If you wanted Arkansas House Bill 1228 to allow businesses to avoid serving gay people, you might just be a redneck.
With unanimous consent, let me amend that: If you wanted Arkansas House Bill 1228 to allow businesses to avoid serving gay people, you're as wrong as the people who fought to keep "White Only" or "No Colored Allowed" signs in their business windows.
Some disappointed state Rep. Bob Ballinger of Hindsville didn't get his draft of the Religious Freedom Restoration Act signed into law are hung up on giving butchers, bakers and candlestick makers an ability to deny service to people based on a conviction -- whether faith-based or not -- that homosexual "lifestyles" are wrong.
I'm going to defend what the federal government and several states have done in adopting other versions of the Religious Freedom Restoration Act, but in 2015, that's a dangerous stance. Gay rights advocates such as the Human Rights Campaign are quite good at overwhelmingly strong public relations. Once they label proposed legislation or someone's remarks as "hate," it's virtually impossible to have a middle-ground conversation. But just because they're on the self-described side of "love" doesn't always make them right about what public policy ought to be.
Ballinger should have allowed his bill to be amended with a clear statement that it did not legalize discrimination. It's hard to believe discrimination was not his intent once he rejected such a change.
Despite opponents' public relations victory specifically with regard to House Bill 1228, Gov. Asa Hutchinson saw value in protecting religious freedom as much as he realized the state needed to embrace diversity. Were his reasons humanitarian or economic? Only he can tell. But at the least he was able to eliminate the more odious portions of Ballinger's effort while giving people of faith in Arkansas what people of faith in other states and within federal government already have -- stronger mechanisms for defending themselves from government action that infringes on their religious beliefs.
There is nothing wrong with expecting the government, when taking action that infringes on someone's religious practices, to defend those actions in court. And if a lawsuit happens, there's nothing wrong with expecting a judge to fairly consider religious concerns and evaluate whether the action is the least restrictive path to achieving government's goal. The way to ensure judges do that is to pass a law setting that standard.
In short, government should not have all the power.
That's what President Bill Clinton recognized in 1993, when he signed the federal version of the act, which passed the U.S. Senate 97-3 and on a voice vote in the U.S. House. In a Fortune article last week, writer Claire Zillman detailed how Vice President Al Gore at the signing listed a series of horror stories of government infringement on religion.
"You know when you have the National Association of Evangelicals and the American Civil Liberties Union; the National Islamic Prison Association and B'nai B'rith; the Traditional Values Coalition and People for The American Way; we're doing something right here today," Gore said at the time.
Clinton at the time said the nation "can never be too vigilant" to ensure government is "held to a very high level of proof before it interferes with someone's free exercise of religion." In 1997, a federal court ruling limited the federal act to the federal government, so states started adopting their own versions of the law.
The ACLU has gotten mushy on the act since. Why? Rita Sklar, executive director of the Arkansas branch, last week told a House committee the organization is now concerned the laws favor religious liberty too much over civil rights. I guess Clinton was wrong about being too vigilant.
Or maybe intentions are all that matter. The organization believed Clinton and then-Rep. Chuck Schumer, the federal law's sponsor, had good intentions. The same law pushed today by Republicans must be driven by darker intentions, right?
I'm not saying Ballinger & Co.'s intentions were pure. I'm just suggesting religious freedom deserves protection, and doing it doesn't have to promote discrimination.
Opponents of Arkansas' Religious Freedom Restoration Act late last week pivoted to the primary goal of this clash, noting that nothing about Hutchinson's forced revisions really fixes the problem. What will, they say, is a specific law creating protection for gays and lesbians as a class in Arkansas.
Rather than trying to make villains out of Arkansans' interested in protecting faiths of all kinds from unnecessary government intrusion, maybe this is worth pondering: In the 139 years before 2013 that Democrats controlled both houses of the Arkansas General Assembly -- and most gubernatorial terms of office -- why didn't they put in place the protections for the gay community they now say are so critically needed?
Greg Harton is editorial page editor for the Northwest Arkansas Democrat-Gazette. Contact him by email at [email protected] or on Twitter @NWAGreg.
Commentary on 04/06/2015