Arkansas’ narrow defeat of religious freedom proposal has a backstory

Denver, Colo., Nov 14, 2022 / 15:29 pm

An Arkansas ballot measure to put strong religious freedom protections into the state constitution was narrowly defeated on Election Day.

As of Friday, 50.43% of voters rejected Issue 3, the Arkansas Religious Freedom Amendment. The 439,003 votes against Issue 3 outnumbered votes in favor by only 7,500.

The proposed constitutional amendment would have barred government interference with an individual’s religious freedom “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 Arkansas Legislature passed a 2015 bill similar to the federal Religious Freedom Restoration Act of 1993, which sought to restore religious freedom protections weakened by various U.S. Supreme Court decisions. Issue 3 would have placed these protections into the state constitution.

Dennis Lee, chancellor for administrative affairs for the Roman Catholic Diocese of Little Rock, told CNA the diocese did not take a position on the proposal.

“There is protection for religious freedom in the U.S. Constitution and federal case law, the Arkansas Constitution and state case law, the federal Religious Freedom Restoration Act, and Arkansas’ Religious Freedom Restoration Act,” Lee said on Friday. “Whether Arkansas did or did not need the additional protection provided by Issue 3 was a matter of prudential judgment to be decided by the voter.”

“Any realized threats to religious freedom can be addressed in other ways by all three branches of government without necessarily amending the state’s constitution,” he added. “The Arkansas Legislature will convene in January with a new governor. Maybe protection of religious freedom will be an issue they deal with. Time will tell.”

Issue 3 was endorsed by the national religious freedom legal group Alliance Defending Freedom, the Arkansas Baptist State Convention, Focus on the Family, and Family Research Council Action.

The amendment’s local backer, the Little Rock-based Family Council, is part of a policy network associated with Focus on the Family, a Colorado-based evangelical Christian group.

David Cox, assistant director of the Family Council, was disappointed in the ballot measure’s result.

“We wish that this measure had passed. It's unfortunate that it did not. It failed by a very narrow margin and I think that speaks to just the strong support for religious liberty in Arkansas,” Cox told CNA.

He suggested there was “a lot of confusion surrounding some of the language in it.”

Republican state Rep. Mary Bentley said she backed the proposal because she felt it would offer protections in cases such as wedding-related businesses who decline to serve couples seeking nontraditional marriages.

In some states, florists and wedding cake bakers have faced legal complaints or lawsuits for declining to serve same-sex weddings on religious grounds.

However, Bentley also suggested Issue 3’s wording confused voters.

“Lawyers had said that we needed that exact language to make sure that we were protected,” she told the NBC affiliate KARK News. Bentley added that strong conservatives might have seen the ballot language allowing government burdens in exceptional cases “as an infringement instead of a protection.”

Foes of Issue 3 included the American Civil Liberties Union of Arkansas, which contended it would be a “radical change” that would allow individuals to challenge almost any state law.

“Religious freedom is a fundamental right, but it’s not an excuse to target, harm, or discriminate against people,” the group said in April 2021 as the legislature prepared to place the proposal on the ballot.

The legal group also warned of corporations’ hostility to similar religious freedom bills.

“Similar laws in Indiana and Arizona led to widespread boycotts, costing states millions in revenue,” the legal group said.

Cox said the assumption that religious freedom is already protected isn’t necessarily true.

“The courts are much more inclined toward letting the government burden the free exercise of religion in many cases,” he told CNA. “If all you have to go on is the First Amendment or the Arkansas Constitution, then you might think that you have some really good protections. But when you look at how courts interpret that language, they just don’t interpret it the way that most of us would.”

Cox said that in recent decades U.S. Supreme Court precedents have shown a “real weakness” in protecting the free exercise of religion. This means that the government can burden the free exercise of religion “even when it does not have a compelling interest at stake” or when there may be “a less restrictive way that the government could operate.”

“That was a major shift,” he said. Before the 1990s, “courts had shown a lot of deference to religious liberty, and they had interpreted the First Amendment the way that most of us would: that you and I have a right to freely exercise our religion.”

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Though the state legislature has already passed a statutory religious freedom restoration act, Cox said that any future legislature could repeal or amend the law and weaken or remove protections.

About 21 states have passed religious freedom restoration acts, the pro-religious freedom legal group Becket says on its website.

As CNA has previously reported, wealthy foundations have poured millions of dollars into legal groups, advocacy groups, and other nonprofits to limit religious freedom protections that conflict with abortion advocacy and LGBT causes. Last year the American Civil Liberties Union received a $15 million donation from billionaire heir and Arcus Foundation founder Jon Stryker, whose LGBT activism includes efforts to limit religious freedom.