Pandemic limits bring on Issue 3

Religious freedom proposal stirs sides in state

Backers of proposed amendment say it further protects religion; opponents say it raises it above other fundamental rights

The Arkansas flag is shown in this file photo.

A proposed amendment to the state's constitution would prohibit the government from burdening an individual's religious liberty, but opponents of the effort say the Arkansas Religious Freedom amendment is a potential Pandora's box.

Issue 3 will go before voters in the Nov. 8 general election. Early voting begins Monday.

Proposed by Republican state Sen. Jason Rapert, R-Conway, the amendment would add language to Arkansas' Constitution that would prohibit government from burdening a person's freedom of religion unless the government can demonstrate it furthers a compelling government interest and is the least restrictive means of furthering that interest.

The amendment also adds language to the state's constitution that provides a legal claim in a court or other governmental proceedings for a person to seek relief against the government for imposing on the individual's religious freedom.

State senators and representatives voted in 2021 to place Issue 3 on the 2022 general election ballot. The state's constitution allows the Legislature to include up to three constitutional amendments on the general election ballot.

Supporters say the measure was inspired by governmental efforts to limit church gatherings in 2021 because of the covid-19 pandemic and by fears that a new executive branch could infringe upon people's religious freedoms.

Jerry Cox, executive director of the conservative Family Council Action Committee, said Issue 3 is necessary to prevent the "further erosion" of religious freedom but acknowledged that such efforts are not much of a threat currently in Arkansas.

"It is very simple," Cox said. "It protects everyone's freedom of religion equally."

Lawmakers who voted against the measure in committee said the proposed constitutional amendment was either redundant to current state law, or it waters down the existing protection and would not hold up if challenged under the First Amendment.

Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, said Issue 3 is another attempt to elevate religious liberty above all other fundamental rights and civil liberties.

"It's completely out of step with the balance [of] our fundamental rights as Arkansans and Americans," she said. "They are changing the standard under law. Established state and federal law states that there are restrictive actions on substantial burden under religious exercise. Under this proposed amendment, any burden under religious liberty is under suspect no matter how minor that burden."

[ISSUE 3: Read the ballot title for proposed constitutional amendment »]

Dickson said if passed the proposed amendment would tilt the scales to allow religious liberty to trump all other laws.

"It would give a new argument for exemption from every law or regulation we have: domestic abuse laws, child abuse laws, professional licensure, fire codes, consumer protections and job assignment requirements," she said. "There are so many instances where in every single instance Arkansans would have a new argument for why we don't have to comply with laws vis-a-vis the government."

The state adopted the Arkansas Religious Freedom Restoration Act in 2015. It states any governmental action that is a substantial burden to an individual's free exercise of religion can stand only if it furthers a compelling governmental interest in the least restrictive manner possible. Twenty-one states have a similar law.

Dickson said the 2015 act states that anything additional upsets the balance of rights that Americans have come to know and live under. She mentioned same-sex marriage and interracial marriage as issues that could be attacked under the proposed amendment.

"There is a fear it can drift into those areas," she said. "In fact, I think that is a lot of the intent behind this proposal. It's a feature, not a bug."

Cox said one reason for the proposed amendment is because religious freedom is under attack around the world. He cited a 2018 Pew Research study that showed religious persecution and harassment are on the rise, including in the United States.

"The Pew Research Study also found that the most harassed and persecuted religion in the world is Christianity, followed closely by the Muslim faith," he said. "So it's important for people to understand that this amendment protects everyone's freedom of religion equally in the state of Arkansas."

Cox also said it ensures the right of religious freedom for future generations.

"Freedom of religion and right to bear arms and all the other rights framed in our Constitution, they just weren't doing it for them and now. They were doing it for generations yet to come because they had the foresight to do that," he said. "We get the benefit from that. That is what we want to preserve here."

Cox said the proposed amendment also would put Arkansas' stance on religious freedom in writing.

"Arkansas has no specific protection for religious freedom anywhere in our constitution," he said. "We learned that through the recent abortion case, through the Dobbs decision, that what is in state law really matters. You can't always rely on federal law to point out what people's rights are."

"So Arkansas has very clear protections for the unborn in our constitution, where it says we will protect the rights of every unborn child, but we have no such amendment really with religious freedom. So it's prudent for us to state what we know is true in our constitution by clearly saying that the government cannot burden anyone's free exercise of religion in the state of Arkansas."

Cox said Issue 3 is modeled after an amendment in the Alabama constitution that was passed in 1998.

Dickson said the Eleventh Circuit Court of Appeals looked at Alabama's law and found it could potentially open the floodgates of litigation.

"Any burden under religious liberty incidental or insubstantial would be suffice to challenge laws," she said.

Dickson said people would understand how problematic the proposed amendment is if they realized it applies to all religious practices, not just Christianity.

"Whatever an individual believes and how they practice and worship, despite how vehemently you disagree with it, the amendment will apply here," she said.

Cox said the amendment is not meant to allow people to break the law under the guise of religious freedom.

"This will not allow them to do that because it says the government can burden your free exercise if they have a compelling reason to do so," he said.

Cox said voters should vote for Issue 3 because it protects the right to live their life based on their faith as long as they are not hurting anyone else.

"I maintain that freedom to live your life according to your faith and what you believe is at the heart of what it means to be an American," he said. "If we lack the freedom to be able to live out our faith and live out our hearts and what we sincerely believe ... we really have very little freedom from that point because most of our freedoms originate from that."

Dickson said people should vote against Issue 3 because it is a license for anarchy.

"We want the people of Arkansas to know this is a wolf in sheep's clothing," she said.