BILL TO limit anti-discrimination ordinances heads to House floor.

Act leads to legal morass, panel told

A bill that supporters say will strengthen First Amendment freedom of religion rights is on the way to the state House floor after the House Judiciary Committee backed it Tuesday.

Known as the “Conscience Protection Act,” House Bill 1228, sponsored by Rep. Bob Ballinger, R-Hindsville, seeks to protect Arkansans from laws, ordinances or other government rules and policies that would “burden” an individual’s right to exercise religion. Measures burdening religious beliefs would only be allowed if the government possesses a “compelling” interest in the regulation and if the regulation is the least restrictive option.

The bill passed by voice vote despite opposition from attorneys who argued the statute was unnecessary and that it would lead to a variety of unforeseen legal problems. In addition, two religious leaders spoke in opposition, arguing that the legislation would enable Arkansans to discriminate against gays and others.

On Tuesday, Ballinger said 19 states and the federal government have passed

similar legislation.

“[H.B. 1228] gives us a tool to balance it out and make it where the individual, the citizen, has an ability to say ‘Hold on a second, this does infringe on my First Amendment rights,’ and so it gives them the ability to have that defense adjudicated,” Ballinger said. “What matters to me is there is an ability for someone to protect what they truly believe.”

Ballinger said the bill is a companion to Senate Bill 202, sponsored by Sen. Bart Hester, R-Cave Springs, which passed the Senate on Monday and would bar cities or counties from passing their own anti-discrimination laws.

Eureka Springs passed that type of ordinance this week, banning discrimination on the basis of sexuality.

Fayetteville’s City Council approved such an ordinance in August; voters there overturned it in December.

“That ordinance, would it really have hurt some people and their practice of religion? It would have done it,” Ballinger said. “Fayetteville proved there is some necessi- ty to do it. The reality is there are people who have deeply held religious beliefs that would have been required to perform some scenarios they think is inconsistent with that.”

A pair of Little Rock Presbyterian pastors, Frank LeBlanc and Marie Mainard O’Connell, testified against the bill.

“Discrimination is not holy, and I urge you not to take us back to times before 1964 where we empower prejudice in the name of religion,” LeBlanc told legislators.

After passage of the bill, Ballinger said his legislation was about getting Arkansans on par with the religious rights in other states but that he knew it faced opposition, particularly from the gay community.

“I understand [those concerns], and if I were in their shoes, I may feel that way. It’s easy if you’re a person or group that has been victimized to feel like you’re still being victimized, and that’s not what this is about,” Ballinger said. “[Government officials need to ask] ‘Am I infringing on someone’s religion when we do this?’ … The ordinance passing in Fayetteville told us we have got to figure it out.”

An attorney for the Arkansas Municipal League, Michael Mosely, said he thought the proposed law was unnecessary, given that there is already a federal religious freedom law, and that the Civil Rights Act of 1993 protects Arkansans on religious grounds as much as it does racial or ethnic grounds.

Mosely said the only real result of Ballinger’s bill would be an increase in lawsuits by those trying to skirt laws and ordinances under the guise of religious liberty.

“This is an increased burden on the courts, too. It will create more lawsuits. It’s the opposite of tort reform,” Mosely said. “In other states, people are not using this to protect religious freedoms, they’re using this to avoid reasonable laws … they’re using it to avoid zoning laws, people have tried to use this to say that marijuana is a sincerely held religious belief. … As written, we oppose it.”

Mark Whitmore, an attorney with the Arkansas Association of Counties, also opposed to bill, saying that the legislation could result in lengthy and expensive litigation for cities and counties.

“I’ll make you a promise: You give it about a year after this passes and you tell me how many lawsuits show up,” Whitmore said. “This is just going to happen. I’m sorry, but it will.”

Ballinger said that in the 19 states with similar protections, there haven’t been many people trying to game the system by claiming religious exemptions in court.

“If [a wave of lawsuits] exists at all, it’s nominal,” Ballinger said. “Most of the time it’s thrown out.”