We spoke this morning about the potential impact of HB 1228 with John DiPippa, dean emeritus and distinguished professor of law and public policy at William H. Bowen School of Law in Little Rock. DiPippa joined the faculty in 1983 and became dean of the law school in 2009. He currently teaches constitutional law, interviewing and counseling, legal profession and public service law classes at Bowen.
Is Rep. Bob Ballinger right when he says that HB 1228 is identical to the federal RFRA and the RFRA laws passed in many other states?
No. No. On the first question, is it identical to the federal RFRA? No. It's significantly different. The biggest difference is that the federal RFRA, the government has to be a party in taking some action. The Arkansas bill doesn't require the government to be a party at all. All that it requires is that somebody is asking, because of some statute or regulation or government action.
So we're talking about individuals against individuals here, then?
Exactly. The only trigger there is that the individual has to be implementing a government statute or acting in order to comply with the law. That's all it takes. So it's considerably broader. And that's an understatement.
As you read the law, could I make up the Religion of David Koon and decide that God doesn't want me to abide by speed limit laws so I can drive 110 miles an hour on the freeway?
Yes and no. There's two parts to that. Could you make up a religion? Yes. The way the courts have looked at the question of religion and even the question of what's a substantial burden [on religion], they've tended to defer to the individual. Courts don't like to figure out what's a religion and what's not. So if you claim it's a religion, the courts are going to accept that. Now, could you break all the speed limits? Well, you could use this law as a defense, but you'd probably lose. The state would have a pretty good reason why everybody ought to be obeying the speed limits. But here's the problem: 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.
I heard somebody say during the debate that it's going to kind of pervert religion in that way – that it's going to invite people to use made-up religious reasons to discriminate.
Yes. I'm a religious believer. So it just seems to me that what this bill does is say to people: You can use your religion to really harm people, to really dehumanize people. To me, that's not what my religion is all about. So yeah, in that sense, I do think that it perverts religion. Even among people who may be well intentioned, I think it allows them to feel that their religion somehow exempts them from every other rule that the rest of us have to follow.
It's hard to make a call on this, but do you believe Rep. Bob Ballinger when he says that the aim of HB 1228 is all about preserving religious freedom, or is this a stealth maneuver to get legalized discrimination against LGBT people in this state?
I'll accept Rep. Ballinger at his word. I have no reason to doubt his motivation. I think he's wrong. He may really believe that, say, a business that refuses to provide service to a gay couple isn't discriminating. I just think he's wrong about that.
You've already talked a bit about this, but is HB 1228 going to cost the state of Arkansas money in the long run?
It's certainly going to cost the state of Arkansas money in lawsuits. 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. Even if we eventually collect the taxes, we're not netting as much as we used to.
I also heard from the Municipal League of Arkansas that one of the consequences of this law will be that cities, towns and counties will now have to scrutinize everything passed from the aspect of: How might this infringe on someone's religious beliefs?
That's exactly right. Every law, every regulation, every proclamation by the mayor. Everything. There's another really big difference between this bill and the way even federal RFRA is currently interpreted. [The Supreme Court's] Hobby Lobby [decision] expanded federal RFRA, but at least in the cases involving Hobby Lobby, they were closely held corporations. You can make an argument that a family run business might share a common religious value. But the Arkansas definition of who is covered by this bill doesn't limit it to closely held corporations. If the governor signs this bill and it goes into effect, Walmart suddenly has religious rights.
You're talking about corporate speech.
Right. So even at that level, it's much, much broader than the way current federal RFRA is applied.
Is it already legal for someone to refuse to do business with an LGBT person in this state, even without HB 1228?
See, that's the ironic thing. There's no law that protects LGBT people from discrimination in the state of Arkansas. Period. There are some old common law rules — rules for innkeepers, who are supposed to provide their services to anybody who comes by — but, again, that's an old rule that hasn't been used for years. It's not even clear if it would applies beyond the cases of innkeepers. Beyond that, there's no protection whatsoever. That's the irony. This bill isn't even needed to remedy situations that its supporters claim it's going to deal with. So, to me, the biggest immediate act in Arkansas is going to come on July 1, after the United States Supreme Court strikes down the last remaining Defense of Marriage Acts. Then you have a gay couple who goes to a county clerk's office to apply for a marriage license. This law would give the County Clerk the right to refuse to issue that license.
Inevitably, when people start debating this thing in public or online, somebody says: "That business owner built that business, so he or she should have the right to refuse service to gay people if they want." What's wrong with that argument?
There's a couple of things. If you take the corporate form, and you exist as a corporation, then the law is giving you certain benefits — tax benefits, liability benefits, all sorts of advantages to creating this separate person as your corporation. So if what you're claiming is, suddenly, for tax reasons, me and my corporation are different, but when we're serving a gay couple, we're the same, that seems hypocritical. The other reason is, that's no different from businesses during the segregation era saying, "We built our business, we should be free to just serve white people." The fact is, when you open a business, you open it to the public, unless you're running it out of your home for your friends and family. When you set up shop and you open it to the public, what you're implicitly saying to people is: "We're open to everybody! We'll take your money, come on in." When you then turn around and say, "I should have the right to deny service to people," it really runs against this whole notion that you are open to the public.
One of the big bogeymen for the Right is Sharia Law. Would this law allow someone who practices Sharia law to deny service to people or otherwise skirt the laws of Arkansas?
You can imagine a situation where a devout Muslim, who believes in Sharia law, and believes that women and men should be separate, might decide, "You know, when you come into my store, women should have to go to the left or stand outside, while men have to go to the right or come inside." That's certainly possible. Now, again: they may or may not win [in court], but what they'd be saying is, "Whatever law forces me to serve men and women, this gives me an exemption." Now, the Senate tried to deal with that, and they said that it's what they call a compelling reason for a person to say that they're complying with federal civil rights laws. Federal civil rights laws protect people based on discrimination in age, gender, race, disability, things like that. So I suppose you could say that in some situations it may not matter. But again, [HB 1228] would certainly would give a devout Muslim or a devout adherent of any religion the ability to challenge whatever rule they think if burdening their religion.
Other than just having the governor veto this law and having the legislature not override that veto, is it fixable?
Well, I think there is a fix. I do think there has to be a balance between religious liberty and civil rights or their general assurance. I'm not crazy about the bill, but I do think that the fix would have to be to include something that specifically says: "This bill does not allow people the right to deny service to other people on the basis of" – and then list the classifications, and specifically include LGBT. That's certainly what places like Walmart and Acxiom want.
A legislator who has been talking to the governor about all this sent us some language that he has proposed as a fix for HB 1228. It would add the following clause: that the law would not "establish a claim or defense by any person that this subchapter authorizes discrimination or otherwise makes it lawful to discriminate on the basis of race, religion, national origin, gender, pregnancy, the presence of any sensory, mental, or physical disability, age, for those 40 or older, sexual orientation, or gender identity." Would that do it?
I think that's an appropriate fix. I think it's a compromise between people who think any of these bills are wrong, and people who think that the current version is perfect. What that really does is say: This isn't a license to discriminate. This is a way to just make sure that a person who has a sincerely held religious belief doesn't get denied a public benefit because they're exercising their religion.
As it stands, is HB 1228 a license to discriminate in your opinion?
As it stands, I think it is.