Why Arkansas governor reversed his stand on religious freedom bill

April 1, 2015 9:36 AM PT

Arkansas Gov. Asa Hutchinson on Tuesday had been expected to sign his state’s version of legislation billed as a religious freedom measure, despite complaints that it could lead to discrimination, especially against gays and lesbians.

But all of that changed by Wednesday morning amid a fusillade of opposition that included Wal-Mart, the state’s biggest employer, and even the governor’s own son.

The governor, who said he would not sign the bill and asked lawmakers to change it, acted with an eye on the furor that has rocked Indiana, where the governor and state lawmakers have been under sharp attack from business leaders and civil rights groups that say the state’s law allows businesses and others to deny services to gays and lesbians. The Indiana law has prompted a travel boycott backed by governors of three states and complaints from venerated sports groups including college basketball and automobile racing.

“This is a bill that in ordinary times would not be controversial,” Hutchinson said in a televised news conference, announcing his decision to not sign the measure. “But these are not ordinary times.”

Even the governor’s son, Seth, had signed a petition asking him to veto the bill, Hutchinson told reporters.

“The issue has become divisive because our nation remains split on how to balance the diversity of our culture...” with “firmly held religious convictions,” Hutchinson said. “It has divided families, and there is clearly a generational gap on this issue.”

Indiana, which is working on a legislative fix for its law that could come as soon as Thursday, is the 20th state to pass what are called restoration of religious freedom acts. They all differ in language from each other and from a 1993 federal version, which was signed by President Clinton.

“It has been my intention all along to have House Bill 1228 to mirror the federal act,” said Hutchinson, describing his state’s bill. “The bill that is on my desk at the present time does not ... mirror the federal law.”

“I asked that changes be made in the legislation. I’ve asked leaders in the General Assembly to recall the bill so that it mirrors the federal religious act.”

Hutchinson did not publicly explain what changes he wanted. He said the amendments could be made in the bill or the Legislature could pass a supplementary measure. The governor also said he would consider issuing an executive order.

Regardless of the vehicle for the changes and the exact wording, Hutchinson was clear that he wanted something that would ensure that the bill would not be interpreted as discriminatory.

Arkansas is “a state that does not discriminate and respects tolerance,” Hutchinson said.

“What is important from an Arkansas standpoint is one, we get the right balance and secondly, we make sure that we communicate we’re not going to be a state that fails to recognize the diversity of our workplace, our economy and our future,” Hutchinson said.

Making the state law comply with the spirit of the federal law will be a difficult, said John Pippa, a professor and former dean at the University of Arkansas at Little Rock law school.

The first reason is mechanical: The Arkansas Legislature is planning to adjourn in the next few days. “I just don’t see how it is possible in next 48 hours to make it happen,” he said of the changes sought by the governor.

Then there is the problem of the law itself, which Pippa said was overly broad. While Indiana and Arkansas measures are basically the same, both differ from the federal law and revising them to the spirit of the federal law could be a problem, he said.

For example, the most important difference is that the federal law requires that a government agency be a party to any lawsuit while the state versions are based on civil lawsuits between the parties. Neither Indiana nor Arkansas has an anti-discrimination law that includes sexual orientation, so there is no state agency to be party to any suit.

Indiana does have some cities with the needed anti-discrimination ordinance but Arkansas has none, Pippa said.

The governor’s appeal to economic issues was not accidental. Arkansas business leaders had previously announced their opposition to the bill, but that didn’t stop its passage.

Hutchinson has faced pressure from political and business interests in recent days to oppose the bill. Little Rock’s mayor, the city’s Chamber of Commerce and Arkansas-based data services company Acxiom all urged rejection.

On Tuesday, Wal-Mart, the powerful, family-controlled company based in Bentonville, Ark., from where it runs its worldwide empire, again weighed in to argue for inclusion.

“Every day, in our stores, we see firsthand the benefits diversity and inclusion have on our associates, customers and communities we serve,” Chief Executive Doug McMillon said in a statement posted on Twitter. “It all starts with our core basic belief of respect for the individual. Today’s passage of HB1228 threatens to undermine the spirit of inclusion present throughout the state of Arkansas and does not reflect the values we proudly uphold. For these reasons, we are asking Gov. Hutchinson to veto this legislation.”

Businesses have also been a leading player in opposing the Indiana case.

Apple Chief Executive Tim Cook has condemned the legislation in Indiana and elsewhere. Cook and other high-tech industry leaders argue that businesses should be inclusive and that the religion measures send the opposite message to companies and their consumers.

In recent years, such “religious freedom” laws have been taken up by conservatives who argue they are needed to protect individuals seeking to exercise religious freedoms. Among the cases cited by proponents are examples where a religious group in Texas was seeking to bypass state health codes so it could serve food to the homeless.

Supporters argue the laws do not discriminate when it comes to the delivery of services.

But critics have focused on the question of delivery of services. The usual examples used by critics involves bakers, florists or photographers who could choose to deny services to same-sex couples planning their weddings. There have been two high-profile cases of such denial of service, but both led state agencies to use anti-discrimination laws in Oregon and New Mexico respectively, to counteract that effort.

The idea of inclusion has also been raised by the sports industry.

In a statement released Tuesday, NASCAR said it was unhappy with the Indiana law.

“NASCAR is disappointed by the recent legislation passed in Indiana,” said Brett Jewkes, senior vice president and chief communications officer, in a statement. “We will not embrace nor participate in exclusion or intolerance. We are committed to diversity and inclusion within our sport and therefore will continue to welcome all competitors and fans at our events in the state of Indiana and anywhere else we race.”

The criticism from the racing industry, famed for the annual Indianapolis 500 automobile race, follows concern expressed by the National Collegiate Athletic Assn., which said it would look to see if Indiana’s law was a problem for future events. The NCAA will hold its basketball championships in Indianapolis this weekend.

The NCAA will hold its basketball championships in Indianapolis this weekend.