Hutchinson's announcement on HB 1228 is important, but it's no slam dunk for LGBT rights | Arkansas Blog

Wednesday, April 1, 2015

Hutchinson's announcement on HB 1228 is important, but it's no slam dunk for LGBT rights

Posted By on Wed, Apr 1, 2015 at 1:43 PM

click to enlarge ASA HUTCHINSON: With Senate President Pro Tem Jonathan Dismang. - BRIAN CHILSON
  • BRIAN CHILSON
  • ASA HUTCHINSON: With Senate President Pro Tem Jonathan Dismang.

This morning, Gov. Asa Hutchinson addressed the furor over HB 1228, the "religious protection" bill sitting on his desk that many fear would make it easier to legally discriminate against LGBT people in Arkansas.

Hutchinson asked the legislature to change HB 1228 — either by recalling the bill itself or by crafting additional legislation — so that it would more closely mirror the federal Religious Freedom Restoration Act, or RFRA, upon which the bill is based. The language of HB 1228 goes further than the federal RFRA (as well as most similar legislation passed in other states) in a couple of important ways, so if the legislature were to act upon Hutchinson's wishes and send him a more narrowly crafted alternative, that would be a significant victory. He also mentioned the possibility of an executive order "in terms of protecting against discrimination in the workplace for state government."

It sounds like the governor is talking here about prohibiting discrimination against state employees who are LGBT (although he was careful to avoid saying "LGBT" or "gay" or any other such permutation of what all of this is actually about) which would be quite a remarkable development.

But hold off on the celebration just yet. Hutchinson's announcement matters, but we should take a close look and what he did and did not actually say — and just as importantly, what he's actually capable of doing within his powers as governor.

First off, I think Hutchinson's explanation of HB 1228 is an honest one, for the most part. He said, "The bill itself does not pick winners and losers — it balances two competing constitutional obligations that our founding fathers gave to us."

That is true, and it's a hugely important point that still gets lost in much of the debate. HB 1228 does not "legalize discrimination" as such, in part because it's already legal to discriminate against LGBT people in Arkansas, just as it's legal to discriminate against many other classes of people on the basis of many characteristics. LGBT is not a protected class under the Arkansas civil rights act, and that's really the heart of the matter. 

But opponents of HB 1228 have always maintained that the real purpose of the bill was to allow discrimination, in large part because it explicitly allows the law to be invoked in litigation involving private parties, rather than just between a private party and the government. This is the crucial distinction between HB 1228 and the federal RFRA. The federal law allows an individual to challenge the applicability of, say, a drug law forbidding peyote use, in regards to him specifically, because the restriction "substantially burdens" his religious freedom. The federal law doesn't say anything about whether a gay couple's desire to have a wedding cake "substantially burdens" a squeamish baker, because that's a dispute between two private parties. Some folks have invoked the federal RFRA in such litigation, to mixed effect in the federal circuits. HB 1228 makes the rules clear: The baker can claim, in court, that her religion is being burdened. Doesn't mean a court will rule in her favor, but it's got to consider the question more carefully under 1228, and with a thumb on the scale in favor of religious protection. That's what HB 1228 does.

Hutchinson carefully threaded the needle today with an argument that HB 1228 can be fixed by making it more like the federal law — that is, by removing the part of HB 1228 that explicitly allows religious freedom to be invoked in disputes between private parties. There goes the thumb on the scale in favor of the baker, which was the whole point of the bill in the first place. I don't think conservatives will go for that, but I could be wrong. Also, note that Hutchinson never said in his press conference today that he would outright veto HB 1228. 

So here's one way this could play out. The governor has asked the legislature very nicely if they'll send him a less controversial version of HB 1228. Since it appears that Hutchinson's attempts yesterday to broker a compromise were rejected by conservative firebrands like Rep. Bob Ballinger (the sponsor of HB 1228) and Sen. Bart Hester, it doesn't seem extremely likely those legislators will now simply roll over and accept defeat. They may very nicely tell him, "No thank you, we like the bill we sent you in the first place." And then he'll be right back to where he started, which is whether or not to veto HB 1228. So, as he did with SB 202 — the "anti-anti discrimination" bill to prevent local ordinances protecting LGBT people — the governor could simply allow the bill to become law without his signature, a meaningless tsk-tsk to the legislature for not making the changes he asked for. And then he could institute the executive order that he mentioned today, which would both demonstrate his good faith effort to prevent discrimination and have a real, meaningful impact on LGBT equality.

