The Arkansas General Assembly today gave final passage to HB 1228, the Arkansas Religious Freedom Restoration Act (full text) and sent it to Gov. Asa Hutchinson for his signature. The bill's passage comes as growing controversy surrounds a religious freedom bill that became law in Indiana last week. (See prior posting.) While a number of national media are describing the Arkansas law as similar to Indiana's (Huffington Post, Slate), a close examination of the Arkansas bill reveals that in a number of ways is is significantly broader than the Indiana law. Here are some examples:
The definitional section in the Arkansas bill defines a "person" protected by the Act as including a corporation. Arkansas, however, does not include the language in Indiana's law that limits coverage of business entities to those where the protected beliefs are held by individuals who have control and substantial ownership of the entity.
The Arkansas law requires that in order to justify a substantial burden, the state must show that it has a compelling interest "in this particular instance." That language does not appear in the Indiana law.
The Arkansas law defines "compelling governmental interest" to mean "a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion."
The Arkansas law permits a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, to assert the violation or impending violation as a "claim or defense" even when the state is not a party to the proceeding. The Indiana law only allows assertion of a RFRA violation against a private party as a "defense." That is, unlike Indiana, it appears that the Arkansas law would permit a plaintiff to recover damages against a private party for a violation of religious rights by the government. In that regard, the Arkansas bill provides that it does not create a right of action by an employee against a private employer. Unlike Indiana, it does not similarly exclude an action by an applicant for employment or a former employee.
According to the Arkansas Democrat-Gazette, Gov. Hutcheson has in the past repeatedly said he would sign the legislation. However some business and political leaders have called for Hutchinson to veto the bill.
