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April 3, 2015 6

Arkansas’ and Indiana’s Fixes to “Religious Freedom” Laws are Illusory

Arkansas’ and Indiana’s pas­sage of dis­crim­i­na­tory “reli­gious free­dom” laws was met with national back­lash from civil rights groups, the busi­ness com­mu­nity, and oth­ers.  Under intense pub­lic pres­sure, both state leg­is­la­tures made “fixes” to these laws, which their respec­tive Gov­er­nors promptly signed.   But these revi­sions are illu­sory and do lit­tle to mit­i­gate the harms of these laws.

Nei­ther of the orig­i­nal Arkansas or Indi­ana mea­sures men­tioned sex­ual ori­en­ta­tion or dis­crim­i­na­tion. Under the guise of reli­gious free­dom, how­ever, both allowed busi­nesses and employ­ers to dis­crim­i­nate against the LGBT com­mu­nity, as well as against reli­gious and eth­nic minori­ties, by pro­vid­ing them with a vir­tu­ally insur­mount­able religious-based legal defense.Arkansas-StateSeal.svg

Pro­po­nents of these laws erro­neously claimed that they were mod­eled on the 1993 fed­eral Reli­gious Free­dom Restora­tion (“RFRA”).  That RFRA, which the Anti-Defamation League sup­ported, was much nar­rower and explic­itly designed to pro­tect indi­vid­u­als and faith-based insti­tu­tions’ reli­gious exer­cise from gov­ern­ment infringe­ment.   It was never meant to apply to for-profit enti­ties or pri­vate dis­putes, or to enable enti­ties to dis­crim­i­nate against indi­vid­u­als in the name of “reli­gious freedom.”

Indiana’s fix to its law pro­hibits busi­nesses from deny­ing ser­vices to cus­tomers based on sex­ual ori­en­ta­tion or gen­der iden­tity.  And Arkansas’ revi­sion now tracks the lan­guage of RFRA and states that it should be inter­preted con­sis­tent with the fed­eral law.  While these fixes may make good media sound bites, they are misleading.

The revised Indi­ana law does not pro­vide statewide civil rights pro­tec­tions for the LGBT com­mu­nity or pre­vent its use to harm oth­ers.  Because the state does not have an inclu­sive anti-discrimination statute, and because the vast major­ity of Indi­ana cities and towns lack local civil rights pro­tec­tions for the LGBT com­mu­nity, busi­nesses and employ­ers remain free to dis­crim­i­nate on the basis of sex­ual ori­en­ta­tion or gen­der iden­tity.   Even with this fix, the Indi­ana law still pro­vides a pow­er­ful religious-based defense to indi­vid­u­als and busi­nesses in civil and crim­i­nal actions, and infringes on the rights of oth­ers.  For exam­ple, a police offi­cer could refuse to pro­tect a casino, liquor store, phar­macy, butcher shop, lend­ing insti­tu­tion, or women’s health clinic.


The amended Arkansas law is per­haps more disin­gen­u­ous.  Although it is now con­sis­tent with RFRA, the U.S. Supreme Court’s deeply dis­turb­ing Hobby Lobby deci­sion expands RFRA’s pro­tec­tions to for-profit, closely held cor­po­ra­tions (rang­ing from small busi­nesses to nation­wide com­pa­nies like Hobby Lobby).  And a 1999 fed­eral U.S. Court of Appeals deci­sion applic­a­ble to Arkansas ruled that RFRA applies to pri­vate disputes.

So a fam­ily owned busi­ness, large or small, can invoke the new law’s pow­er­ful defense in vir­tu­ally any civil action, includ­ing claims of dis­crim­i­na­tion or wrong­ful denial of ser­vice, employ­ment or hous­ing.  Keep in mind, 96.6% of Arkansas’ employ­ers are small busi­nesses.  Trans­la­tion: the vast major­ity of Arkansas’ busi­nesses can use the law to deny ser­vices, employ­ment, and hous­ing to the LGBT com­mu­nity and other minori­ties.  Mak­ing mat­ters worse, Arkansas has no state-wide civil rights pro­tec­tions for the LGBT com­mu­nity, and it recently enacted another law bar­ring local gov­ern­ments from pro­vid­ing such pro­tec­tions for their residents.

To truly rem­edy the harm­ful effects of their so-called “reli­gious free­dom” laws, Arkansas and Indi­ana must enact statewide anti-discrimination pro­tec­tions for the LGBT com­mu­nity, insert addi­tional safe­guards against use of the laws to harm oth­ers, and limit their appli­ca­tion to indi­vid­u­als, reli­gious insti­tu­tions, and religiously-affiliated non-profits against gov­ern­ment action that sub­stan­tially bur­dens religion.

