Religious Discrimination claim and pen on a table.
Arkansas voters are considering a constitutional amendment that would prohibit state and local governments from burdening a person’s ability to practice their religion unless there’s a compelling reason to do so. If there is a reason, officials must act in the least restrictive manner.
Lawmakers voted to refer Issue 3 to voters during the 2021 regular session. The Legislature may refer up to three constitutional amendments to the general election ballot. The legislation was sponsored by Rep. Jimmy Gazaway (R-Paragould) and Sen. Jason Rapert (R-Conway).
“I think there was recognition that given things that have happened around the country in other states, that there was a need to add some additional religious freedom protections to the [Arkansas] Constitution to be prepared in the event that some of the things that we’ve seen happen in other states start to happen in Arkansas,” Gazaway said.
Similar to Issue 1, lawmakers proposed Issue 3 as a result of events that occurred during the COVID-19 pandemic. Gazaway, an attorney, cited an instance in Nevada where indoor religious gatherings were limited to 50 people, while in-person restrictions for businesses like casinos were based on a percentage of a building’s fire-code capacity.
In July 2020, the U.S. Supreme Court rejected an emergency request by a Nevada church to hold services based on the same attendance limits as other businesses. In January 2021, the court rejected a request from the same church to hear oral arguments challenging the constitutionality of the state’s COVID-19 restrictions.
The Supreme Court historically has used the strict scrutiny test to analyze cases regarding religious freedom or any case where there’s an allegation that a fundamental right has been infringed, Gazaway said. Approving Issue 3 would write the strict scrutiny test into the Arkansas Constitution “with a few tweaks” that Gazaway said he thinks would provide more protection.
While there is precedent for the Supreme Court to use the strict scrutiny test, Gazaway said that doesn’t mean it always will. The court can reverse precedent, which it did in June with the Dobbs v. Jackson Women’s Health Organization decision that reversed 50 years of precedent established by Roe v. Wade, Gazaway said.
“For conservatives, that was something to celebrate, but the point is, a future court could reverse the precedent in how they’ve analyzed religious freedom cases historically to a standard that would be much easier to allow the government to infringe upon your rights,” he said.
Existing religious freedom
Democratic Party of Arkansas chair Grant Tennille said the amendment is “totally unnecessary” because religious protections are already provided to religious and nonreligious people in the First Amendment of the U.S. Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
– First Amendment, United States Constitution
The Arkansas Constitution also contains a freedom of religion provision in Article II, Section 24, which was approved by voters in 1874. The current religious protections provided in federal and state law are sufficient, Tennille said.
Tennille said freedom of religion has often been used as a shield in this country, and he’s worried the proposed amendment would allow people to weaponize that right.
“We’re changing it from a shield into a sword, which certain people want to be able to use to essentially beat up on folks they don’t like,” he said. “And I think we’re seeing quite a bit of that, and have over the last year, when it comes to the ongoing debates we’re having about transgendered children.”
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.
– Article II, Section 24, Arkansas Constitution
Arkansas was the first state to pass a law banning gender-affirming care for minors in 2021. The law is being challenged in court and a federal trial began in mid-October. The trial is in recess and will resume in late November.
In addition to the impact Issue 3 could have on the LGBTQ community, Tennille argued the amendment could result in people citing the Bible to defend things like spousal battery or child abuse. He also said it could lead to more litigation across the state, which would cost more money.
“The thing is a disaster and people ought to vote against it because it’s anti-freedom,” he said. “Anybody in Arkansas can worship any way they want to worship right this very minute and those that don’t want to worship, don’t have to worship, which seems to be the founders’ intent, and that’s why we all should be against this.”
If Arkansans reject Issue 3, the religious freedoms currently guaranteed within the U.S. Constitution and the Arkansas Constitution will remain. If Issue 3 is approved, it will take effect Nov. 9.
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