Here's the thing: If, on the other hand, he does veto HB 1228, the legislature would probably overrule his veto, which it can do with a simple majority vote. I've thought all along that a big part of the reason Hutchinson ruled out a veto on HB 1228 (and on SB 202 before it) is that doing so would threaten to reveal potential political weaknesses within the GOP. It's genuinely unclear how much power the governor has with the right wing of the legislature, some of whom supported his right-wing rival Curtis Coleman in the 2014 gubernatorial primary.

Going into the 2015 session, everyone expected the GOP to fracture somewhat along a conservative/establishment fault line over the vote on reauthorizing the private option, just as it did in 2013 and 2014, but that debate was largely neutralized by some shrewd maneuvering from Hutchinson. This allowed Hutchinson and other establishment GOP leaders — such as Sen. President Pro Tem Jonathan Dismang — to paper over the very real divisions within their party.

But if the governor vetoes a piece of high profile legislation like HB 1228 and his own party immediately overrides him, what does that say about Hutchinson's sway within the legislature? What does it say about GOP unity? It merely enrages social conservatives, emboldens potential rivals from the right and makes it seem like legislators like Ballinger and Hester are the ones that ultimately call the shots within the party. Perhaps Hutchinson, and by association Arkansas, would score some points from some quarters for a good faith effort, but ultimately a veto may have embarrassingly little effect.

With his announcement today, Hutchinson has done pretty much the same thing as a veto, though without quite the symbolic heft that that word carries. Asking the legislature to make changes to the bill has the same practical effect: Either way, the legislature now takes another swing and either abides by the governor's wishes or kicks an unamended HB 1228 right back in his face. The difference is that it carries a little less political risk (although he's still going out on a limb somewhat by even asking, outside of the formal veto process).

Of course, one never knows. Maybe the legislature will follow Hutchinson's lead. Maybe Ballinger and Hester will back down and change language to make HB 1228 substantially the same as the federal RFRA. We shall see. 

Then there's the matter of the executive order, which is very important but should not be oversold. Let's be clear: Even if he wanted to, Hutchinson cannot wave a wand and make LGBT people a protected class under the Arkansas Constitution. He can't amend the state's civil rights act by fiat, any more than Barack Obama can change law by executive order.

What both Hutchinson and Obama can do, however, as executives of their respective governments, is to change how laws are implemented and how state agencies operate. Hutchinson could require that state government not discriminate against LGBT people in the workplace, which he said today would "make it clear that Arkansas wants to be a place of tolerance. We want to be a place that has the right balance between religious freedoms and nondiscrimination."

So what if HB 1228 were forced into law, in its current objectionable form, and Hutchinson delivers on a nondiscrimination ordinance for state employees? Whether that amounts to a win or a loss all depends on how HB 1228 actually plays out in the courts, which is unknown. Call me a sellout, but if some squeamish Benton County wedding photographers and florists are granted a freer hand in their quest to avoid gay people and in return we earn explicit protection for LGBT Arkansas state employees in the process, I'll take that deal.

But the worry has always been that HB 1228 could be used to justify much more that. Employment discrimination. Housing discrimination. That, as Max has put it, is really where the rubber meets the road with discrimination laws. Some critics of HB 1228 have come up with truly outlandish scenarios that a court would never uphold — no one can physically assault a gay person and claim RFRA allows them to do so — but there are miles of gray area created by a broadly written statute like HB 1228 that would have to be decided by the judiciary, case by case. If some bigot refuses to serve you a cheeseburger, that's hurtful and stupid, but so are a million other acts of idiocy that happen every day. However, if the courts decide that HB 1228 allows a boss to more easily fire someone for being gay, that's when we get into Jim Crow territory. And if that's where we end up, then no, an executive order for protection of LGBT state employees is not worth it. It's too soon to say if that's how courts would interpret the law, though.

P.S.: I deleted the above sentences after someone pointed out to me that bosses can and do fire people for their sexual orientation. It was inaccurate to say that HB 1228 would make it easier for a boss to fire someone for being gay — sorry about that. 

Again, we have to keep in mind that it's already legal for employers, landlords and bakers to discriminate against LGBT people (and many other groups — obese people, smokers, tall people, whatever) because they're not a protected class. The door is already wide open to discrimination; HB 1228 is merely the legal doorstop to make sure it stays that way. If SB 202 falls in court (as it very well might) and more Arkansas cities enact nondiscrimination ordinances that do include LGBT under their umbrella, HB 1228 becomes more important. Such a law is in the works in Little Rock.

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