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What HB 1228 was really about

Before and after protests, it remains legal to discriminate against LGBT people in Arkansas.


BALLINGER: Despite his claims to the contrary, the potential discriminatory impact of HB 1228 was clear image
  • Brian Chilson
  • BALLINGER: Despite his claims to the contrary, the potential discriminatory impact of HB 1228 was clear.

Whether it was the crowds at the Capitol, the tweet from Walmart or the public crucifixion of Indiana Gov. Mike Pence, something in the end convinced Republican Gov. Asa Hutchinson that fighting for House Bill 1228 was a losing game.

He was right. By that point, national public opinion had declared Indiana's "religious protection" bill a license to discriminate against LGBT individuals, and HB 1228 was cut from the same cloth. Acxiom and Walmart were among Arkansas's business heavyweights calling for Hutchinson to issue a veto. Protests rallied by a group of Presbyterian ministers, the Human Rights Campaign and local organizations such as Arkansas Citizens First Congress filled the airwaves and the Internet. And so, at a press conference on Wednesday, April 1, Hutchinson asked the legislature to send him an eleventh-hour compromise bill to replace the glowing, rainbow-colored target that HB 1228 had become. The governor said he was even mulling the possibility of an executive order to prevent discrimination against LGBT state employees.

When asked by reporters why he'd changed his mind on HB 1228, Hutchinson said, "It was a learning process ... We heard from constituents and business leaders." Even though he'd stated publicly just a week before that he intended to sign the bill once it reached his desk — and even though the Democrat on the Senate Judiciary Committee who originally provided the crucial "yes" vote to advance HB 1228 said he did so because Hutchinson himself asked for it — the governor managed to emerge from the fray looking like a moderate.

Hutchinson said he wanted a bill that would more closely hew to the language of the federal Religious Freedom Restoration Act, or RFRA, upon which HB 1228 (and the Indiana law) was also based. It undoubtedly took some wrangling, but HB 1228 sponsor Rep. Bob Ballinger (R-Hindsville) and most other hard right legislators acceded to the governor's wishes. The General Assembly sent the governor a replacement, SB 975, on the final day of the 2015 legislative session. The House of Representatives then voted to recall HB 1228 from the governor's desk and Hutchinson signed SB 975 into law on Thursday, April 2.

When it comes to legalized discrimination against LGBT Arkansans, however, HB 1228 and SB 975 will have the same immediate effect: little to none. That's because such discriminatory actions are already perfectly legal. The Arkansas Civil Rights Act prohibits discrimination on the basis of race, religion, national origin, gender and disability, but not sexual orientation or gender identity (this is what is meant when people say that LGBT is not a "protected class"). So under existing Arkansas law, there is no doubt that a cake baker or photographer could refuse to participate in a wedding ceremony involving a gay couple. For that matter, there's no doubt that a worker could be fired expressly for being gay (unless the employer contractually grants protections to LGBT people, as many do). Or, that a person could be denied housing.

John DiPippa, dean emeritus at the University of Arkansas at Little Rock William H. Bowen School of Law, told the Times, "There's no law that protects LGBT people from discrimination in the state of Arkansas. Period. ... That's the irony. This bill isn't even needed to remedy situations that its supporters claim it's going to deal with."

Does this mean Ballinger and his allies were right when they said HB 1228 wasn't about discrimination? Not exactly. Social conservatives know that LGBT civil rights are on the horizon, even in Arkansas, and they want to establish solid legal defenses against their encroachment. Even if the Arkansas Supreme Court forever delays its ruling on the same-sex marriage case now before it, the U.S. Supreme Court will likely soon strike down state-level same-sex marriage bans entirely. When that happens, a state law that allows, say, county clerks to claim a religious objection to providing same-sex marriage certificates, would be a small but symbolically important win for social conservatives fighting in the trenches against equality.

