Tuesday, February 16, 2016

Bob Ballinger's "religious freedom" stops Health Department regulation of soup kitchen: UPDATE

Posted By on Tue, Feb 16, 2016 at 11:06 AM

click to enlarge The Health Department agrees religious freedom act prevents it from regulating soup kitchens, like the Cup of Love ministry in Carroll County.
  • The Health Department agrees religious freedom act prevents it from regulating soup kitchens, like the Cup of Love ministry in Carroll County.

The D-G reports that A Cup of Love Ministry in Carroll County resumed serving food for the homeless after taking advantage of the Religious Freedom Restoration Act, the law pushed by Rep. Bob Ballinger in 2015. 

Critics of the RFRA law feared that it would be used to allow discrimination against LGBT people. The law's backers refused to include an anti-discrimination provision. 

It was also often pointed out that RFRA claims might be made in all sorts of other cases, such as drug use for religious purposes. RFRA laws in other states, for example, have been invoked to object to local zoning ordinances restricting the slaughtering of chickens for ritual sacrifice. 

A Cup of Love Ministry was closed for a week after the Department of Health shut it down for violating a state rule on food preparation. It resumed operation after the Department of Health was informed that the closure violated the RFRA law. It's not clear from the story whether the regulation in question is a good rule or not. But the incident gets to the trouble with the RFRA law — it's hard to believe that the relevant rules infringe on the ministry's religious beliefs. The religious freedom argument is being used to block regulations that they simply don't like. 

Ballinger told the D-G: "I think that the matter is resolved and taken care of now. It was a perfect example of government having too much regulation and not enough reason. For any government to try to shut down a person who's just trying to feed the homeless, it's pretty foolish. The Health Department was very willing to work with us."

Fair enough. But if the regulation was unnecessary, the regulation was unnecessary and should be changed. If the Health Department needs to show more flexibility, that's what it should do. That's a question of good governance, not religious freedom. The claim here — that the fact that the ministry is inspired to feed the homeless for religious reasons renders Health Department regulations moot — suggests that anyone claiming religious motivations is exempt from laws they find inconvenient. If the RFRA is going to be interpreted this broadly, how long before someone uses a claim to dodge legitimate laws or regulations? The state of Arkansas offers no protection against discrimination to gay people, but some municipalities have such laws in place. How long before someone claims that it's a matter of religious freedom to discriminate against gay people? 

UPDATE: Robert Brech, Arkansas Health Department counsel, said he was persuaded to allow the feeding program in Eureka Springs to continue unpermitted because of a federal ruling in Texas that said Dallas had to allow a similar feeding program because of Texas' RFRA law.

By extension, Brech said, churches that have had to maintain commercial kitchens for their meal programs will no longer have to get a permit. The rules require the kitchens meet certain health standards, such as appropriate temperatures for dishwashers and refrigerators, to keep people from getting food poisoning, and cost $35 a year.

What if you want to feed the hungry out of the goodness of your heart rather than a religious belief that it is your duty? You'd better get a permit. However, if you claim religious motivation, Brech said, there's no test the department could use to deny you, unless perhaps if you were selling the food.

The Health Department has waived the regulation before, Brech said. Some years back, two women making peanut butter and jelly sandwiches for the homeless in their home kitchens were stopped. But the Health Department "then backed off ... they were technically in violation, but common sense doesn’t hurt."

Potlucks are also exempted from the Health Department regulations on food preparation. However, if you prepare serve food to someone who then becomes ill, you can be sued.

Brech said the Health Department would have to develop a policy to let its employees know to apply the regulation consistently.

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