoration Act seeks to protect. The Catholic Church teaches and believes that all persons (including LGBT persons) have an inherent worth and dignity, and that all persons, precisely because they are persons, should be accorded dignity and respect.”