Arkansas' and Indiana’s passage of discriminatory “religious freedom” laws was met with national backlash from civil rights groups, the business community, and others. Under intense public pressure, both state legislatures made “fixes” to these laws, which their respective Governors promptly signed. But these revisions are illusory and do little to mitigate the harms of these laws.
Neither of the original Arkansas or Indiana measures mentioned sexual orientation or discrimination. Under the guise of religious freedom, however, both allowed businesses and employers to discriminate against the LGBT community, as well as against religious and ethnic minorities, by providing them with a virtually insurmountable religious-based legal defense.
Proponents of these laws erroneously claimed that they were modeled on the 1993 federal Religious Freedom Restoration (“RFRA”). That RFRA, which the Anti-Defamation League supported, was much narrower and explicitly designed to protect individuals and faith-based institutions’ religious exercise from government infringement. It was never meant to apply to for-profit entities or private disputes, or to enable entities to discriminate against individuals in the name of “religious freedom.”
Indiana’s fix to its law prohibits businesses from denying services to customers based on sexual orientation or gender identity. And Arkansas’ revision now tracks the language of RFRA and states that it should be interpreted consistent with the federal law. While these fixes may make good media sound bites, they are misleading.
The revised Indiana law does not provide statewide civil rights protections for the LGBT community or prevent its use to harm others. Because the state does not have an inclusive anti-discrimination statute, and because the vast majority of Indiana cities and towns lack local civil rights protections for the LGBT community, businesses and employers remain free to discriminate on the basis of sexual orientation or gender identity. Even with this fix, the Indiana law still provides a powerful religious-based defense to individuals and businesses in civil and criminal actions, and infringes on the rights of others. For example, a police officer could refuse to protect a casino, liquor store, pharmacy, butcher shop, lending institution, or women’s health clinic.
The amended Arkansas law is perhaps more disingenuous. Although it is now consistent with RFRA, the U.S. Supreme Court’s deeply disturbing Hobby Lobby decision expands RFRA’s protections to for-profit, closely held corporations (ranging from small businesses to nationwide companies like Hobby Lobby). And a 1999 federal U.S. Court of Appeals decision applicable to Arkansas ruled that RFRA applies to private disputes.
So a family owned business, large or small, can invoke the new law’s powerful defense in virtually any civil action, including claims of discrimination or wrongful denial of service, employment or housing. Keep in mind, 96.6% of Arkansas’ employers are small businesses. Translation: the vast majority of Arkansas’ businesses can use the law to deny services, employment, and housing to the LGBT community and other minorities. Making matters worse, Arkansas has no state-wide civil rights protections for the LGBT community, and it recently enacted another law barring local governments from providing such protections for their residents.
To truly remedy the harmful effects of their so-called “religious freedom” laws, Arkansas and Indiana must enact statewide anti-discrimination protections for the LGBT community, insert additional safeguards against use of the laws to harm others, and limit their application to individuals, religious institutions, and religiously-affiliated non-profits against government action that substantially burdens religion.