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The Battle Over Religious Freedom Restoration Acts in IN and AR

By Christopher Coble, Esq. on April 01, 2015 1:01 PM

Both Indiana and now Arkansas are the center of a nationwide debate about Religious Freedom Restoration Acts (RFRAs). Critics of the recently passed legislation say the laws will allow businesses to refuse service to gay, lesbian, and transgender customers under the protection of religious freedom.

Indiana's Gov. Mike Pence signed that state's RFRA into law last week, and the Arkansas State House passed their own version yesterday. With all of the controversy surrounding the laws, let's take a look at the actual text of each, and see how they compare to each other, and federal religious freedom legislation.

Religious Freedom Restoration: Context

Some 21 states now have religious freedom laws, most of which are based on the federal Religious Freedom Restoration Act of 1993. The federal law was passed in response to states denying unemployment benefits to people who used peyote during a religious ceremony, but was determined to be an unconstitutional exercise of Congress's enforcement power over states and so only applies to federal government action.

Therefore, states began passing their on religious freedom laws, barring state governments from substantially burdening an individual or religious group's free exercise of religion. Most of the states that have passed RFRAs also have laws prohibiting discrimination based on sexual orientation or gender identity; Indiana and Arkansas do not.

Religious Freedom Restoration: Text

The firestorm surrounding both Indiana's and Arkansas's RFRAs centers around whether citizens and businesses could use the law to legally refuse to serve LGBT customers. Both bills are nearly identical, and the most relevant parts are Section 9 of the Indiana bill and Section 16-123-407(a) of the Arkansas bill.

Both sections apply the act to claims of substantial burdens regardless of whether a state or other governmental entity is involved. While all other RFRAs only apply to disputes between a person and the government, Indiana's and Arkansas's bills could allow other people and corporations to legally discriminate.

Gov. Pence has backpedaled from the bill he signed, saying that the media misconstrued the bill and that legalized discrimination was not the bill's intent, while also asking the state's lawmakers to draft clarifications. And Arkansas Gov. Asa Hutchinson is now rejecting that state's bill, after saying last week that he would sign it.

You can see the full text of both bills (as they currently stand) below, and decide for yourself.

Indiana Senate Bill 101: Religious Freedom Restoration by FindLaw

Arkansas House Bill 1228: Religious Freedom Restoration by FindLaw



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