FAYETTEVILLE -- After a flurry of national media attention and jousting between the Arkansas Legislature and governor, Arkansas' Religious Freedom Restoration Act still allows discrimination against gay people, a national activist told students at the University of Arkansas School of Law.
Jay Michaelson, a columnist for The Daily Beast, said Gov. Asa Hutchinson's refusal to sign House Bill 1228 was a "very clever political move" that allowed discrimination against gay people to continue in the state.
Hutchinson said he wouldn't sign a bill that didn't mirror the federal Religious Freedom Restoration Act of 1993, so HB1228 was sent back to the Legislature and Senate Bill 975 -- which more closely resembles the federal law -- was passed instead. It is now Act 975 of 2015.
But the 1993 federal law doesn't mean today what it did in 1993, Michaelson told a crowd of about 25 students at the law school in Fayetteville on Wednesday.
"Even under the same language, corporations can do things they couldn't do five or 10 years ago," Michaelson said. "I think it was actually a very clever political move to say we're just going to use the same language, but the fact on the ground is it does allow any business to discriminate against someone based on a religious belief."
Michaelson cited the Hobby Lobby case in 2014, in which the U.S. Supreme Court, for the first time, ruled that a corporation's "religious freedom" could trump someone else's rights.
"Thanks to two decades of conservative judicial activism, culminating in the Hobby Lobby decision, 2015 is not 1993," Michaelson wrote in an April 1 column for The Daily Beast, a website covering news, politics and entertainment.
When asked about Michaelson's comments, J.R. Davis, a spokesman for the governor, said via email, "We're not going to comment on this."
On April 1, Hutchinson said state legislators needed to pass a bill that not only struck a balance between religious freedom and nondiscrimination but that also showed those outside the state what values rule in Arkansas.
"It was my intention -- because the federal law does not cover state causes of action -- that we have a similar law in the state of Arkansas," Hutchinson said at the time. "To do that, changes need to be made. The bill that is on my desk at the present time does not precisely mirror the federal law."
State Rep. Bob Ballinger, R-Hindsville, who sponsored HB1228, said it differed little from SB975.
"The reality is that there was a perception, something that was being placed on 1228 that didn't really belong there, the idea that there was a mechanism being implemented that would allow you to be mean to people in the LGBT community," Ballinger said. "With all the noise that went around, it became something that it really wasn't."
HB1228 would have prohibited laws or ordinances that "substantially burden a person's right to exercise of religion" unless doing so is necessary to "further a compelling state interest."
State restrictions would only be allowed if they were "the least restrictive means of furthering the compelling governmental relief."
But other language in the bill would have allowed "appropriate relief" in the form of damages and court costs, and would have allowed legal action between private entities, not just government regulations, an aspect that Hutchinson said he wanted removed all along.
Act 975 allows people who believe their religious rights have been violated to "obtain appropriate relief against a government." HB1228 lacked the limitations on who could face legal challenges.
Proponents of religious-freedom laws say businesses -- they usually cite florists, caterers, bakers, for-profit wedding chapels and photographers -- should be able to refuse to provide services on religious grounds to any gay couple planning a wedding.
But religious-freedom laws, which have been passed recently by legislatures in 21 states, could have serious consequences beyond the wedding industry, Michaelson said.
"Doctors have refused to treat the children of same-sex couples," he wrote in The Daily Beast. "Hospitals don't let partners visit one another. People have been fired simply for being gay. This is not just about Mom & Pop's Photo Shop."
Michaelson is the author of five books and more than 300 articles on religion, sexuality, law and contemplative practice, according to his website, jaymichaelson.net. He is also a columnist for The Forward newspaper, and he has been a gay-rights and Jewish-American activist for 15 years.
Among his books are God vs. Gay? The Religious Case for Equality and Redefining Religious Liberty: The Covert Campaign against Civil Rights.
According to his website, Michaelson is "a national voice of progressive Judaism and a teacher of Jewish and Buddhist meditation."
Michaelson has a doctorate in Jewish thought from The Hebrew University, a law degree from Yale Law School and a nondenominational rabbinic ordination. He has held visiting teaching positions at Brown University, Yale University, Harvard Divinity School and Boston University Law School.
Metro on 04/24/2015