The RFRA Gauntlet: The Indiana RFRA May Be Bad, but the Arkansas RFRA Is Even Worse

The Indiana extreme Religious Freedom Restoration Act (“RFRA”) may have earned attacks from all quarters for its capacity to open the door to discrimination against the LGBTQ community in the economic marketplace, as I discuss here, but the Arkansas RFRA, entitled the “Conscience Protection Act,” is even more extreme. It is Hobby Lobby on steroids.

The Arkansas RFRA mirrors much of the Mississippi and Indiana RFRAs in that it opens the door to situations where shop owners, restaurants, hotels, and apartment owners can legally refuse to do business with customers based on sexual orientation (or any other characteristic). But the Arkansas RFRA has a special twist that empowers businesses over their employees as well.

The Arkansas RFRA really takes the prize when it grants employers and businesses RFRA rights to impose their beliefs and practices on employees and customers, but explicitly prohibits employees from invoking their beliefs against the employer: The Arkansas bill states that it does not “Create a right or cause of action with respect to an employee against an employer if the employer is not a government entity.” Talk about the transmogrification of religious liberty for purposes of serving the powerful and disabling the vulnerable!

This latest iteration is so far from where the federal RFRA began it is in fact unrelated. The original RFRA was overtly motivated by a drive to permit Native American Church members to obtain the right to use the illegal drug peyote during their services. While they actually obtained that right by asking for specific exemptions in every state where they reside, RFRA took off and has relentlessly expanded to the benefit of believers to the point that it is a special interest product extraordinaire.

Can the Indiana or Arkansas RFRA Be Fixed? Not Really

Facing economic isolation, some Indiana legislators are scurrying to amend their misbegotten RFRA with language that would prevent it from being applied in a discriminatory manner to LGBTQ individuals or in a manner that violates people’s civil rights generally. It’s a good idea, but it’s just the beginning.

Other members, who fundamentally get that a RFRA is nothing but a bundle of unintended negative consequences, are calling for its complete repeal. That is the wiser path.

But if Indiana cannot rid itself of its RFRA, it needs to be amended well beyond the potential for LGBTQ discrimination. For one thing, a statement that it is not intended to promote discrimination against the LGBTQ community leaves open the question whether that means it is intended to aid discrimination based on race or gender or national origin. By its terms, it applies to every law in the state, so singling out one potential for discrimination may be a backhanded way of opening the door to every other type. Therefore, to protect some civil rights against discrimination, it needs to protect all. That would be a double whammy for the lobbyists for the RFRAs, whose primary agendas are to oppose same-sex marriage and to restrict women’s access to contraception (not to mention abortion).

Arkansas has a more difficult path to insert civil rights into the statute, because its novel provision gives employers rights at the expense of employees. That provision would need to be removed and then a civil rights exemption added. Advice to Arkansas Governor Asa Hutchinson: There is Arizona’s former Gov. Jan Brewer who vetoed a less extreme RFRA than yours. And there is Indiana Gov. Mike Pence under economic and moral attack. Which one is feeling more comfortable today? I can tell you one thing: she would much rather do an interview with George Stephanopoulos.

Protecting Adults from Discrimination Is Critically Important; Protecting Children From Abuse, Sex Abuse, and Death Is, Too

The lesson Indiana’s lawmakers and governor have learned is that a RFRA is a ball of unintended consequences. They can cut out the anti-discrimination laws, but what about the other Indiana laws that serve the public interest that RFRA can and will hobble? Which of those laws are they willing to throw into the RFRA cauldron?

Take, for example, the laws that protect children. Why would Indiana—or any other state—want a law that gives parents, caretakers, and teachers more latitude to commit crimes against children?

Religious adults commit crimes against children. For example, there is religiously-motivated physical abuse. There is religiously-motivated sexual abuse and clergy sex abuse.

There is also deadly medical neglect. Indiana has a history of letting children die in religious settings. It was the home of Hobart Freeman and Faith Assembly, which was responsible for numerous preventable infant and child deaths. In a nurse’s words: “[D]iabetics are not taking their insulin and pregnant women are receiving no prenatal or post-natal care. ‘There is no silver nitrate to put in the babies’ eyes,’ she said. They are laying dead babies and live babies next to each other on the altars and praying over them to get the live babies to bring life back to the dead ones,” she continued. “There was one woman in our county praying over a baby for four days before the funeral home got hold of it.”

Statistically, Faith Assembly was a death sentence for many women and children: “death rates among Faith Assembly women in childbirth were 8,700% higher than those of Indiana women in general and that death rates among their infants were 270% higher than the statewide average.”

Indiana prosecutors dithered on the theory that Indiana’s medical neglect exemption for religious faith provided absolute immunity from prosecution for the death of children. That is, until there was a loud public outcry (early echoes of the current RFRA backlash) that prompted them to take up the cause of dead children against their religious parents. The Indiana RFRA can easily tip that balance and drive the current balance toward absolute immunity for the religious parents who let their children die of treatable ailments. And absolute immunity from legal responsibility for the deaths of children guarantees deaths.

A RFRA gives religious parents an added weapon to avoid liability and responsibility for the deaths or disability of their children from lack of medical treatment. Faith Assembly is just one religious sect that has let children slip away due to medical neglect. Other sects, like the Church of the Unborn and the Followers of Christ, are also dangerous to children and currently active in Oregon and Idaho. If the Indiana RFRA encompasses faith-healing parents, Indiana becomes more attractive to parents who “heal” by faith alone.

The “Least Restrictive Means” Slippery Slope Is the Real Problem that Makes RFRA So Dangerous

A RFRA says that the law cannot be applied to a believer unless it serves a “compelling interest” (which is easy to satisfy with the protection of children or anti-discrimination) in the “least restrictive means” possible for this believer. It is the “least restrictive means” test that puts the vulnerable at risk. Let’s walk through how religious parents who medically neglect their children will mount a defense under Indiana’s RFRA when their child dies, because they did not obtain antibiotics for pneumonia, or failed to get treatment for a bowel obstruction, or let their children suffer the horrible death of untreated diabetes.

There is always a “less” restrictive means of regulating to serve a compelling interest. When criminal charges are filed, the parent can argue that a financial penalty is “less restrictive” than jail time. Add to that argument that civil liability is “less restrictive” than criminal liability. When they whittle their responsibility down to civil liability, they can argue that a smaller damages award is less restrictive than a larger one and that an injunction not to do it in the future to their other children is even less restrictive. That is about as “least restrictive” as it gets, short of no penalty at all.

The bottom line is that every RFRA’s “least restrictive means” test provides unlimited scope for a judge’s imagination. The danger of RFRAs to children is not only that a religious parent could file and win such a case in court, but that RFRAs teach believers that they are not obligated to follow the law like everyone else. They are taught to believe that they deserve less restriction than anyone else—due to their faith. That way of thinking puts children at serious risk and turns believers into self-absorbed universes rather than responsible citizens who are warned against harming others.

If Indiana’s lawmakers are determined to keep their RFRA, despite the fact they have no way of knowing how it will be applied or to what laws, at the very least they should protect adults from discrimination and children from death. No RFRA should be permitted to cover crimes against children. Or women. Or men.