WHY I WILL VOTE AGAINST ISSUE 3 - THE SO-CALLED ARKANSAS RELIGIOUS FREEDOM AMENDMENT

 

©Wendell Griffen, 2022

This election cycle Arkansans will vote on whether to amend the Arkansas Constitution when they cast votes on Arkansas Issue 3, the so-called Government Burden on Free Exercise of Religious Amendment. Issue 3 states:

An amendment to the Arkansas Constitution to create the "Arkansas Religious Freedom Amendment"; and to provide that government may never burden a person's freedom of religion except in the rare circumstance that the government demonstrates that application of the burden to the person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest.

Issue 3 was proposed by Senator Jason Rapert and Representative Jimmy Gazaway. It was referred to voters by the Arkansas legislature. Every Republican senator voted for it, along with one Democratic senator (Senator Larry Teague). Every Republican representative voted for it except Representative Josh Miller.

Here is why I will vote against it.

First, Issue 3 is unnecessary. Existing state and federal laws already protect religious freedom from governmental abuse. The First Amendment to the US Constitution protects religious liberty. The Arkansas Constitution protects religious liberty in Article 2, Section 24. There is a federal Religious Freedom Restoration Act (RFRA) as well as an Arkansas Religious Freedom Restoration Act (ArRFRA).

Second, Issue 3 is bad policy. The federal First Amendment, Arkansas Constitution, and federal and Arkansas RFRA statutes protect persons from governmental actions that pose a substantial burden on religious freedom without proof of a compelling governmental interest.

Issue 3 does not include the word “substantial.” That omission is a calculated, deliberate, and intentional scheme to prohibit governmental action that poses any burden on religious liberty – including burdens resulting from rules that generally apply to the public at large. The Arkansas Religious Freedom Amendment proposed as Issue 3 would even prohibit governmental actions to protect public health, safety, and prevent bigotry and discrimination.  

Issue 3 was referred to Arkansas voters by the Arkansas legislature after lobbying by the Arkansas Family Council (the Arkansas affiliate of the national Family Research Council) in response to public health mandates implemented in 2020 to protect people from Covid infection. Consider this history that can be found on Ballotpedia.

On March 11, 2020, Arkansas Governor Asa Hutchinson (R) declared a state of emergency due to the COVID-19 (coronavirus) pandemic. On March 26, 2020, Hutchinson issued executive order 20-10 prohibiting confined indoor and outdoor gatherings of 10 or more people, though the order did not apply to businesses, places of worship, or governing bodies. On April 4, 2020, Hutchinson issued executive order 20-13, which instructed businesses and places of worship to limit the number of people in a building so that a distance of 6 feet could be maintained between all occupants.

The Arkansas State Legislature passed House Bill 1211 during the 2021 legislative session. The bill prohibited the governor from limiting a religious organization from holding religious services during a disaster emergency. Under the bill, a governor can require religious organizations to comply with "neutral health, safety, or occupancy requirements" under state or federal law if such requirements apply to all other organizations and businesses, but provides that the governor cannot enforce health, safety, or occupancy requirements that "impose a substantial burden on a religious organization" unless the governor demonstrates that the requirements are essential to further a compelling governmental interest and are the least restrictive means of doing so. The bill allows religious organizations to file lawsuits against the governor seeking declaratory, injunctive, and/or compensatory relief from a court if they feel that the law has been violated.

The bill included an emergency clause, stating, "It is found and determined by the General Assembly of the State of Arkansas that the coronavirus 2019 (COVID-19) pandemic and response of the executive branch to the coronavirus 2019 (COVID-19) pandemic have highlighted the need to address the constitutional rights of the citizens of Arkansas, particularly the right to the free exercise of religion; that this act prohibits government interference with the free exercise of religion during a disaster emergency such as the current pandemic; and that this act is immediately necessary to ensure the protection of the constitutional rights of Arkansans to freely exercise religion." 

https://ballotpedia.org/Arkansas_Issue_3,_Government_Burden_of_Free_Exercise_of_Religion_Amendment_(2022)

The Ballotpedia summary is accurate. Although the emergency clause to House Bill 1211 mentioned “the coronavirus 2019 (COVID-19) pandemic and response of the executive branch to the coronavirus 2019 (COVID-19) pandemic,” none – not one – of the public health mandates issued by Governor Hutchinson at the outset of the Covid pandemic banned religious gatherings. No government regulation ordered that any religious gathering place be closed.  Instead, Executive Order 20-13 instructed businesses and places of worship to limit the number of people in a building so that occupants could maintain a six-foot space between one another to reduce the risk of coronavirus infection.   

Issue 3 is also a way bigots can claim religious freedom to attack and undermine public laws and private policies that prevent discrimination based on race, sex, sexual orientation, and gender identity.  In 2021, bills were introduced in Arkansas aimed at denying medical care to help parents and children who seek treatment for gender dysphoria. Bills were introduced to deny access to abortions to women who sought abortion services. Bills were introduced to prevent public schools and teachers from teaching about systemic injustice, including injustice based on race, sex, sexual orientation, and gender identity.  

I am a pastor and judge who is a strong activist for civil rights, including religious freedom. I oppose Issue 3 because I understand that public policies often limit (“burden”) personal behavior. 

Speed limits, building codes, traffic regulations, and licensing requirements for persons who engage in medical, legal, and commercial activities are limits on personal freedom. 

Laws against libel and slander limit speech. 

Laws against assault, battery, rape, arson, fraud, killing other people without justification, and abuse limit violence. 

I hold an attorney’s license. That required me to obtain a law degree, pass the bar examination, maintain continuing legal education to keep my knowledge of the law current, and refrain from using my legal skills to steal from or defraud others. 

None of us deserves a religious exemption from laws that protect others from harm. I wrote about this issue in my 2017 book, The Fierce Urgency of Prophetic Hope as follows.

“At minimum, one would expect pastors, religious educators, and denominational leaders to ponder aloud how support for creating religious exemptions to public laws created to eliminate and discourage discrimination and protect people vulnerable to suffer from it squared with the example of Jesus…[F]ailure to engage in that serious thought and discourse amounts to moral and ethical misfeasance, if not malpractice, on the part of evangelical followers of Jesus. In the same way, “good” white evangelical nationalists demonstrate a similar failure when they overlook and misunderstand the gospel mandate and remain derelict concerning racial inequality and racism…[M]ost white evangelicals staunchly defended slavery, racial segregation, and blatant race discrimination in education, employment, political activity, and public accommodations on religious grounds.” (see Chapter 11 titled “Religious Equality and the Gospel of Jesus,” p.127)

Devout people are not entitled to use religious devotion as a license for social anarchy, economic, and political bigotry, and discrimination. That is why I call Issue 3 the Arkansas Religious Anarchy and Bigotry Amendment.

Therefore, I will vote AGAINST Issue 3 and urge you to do likewise.