The Daily Banter

MEMBERS ONLY: The New Arkansas Religious Freedom Law is Actually Worse than the Indiana Law

Bob Cesca
Written by Bob Cesca

Pro-discrimination anti-gay Republicans, including Gov. Mike Pence (R-IN), continue to assert that the Indiana Religious Freedom Restoration Act (RFRA) is basically the same as all of the other RFRAs including the one then-State Senator Barack Obama as well as the federal RFRA signed by former President Bill Clinton. It's really not. Not at all. And there's another RFRA that's about to become law in Arkansas. We'll circle back to that.

The Indiana RFRA is insidious in a number of ways that sets it apart from the other RFRAs:

1) The Indiana law grants for-profit corporations personhood in terms of enjoying constitutionally protected religious liberty, not unlike the Supreme Court's ruling in Burwell v Hobby Lobby Stores. However, this RFRA goes further than Hobby Lobby, since the Supremes singled out religious exemptions for "closely held" corporations, while the RFRA expands those rights to corporations of any size. Therefore, a business of any size can using the RFRA to defend itself against lawsuits and so forth. The other existing RFRAs don't include this language.

2) The Indiana law also grants religious freedom to persons (this includes corporate persons) against lawsuits brought other persons. The First Amendment as well as the federal RFRA protects religious liberty against government actions, but the Indiana bill extends religious liberty to actions taken by other people. The unspoken other people in this case are clearly gay people. Put another way: the federal RFRA protects religious freedom unless a third party -- say, a gay person -- suffers a personal injury against his or her own human rights.

3) The Indiana law can be used by persons in the context of alleged trespasses against religious liberty -- in the future! Yes, that's right, offenses that haven't happened yet. The Washington Post's Phillip Bump compared it to the Tom Cruise movie Minority Report, in which law enforcement is tasked with apprehending criminals before they commit a crime. The Indiana RFRA protects religious persons if they are "likely to be substantially burdened" sometime later. Professor Katherine Franke of Columbia Law School said about this line in the statute, "That is an extremely radical idea, that you could bring a lawsuit on a conjecture of a future injury."

Mike Pence is either... CONTINUE READING