Columns » Jay Barth

A HB 1228 post-mortem



Despite a series of rousing speeches, the Human Rights Campaign's event on the steps of the state Capitol on March 31 had the feel of a visitation the evening before a funeral.

In a fractious session in the state House of Representatives a couple of hours before, the House had accepted a series of Senate amendments to the so-called "religious freedom" legislation, sending it to Gov. Asa Hutchinson's desk. Two mothers sadly reported that their straight young adult children were now fully prepared to leave Arkansas for good as a result. While some voiced hope for a "miracle," almost all at the rally anticipated that Hutchinson — despite some obvious ambivalence on the legislation over the weeks of the legislative session — would move forward with his most recent commitment to sign the bill. Indeed, despite the governor's awareness that the expansive religious freedom bill would cause a serious black eye for the state, those around him could not see a way out of the predicament into the late hours of Tuesday night because of the overwhelming legislative majorities supporting the bill. They girded themselves for Arkansas to face the barrage from national media and key business interests that Indiana had felt for days.

However, as many have now recounted, Hutchinson did find a way out of the predicament by compelling the legislature to quickly produce a state Religious Freedom Restoration Act that simply reiterates the language of the 1993 federal RFRA. While unnecessary at best, the amended bill — SB 975 — represented a sharply better result than the state-sanctioned discrimination green-lighted by HB 1228. Absent an executive order barring discrimination in state employment that Hutchinson stated he was "looking at ... [to] make it clear that Arkansas wants to be a place of tolerance," this was a small win on substantive grounds. But, for at least four reasons, it felt like a much more significant victory for equality in Arkansas.

First, it has remained befuddling that many remain oblivious to the fact that LGBT folks can be fired or denied access to housing or public accommodations — whether or not the basis of that discrimination is religious. (Even former Gov. Mike Beebe evidenced ignorance of that reality at his infamous appearance before the Stonewall Democrats in 2011.) The debate over HB 1228 (which, according to polling, broke through to the public like few state politics stories do) means that the number of folks who don't know this is smaller than a week ago. Passage of a law to add the "five words" to the state's civil rights law will likely only follow federal action on the issue, but the awareness of discrimination's legality changes the battle lines in more progressive Arkansas communities now being asked to act on the issue. (It is vitally important so that more Arkansas cities have standing in the coming court battle over the session's other major anti-LGBT rights measure, SB 202.) It also serves as a key reminder that once marriage equality comes to the nation (and Arkansas), likely in the coming months, considerably more work will be needed to ensure thorough equality.

Second, Arkansas is a place where sustained public engagement on public policy issues is quite rare. But that is what we saw on HB 1228 starting with a massive "emergency meeting" on the Sunday before the vote; numerous rallies and press events sponsored by the HRC, Stonewall Democrats and other organized and ad hoc groups in opposition to HB 1228 followed. During the Beebe era, legislation hostile to LGBT rights was fended off through an "inside" game (often led by former state Rep. Kathy Webb working with the governor's office). With the change in the composition of the elected bodies, activists were left to rely primarily on an "outside" strategy. And, the sustained engagement undoubtedly mattered in producing the shift away from HB 1228. (I have to go back to 2002 to find an analogous case: Gov. Mike Huckabee faced hundreds of protesters at the state Capitol and at a number of stops around the state after his initial announcement to eliminate the TEFRA program serving thousands of developmentally disabled children with extremely costly treatments to meet a state Medicaid funding crisis; Huckabee eventually reversed himself and shifted money from the state's tobacco settlement to save TEFRA services.) Last week was a reminder that people power can shift the political terrain.

Third, related to this public engagement, many who had worked hard over the years to avoid any public stance on LGBT rights — seeing any stance on the issue as certain to offend large numbers of Arkansans — felt compelled to take a side. Most important, of course, were business interests — both Arkansas-based megacorporations (like Walmart) as well as local business associations (like the Little Rock Regional Chamber of Commerce). But, mainline religious denominations and their clergy were front and center in the debate. I'm reminded of a different civil rights battle where business interests and religious groups were slow to take sides. It's vital to remember that business and religious leaders were essential partners with the Women's Emergency Committee in resolving the Little Rock School Crisis and reopening the city's schools in 1959. Once these potent interests took a side in that civil rights battle, there was no way to fully retreat; the same is true today.

Finally, while most of what happens today in politics is scripted, the resolution to HB 1228 was not. While not quite a "miracle," the resolution to HB 1228 was indeed unexpected. It is the unexpected victories — even when they are small advances — that feel the sweetest.

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