But the main reason that Ballinger's claims that the bill wasn't supposed to be discriminatory rang so hollow was that HB 1228 was legislation meant to undergird another bill that passed the Arkansas General Assembly in February. Although it was approved with far less fuss, SB 202, sponsored by Sen. Bart Hester (R-Cave Springs), is actually worse than was HB 1228. It prohibits local governments from establishing ordinances that protect groups not already protected by state law — say, veterans, or the elderly, or LGBT people.

In Arkansas, the door to LGBT discrimination has always been wide open; SB 202 is, and HB 1228 was, merely a legal doorstop to make sure it stays that way. Last fall, the Fayetteville City Council passed a civil rights ordinance protecting LGBT citizens, which was then overturned by popular referendum after a monumental battle. SB 202 is a response to the Fayetteville ordinance and an attempt to preempt any other Arkansas cities that might get bright ideas about protecting LGBT people under law. Should SB 202 be struck down by a court, however, then the new state RFRA provides an additional layer of legal defense for social conservatives looking to avoid complying with local nondiscrimination ordinances.

All of this grants a strange, subjunctive quality to the whole debate, but it's about to become much more tangible. In advance of SB 202 going into effect in July, Eureka Springs passed a nondiscrimination ordinance, which will also face a referendum. And Little Rock and other cities will likely soon attempt to pass ordinances of their own. That means SB 202 should face a court challenge as soon as it becomes law.

HUTCHINSON: Pushed for an 11th-hour compromise after saying he would sign HB 1228 just days earlier image
  • Brian Chilson
  • HUTCHINSON: Pushed for an 11th-hour compromise after saying he would sign HB 1228 just days earlier.

Meanwhile, it looks as though the governor's talk last week of an executive order to protect state employees against discrimination has now evaporated. When the Times asked a Hutchinson spokesperson this week, he said the governor had "no plans on that right now." And then there's the compromise measure itself. In Indiana, Gov. Pence eventually quelled the outcry over his state's law by backpedaling hard: The revised Indiana bill explicitly says it may not be used as a legal defense for discrimination. However, the compromise law passed by the Arkansas legislature, SB 975, doesn't contain any such antidiscrimination language. It still could be used as a defense for discriminatory actions somewhere down the line.

Nonetheless, it's still not as bad as HB 1228. To understand the difference between the two bills requires some understanding of the purpose of RFRA in the first place. The federal RFRA was originally written in the early 1990s to allow an individual to challenge the applicability of, say, a drug law forbidding peyote use, if such a prohibition "substantially burdens" the practice of the individual's religion. Note that this doesn't mean everyone automatically has free license to use peyote — nor would HB 1228 have given carte blanche permission to assault gay Arkansans. A RFRA simply gives an additional legal weapon to be used in court: If the federal government tries to arrest you for possessing peyote, you can attempt to claim a RFRA defense. Other facts will be considered in court as well, of course. (For example, if you're a lifetime Baptist rather than an adherent of a shamanic Native American religion, a judge may find your RFRA defense unconvincing.)

The most striking difference between SB 975 and HB 1228 is under what circumstances that weapon could have been used. SB 975, like the federal RFRA, is worded such that it seems to apply only to a proceeding in which the government is a party. But HB 1228, like its cousin in Indiana, made it clear that the statute it created could be invoked as a defense in certain suits between two nongovernmental parties — such as a gay couple and a recalcitrant baker. Again, though, because Arkansas currently has no law that says the baker can't discriminate against a gay couple, it's all a thought experiment anyway.

In the short term, while the new state RFRA created by SB 975 won't allow exemptions from laws protecting LGBT people — those laws being mostly nonexistent in Arkansas — it will have at least one likely effect, according to DiPippa.

"It's certainly going to cost the state of Arkansas money in lawsuits," he said. "Every year, you'll now have people who claim that their religion prevents them from paying taxes. And every year, the Department of Finance and Administration will have to try to collect taxes from these people. ... The state would have to spend time and money defending an otherwise simple case. So it really does invite people to kind of create religious reasons for things when they didn't exist."

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