Religious objections law is factor in state judge’s case

LITTLE ROCK—Wendell Griffen spoke out against a religious objections measure critics called discriminatory when it was debated by the Arkansas Legislature two years ago. Facing an investigation and impeachment threats over his involvement in an anti-death penalty demonstration, the Pulaski County circuit judge is now relying on that same law as he fights for his job and an opportunity to again hear capital punishment cases.

A group of religious leaders defended Griffen on the steps of the state Capitol earlier this month against the criticism from lawmakers and the ethics investigation he’s faced since he lay on a cot outside of the governor’s mansion the same day he effectively blocked executions in the state. Griffen, who is also a Baptist pastor, says he was portraying Jesus as part of a Good Friday vigil with his church, but the scene evoked the image of an inmate awaiting lethal injection. The judge wore an antideath penalty button while surrounded by people holding signs objecting to the state’s execution plans.

Days later, the state Supreme Court lifted Griffen’s order prohibiting Arkansas from using a lethal injection drug a company said it didn’t intend to be used for executions and disqualified the judge from hearing any cases involving the death penalty. The Judicial Discipline and Disability Commission is now investigating Griffen, as well as the judge’s complaint against the court. Griffen argued the court’s decision to disqualify him from death penalty cases was a violation of the state’s religious objections law.

“Unless I’m mistaken, it’s not illegal to pray. And unless I’m mistaken, it’s not illegal to pray silently,” Griffen told reporters. “If that is not fundamentally true, then none of us is free.”

Griffen invoking the state’s Religious Freedom Restoration Act adds a new wrinkle to what is shaping up to be a politically charged fight over judges’ First Amendment rights and the relationship between the judicial and legislative branches. It also puts a new spotlight on the law that dominated the final days of the legislative session two years ago.

The measure, which prohibits state and local government from infringing on someone’s religious beliefs without proving a compelling interest, was revamped at Gov. Asa Hutchinson’s request after facing widespread criticism from LGBT rights groups and Bentonville-based Walmart that it was discriminatory and would hurt Arkansas’ image. Griffen had appeared before a legislative panel to testify against the measure.

The sponsor of the law says he doesn’t think the judge’s actions would be protected by the measure. Republican Rep. Bob Ballinger said the two-prong test under the law is whether there’s a compelling government interest and whether the action was taken in the least restrictive way possible. Ballinger said he believes there’s a compelling government interest in this case and that the action taken—removing Griffen from death penalty cases—was the least restrictive.

“It would floor me if he was successful,” Ballinger said.

Griffen is using the law to challenge Republican lawmakers who have floated the possibility of his impeachment, saying his case represents the kind of religious freedom that conservatives said they were trying to protect. With Griffen raising the possibility of taking action under the religious objections law, the measure could be tested in a way that legislators didn’t envision when it was enacted.

“I will fight this as long as there is fire in my body and breath in my spirit,” Griffen said.