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Religious freedom amendment to go to public vote

by Rachel Herzog | April 28, 2021 at 7:17 a.m.
FILE — The state Capitol is shown in this file photo.

An amendment to the Arkansas Constitution that would prohibit the government from burdening an individual's religious liberty will be referred to voters for their approval or rejection in 2022.

The House's approval of Senate Joint Resolution 14 by Sen. Jason Rapert, R-Conway, makes it the third and final proposed amendment that the 93rd General Assembly has decided to put before the people next year.

The House passed the measure in a 75-19 vote. It earlier cleared the Senate in a 27-4 vote. Amendments proposed by the Legislature must be approved by both chambers, but the governor does not have a role.

SJR14 would bar the government from burdening a person's freedom of religion unless the government can demonstrate that doing so furthers a compelling government interest and is the least restrictive means of furthering that interest.

The state adopted the Arkansas Religious Freedom Restoration Act in 2015, which states that any governmental action that is a substantial burden to an individual's free exercise of religion can only stand if it furthers a compelling governmental interest in the least restrictive manner possible. Twenty-one states have a similar law.

House sponsor Rep. Jimmy Gazaway, R-Paragould, said a future state Legislature could repeal that measure.

"You really have to think about, what is this state going to look like in 30, 40, 50 years? What are our courts going to look like in 30, 40, 50 years?" Gazaway said. "If we allow the people to put it in the constitution it's going to be here."

Supporters of referring the measure to voters in 2022 also say now is the time for the Legislature to set a stronger protection, amid churches that closed when the covid-19 pandemic hit last year and fears that a new executive branch could infringe on people's religious freedom.

Lawmakers who voted against the measure in committee said it was either redundant of the current state law or that it waters down the existing protection and wouldn't hold up if challenged under the First Amendment.

SJR14 is modeled after a constitutional amendment that Alabama adopted more than a decade ago. The proposed amendment differs from state code in that it doesn't specify that the burden would have to be substantial, which House sponsor Jimmy Gazaway, R-Paragould, said makes it a stronger protection.

Rep. Josh Miller, R-Heber Springs, joined 18 House Democrats in voting against the bill. Miller said SJR14 is repetitive and only serves in attracting attention, and it could have unanticipated repercussions.

"There are folks who would say that if it passes, it could open the door for situations like for a mosque to go buy some property next to a Baptist day care and blare their sirens and their Muslim sayings all day long," Miller said.

Rep. Mary Bentley, R-Perryville, spoke in support of the proposed amendment, saying it was stronger than the Arkansas Religious Freedom Restoration Act.

"We have executive branches come and executive branches go, and I don't want an executive branch that changes our law," she said. "Governors have really done things to infringe on people's religious freedoms, and I don't want that to happen in the future."

In a written statement Monday, the American Civil Liberties Union of Arkansas called SJR14 one of the most extreme measures in the nation and said it could subject Arkansans to discrimination.

"The unintended consequences of this measure would be severe and far-reaching, giving people a basis to challenge and exempt themselves from virtually any state law," Holly Dickson, executive director of the ACLU of Arkansas, said.

Rep. Ken Ferguson, D-Pine Bluff, voted present. Not voting were House Speaker Matthew Shepherd, R-El Dorado; and Reps. Mark Perry, D-Jacksonville; and Richard Womack, R-Arkadelphia. Democrats Fred Allen of Little Rock and Deborah Ferguson of West Memphis were absent Tuesday.

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