Arkansas turns down religious freedom measure

Arkansas voters’ failure to adopt a relatively noncontroversial religious freedom measure in the midterm election caught supporters off guard. With 99 percent of ballots counted, the constitutional amendment to bolster religious liberty failed by fewer than 8,000 votes.

Issue 3, the Arkansas Religious Freedom Amendment, would have amended the state’s constitution to bar the government from burdening a person’s freedom of religion unless the state demonstrates the burden is necessary to further a compelling government interest. It also required the state to use the least restrictive means of furthering that interest. The amendment could have stopped even laws that do not target religion if they negatively affected religious practice—unless the government made the required showing.

That “compelling interest” language represents a remedy to a problem created by the Supreme Court in its 1990 ruling in Employment Division v. Smith. The court’s much-criticized decision changed religious freedom law by ruling that generally applicable laws not targeting specific religious practices do not violate the free exercise clause of the First Amendment. Smith made it considerably more difficult for religious individuals and organizations to argue that laws affecting religious practices were unconstitutional. The government was only required to show that the law treated everyone the same.

In 1993, the federal Religious Freedom Restoration Act (RFRA) passed both houses of Congress with near-unanimous support. RFRA restored federal law to where it had been prior to Smith, imposing a high burden on government to show a compelling reason why a law had to burden a religious practice and was the least restrictive means of doing so. Four years after the passage of RFRA, the Supreme Court ruled it did not apply to state laws. Since that time, Arkansas has joined 21 other states in enacting state laws modeled on RFRA, reports Ballotpedia. Arkansas passed its version in 2015.

Arkansas Family Policy President Jerry Cox said that the failed amendment would have increased the protection afforded by the state’s existing RFRA by enshrining it in the constitution. He pointed to voter confusion and lack of appreciation for threats to religious liberties as reasons why the measure failed. In a blog post, Cox wrote that “some conservatives—including a few of our friends—on social media have claimed that Issue 3 will give the government more power to restrict religious freedom.”

In a follow-up interview, Cox said that while the American Civil Liberties Union and atheist Freedom From Religion Foundation opposed the measure, there was virtually no organized opposition—no media blitz, billboards, or op-ed pieces. A handful of very conservative Christians took to social media to spread the idea that the amendment would restrict religious liberty, he concluded—exactly the opposite of what it would do. He attributed it to a religious community still smarting from COVID-19 lockdowns on churches and suspicious of the government.

“What people have right now they think is sufficient, but it’s sort of like driving around with an insurance policy that doesn’t cover everything you think it does,” Cox said. “A lot of people will never know that they need this extra protection for their religious liberty because they’ll never find themselves in a situation where the government is trying to burden it. But when they do, I think they’ll wish that they had this amendment.”

Cox indicated it may be a few years before the measure is reintroduced.