Wednesday, April 1, 2015

"Epic Fail" RFRA Update: Arkansas Purports To Rewrite 75 Years Of Federal Constitutional Law With A Pen Stroke -- Yes. Epic Fail.

UPDATED 04.01.15 @ Noon EDT | Sanity makes a comeback, in Arkansas, per the Gray Lady -- just now:

. . .Gov. Asa Hutchinson of Arkansas on Wednesday called on the state lawmakers to recall or amend legislation billed as a religious freedom measure to make it mirror a federal version passed in 1993.

Mr. Hutchinson, a Republican, said he understood how divided the state and the country was over same-sex marriage and religious freedom — his own son, Seth, had asked him to veto the bill, which critics say could allow individuals and businesses to discriminate against gay men and lesbians.

He said he was also considering using an executive order that would make “Arkansas a place of tolerance. . . .”

This is overdue -- but good news, just the same. Now -- where is the Indiana repeal/amendment?


I cannot sit silently here, any longer. Arkansas is preparing to sign into law a measure similar to Indiana's wrong headed, hateful nonsense -- but with yet another notable enlargement. [Background on the Indiana law here.]

Arkansas proposes to require, in addition to all the things the Indiana law purports to require, that if a business claims a religious reason for refusal of service, the state (or the person refused service) would have to show that the civil rights measure not only served a compelling state interest, by the least restrictive means, BUT ALSO that that civil rights measure is "essential" to the executive power of preserving ordered liberty, in Arkansas.

As is true with Indiana's law, this one will ultimately be struck down by the United States Supreme Court. For 75 years the federal Constitution has been read to prevent invidious discrimination based on immutable status -- not conduct. As I said Monday, these laws would purport to shift the burden to the person whose civil rights have been abridged -- to prove that the request for service was the least restrictive means of asserting a civil right, and furthered an essential, compelling police power interest inside the state. The federal Constitution countenances no such right on the part of the states, jointly or severally -- and it certainly doesn't allow people who hold their for profit businesses open to the public -- and accept all the benefits of the greatest capital markets on the planet -- along with all this freedom to transact, to then deny that same freedom to others.

Here is a bit of the latest, from a fine New York Times rundown, overnight:

. . . .Both states’ laws allow for larger corporations, if they are substantially owned by members with strong religious convictions, to claim that a ruling or mandate violates their religious faith, something reserved for individuals or family businesses in other versions of the law. Both allow religious parties to go to court to head off a “likely” state action that they fear will impinge on their beliefs, even if it has not yet happened.

The Arkansas act contains another difference in wording, several legal experts said, that could make it harder for the government to override a claim of religious exemption. The state, according to the Arkansas bill, must show that a law or requirement that someone is challenging is “essential” to the furtherance of a compelling governmental interest, a word that is absent from the federal law and those in other states, including Indiana. . . .

Insanity. And so, I will leave you with a video -- to describe the metaphor this current struggle most closely resembles:

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