In or out of context

Timing and context are everything, and they place Arkansas in a most unfavorable, vulnerable and all-too-familiar light.

Our Legislature has been systematically defining us as a discrimination haven of unique proportion in the nation--more egregious even than Indiana, where at least Republican Gov. Mike Pence is frantically trying to do damage control and "clarify" somehow that the state is not intending to sanction discrimination against gays and lesbians.

As Pence fights a firestorm that threatens his state's economic development prospects, Gov. Asa Hutchinson confronts the same blaze here.

He was said at this writing near noon on Monday to be pondering some Indiana-styled clarification of his own.

So let's start with timing and context.

As a Washington Post item related over the weekend, the federal government and 19 states already have laws providing religious-conscience exemptions similar to what Indiana just enacted amid controversy and what Arkansas seems about to enact amid controversy.

The federal bill was sponsored in 1993 not by troglodytic types like our Bob Ballinger or Bart Hester or Jason Rapert, but by liberal Democratic senator Chuck Schumer of New York. The bill was signed by Your Boy Bill, as in Clinton.

The focus of the legislation--a context quite different from the context today--was to assure Native Americans the right to certain religious practices that had been threatened by court rulings.

In time that law, called the Religious Freedom Restoration Act, got declared inapplicable to the states. That left it applicable only to federal law exemptions.

Then several states, now up to 20 counting Indiana, copied or mildly adapted the legislation to enact their own state statutes.

These state laws--worded similarly to the federal law and to each other--provide that a person, and sometimes companies as well, may cite religious conscience to disobey a law so long as obedience would cause the person a "substantial" burden and as long as disobedience did not impair a compelling government need that government couldn't meet otherwise.

Along the way, Hobby Lobby brought suit under the federal statute seeking to be permitted to deny contraceptive coverage in its company health-insurance plan. Until then, the federal law's religious-conscience exemption had been only for persons, not companies.

And then, last week, Indiana passed such a law and Pence signed it. The timing and context were light years removed from concern for Native Americans. Pence ended up trying to clarify the new law with other legislation saying the religious objections could not infringe on civil rights of others.

The gay and lesbian movement, not so strong in 1993 but on fire now, decried the Indiana action, calling it an unconstitutional granting of a dubious right to profess religion to discriminate against gays.

Indiana officials said the bill's genesis actually was in Hobby Lobby sympathy.

Pence said neighboring Illinois had long had the same law and that a young state senator named Obama voted for it.

Actually, though, as the Chicago Tribune reported over the weekend, the Illinois religious-objection exemption is accompanied in state law by legalized gay marriage and an anti-discrimination law protecting gays. And anti-discrimination laws tend to supersede when in conflict with other laws.

In fact, several of the 20 states with religious-exemption laws contain local jurisdictions with anti-discrimination ordinances, which have arisen largely at the municipal level.

So now we have winnowed the discussion to the ever-peculiar case of Arkansas.

First, you'll recall, our Legislature got mad that Fayetteville would dare enact for a short time a city ordinance providing protections against discrimination for gays and lesbians and transgender persons.

So, you'll recall, our Legislature passed an odd pro-discrimination measure--a bill denying the right of any local jurisdiction in the state to seek by ordinance to protect gays and lesbians and transgender persons from discrimination.

And, you'll recall, the bill was so egregious that Hutchinson wouldn't sign it. He merely let it become law without his signature. He needed to protect his extreme-right flank and a veto would have been expeditiously overridden anyway.

So now comes Arkansas with this religious-conscience bill as a follow-up in a one-two punch, one transparently designed to provide, for example, that a baker may say no to a gay couple seeking a wedding cake on the basis that he doesn't like the idea of their marriage and doesn't want their sinful money.

Hutchinson said he had made a commitment to sign this second roundhouse in the old one-two.

The fluid question for the governor at noon Monday was whether a civil-rights protection amendment like Indiana's would work for the Arkansas bill as well, and whether to insert one.

At the moment, here is the situation: Alone among states, so far as I can determine, Arkansas says first that it will not allow its localities the latitude to protect gays from discrimination. Then, on top of that, it presumes affirmatively to protect people who want to discriminate against gays by citing religion.

Our timing and context are the worst.

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John Brummett's column appears regularly in the Arkansas Democrat-Gazette. Email him at jbrummett@arkansasonline.com. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.

Editorial on 03/31/2015

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