What Would HB 1228 Actually Do?

There has been a ton of media coverage regarding House Bill 1228.  The bill was approved overwhelmingly by both the Arkansas House and Senate, and sent to Governor Asa Hutchinson for his signature.  After quite a backlash from citizens, business, and the media over similar legislation in Indiana, Governor Hutchinson asked the legislature to recall the bill and to send him language that was identical to the federal Religious Freedom and Restoration Act ("RFRA").  It is unclear whether the legislature will recall the bill or take any action whatsoever to change the substance of the bill.  If they do not (and as of the time of this writing, it does not appear that the legislature is inclined to do anything), House Bill 1228 will become law without Governor Hutchinson's signature on April 6th. 

The big question is, what does this bill do and what will the effect be?  What are the differences between the federal statute and some other state statutes?  First, the big difference is that HB 1228 would apply to individuals and private corporations and disputes between two private entities.  The federal legislation and other state statutes focus on a government or state actor infringing on an individual's religious freedom.  HB 1228 would allow private individuals to claim as a defense to their actions that they took actions that were allegedly discriminatory against a gay or lesbian person due to their religious beliefs.  Why is this a little ironic?  Because sexual orientation is not a protected class in Arkansas.  There are currently no protections in favor of LGBT individuals.  

What the ultimate effect will likely be is an explosion of litigation (usually unsuccessfully, I predict) by many people where if they get sued or arrested or in a dispute with someone that any actions they took were based on their religious beliefs, and they are therefore allowed.  An example I have seen used often is someone claiming that he or she shouldn't have to pay taxes or abide by the speed limit because their religion does not recognize the laws of man.  

Two reasons this is going to be a complete mess:

First, defining what is and what is not a religion is not easy.  If someone has honestly held beliefs, who will make the ultimate determination as to whether or not those amount to a religion?  In addition, you would be fooling yourself to believe that this could only be applied to Christian beliefs.  It would seemingly apply to Muslims, Buddhists, pagans, satanists, and even those who worship doorknobs or Fred Flintstone.  Too many people get caught up in the bakery owner who does not want to bake a wedding cake for a gay couple's wedding.  What if the tables were turned and someone who practices another religion refused to do the same for a straight wedding?  The potential permutations are mind boggling.

Second, it's going to be expensive.  Imagine all the possible defenses to private causes of action that can be asserted.  It literally boggles the mind.  Even the most slam dunk, easily won cases would be gummed up and extra expense incurred defending what will often be ridiculous positions cloaked in religious beliefs.  It will likely add another layer of bureaucracy and expense and lead to a definite boom in litigation.  That seems to be the definition of big government.

Would this law change much in Arkansas from the way things currently are?  Yes, potentially.  Is it really needed?  No.  But is this piece of legislation worth all the fighting and stigma of "backwards little ol' Arkansas" that will inevitably happen if it passes?  Is it worth losing potential good paying jobs and business growth here if it passes?  Is it worth an inevitable loss in the arts and cultural activities by alienating people from out of state?  Lets think long and hard about this one and ask who this will really serve, if it is needed, and if it is worth it.