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October 8, 2014 0

Gun Range Owner’s Offensive Ban on Muslim Patrons is Unlawful


Jan Mor­gan

Cit­ing to pub­lic safety con­cerns stem­ming from the 9/11 attacks and a recent Okla­homa work­place behead­ing, Arkansas gun range owner Jan Mor­gan last week pub­licly declared her busi­ness a “Muslim-Free zone.”  Although this odi­ous and unlaw­ful dec­la­ra­tion has been removed from her Face­book page, a mes­sage on Morgan’s Twit­ter account states that the rule still stands.

In a dia­tribe jus­ti­fy­ing her deci­sion,  Mor­gan wrongly claims that Islam is not a reli­gion.   And there­fore, she erro­neously con­cludes that Mus­lims are not enti­tled to First Amend­ment guar­an­tees of reli­gious free­dom.  Mor­gan also falsely asserts that she has the option to bar Mus­lim patrons from her gun range.  But this ban bla­tantly vio­lates the Arkansas Civil Rights Act of 1993, which  pro­hibits  “… any estab­lish­ment, either licensed of unli­censed, that sup­plies … ser­vices to gen­eral pub­lic … “ from dis­crim­i­nat­ing against a per­son “… because of … religion.”

Later admit­ting that the anti-Muslim ban dis­re­gards the law,  Mor­gan nonethe­less declared  that she “will do what­ever is nec­es­sary to pro­vide a safe envi­ron­ment for my cus­tomers, even at the cost of the increased threats and legal prob­lems this deci­sion will likely pro­voke.”  Although she relies on the Sec­ond Amend­ment to remain in busi­ness, Mor­gan wants to ignore fed­eral and state Equal Pro­tec­tion Clause prin­ci­ples cod­i­fied in anti-discrimination laws.  Pick­ing and choose among legal pro­tec­tions is sim­ply not an option in our nation of laws, and Mor­gan would be wise to revoke her offen­sive ban against Mus­lim patrons.

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December 16, 2013 5

Fugitive Alabama White Supremacist Shoots Self As Police Close In

lindsey-scott-carterA fugi­tive and racist prison gang mem­ber from Alabama shot him­self in Arkansas after lead­ing police on a lengthy chase.  On Decem­ber 8, Arkansas state troop­ers pulled over a vehi­cle linked to Lind­sey Scott Carter, 44, wanted in Alabama on sus­pi­cion of mur­der.  The dri­ver, a female friend of Carter, fled the vehi­cle, but Carter took the wheel and drove away. 

After a chase that wound through two coun­ties in west­ern Arkansas, troop­ers used traf­fic spikes to bring the vehi­cle to a halt again.  As the offi­cers approached the car, how­ever, they dis­cov­ered Carter had appar­ently shot him­self to death rather than face capture.

Accord­ing to local author­i­ties, Carter, from Paint Rock, Alabama, had shot and killed a woman on Decem­ber 7 in what police believe was some sort of drug-related dis­pute.  Fol­low­ing the mur­der, a female friend of Carter (since arrested for hin­der­ing pros­e­cu­tion) allegedly pro­vided the vehi­cle that Carter used to flee with a sec­ond female friend.  Author­i­ties have not charged the sec­ond friend, the one who fled the vehi­cle in Arkansas, say­ing that she had not been aware of Carter’s crimes.

Carter had a pre­vi­ous crim­i­nal his­tory and was a mem­ber of the South­ern Broth­er­hood, Alabama’s largest white suprema­cist prison gang.  The South­ern Broth­er­hood, which has a lengthy record of vio­lence and crim­i­nal activ­ity, began in 1995 in the East­er­ling Cor­rec­tional Facil­ity and sub­se­quently spread to the rest of the state (it also has a pres­ence in sev­eral other states).  It also has a biker gang sub­group, the South­ern Broth­er­hood Motor­cy­cle Club.

After Carter’s sui­cide, other South­ern Broth­er­hood mem­bers passed the news of their fel­low gang member’s death.  One South­ern Broth­er­hood gang mem­ber posted to an on-line social net­work­ing web­site that “we lost a good Bro yesterday…Rest in Peace Scott Carter 14/23.”  The num­bers “14/23” con­sti­tute a South­ern Broth­er­hood numeric sym­bol that com­bines two con­cepts.  The num­ber 14 is a ref­er­ence to the so-called 14 Words, a pop­u­lar white suprema­cist slo­gan:  “We must secure the exis­tence of our peo­ple and a future for white chil­dren.”  The num­ber 23 stands for the “23 Pre­cepts,” a list of 23 rules that gang mem­bers are required to follow.

Sim­i­larly, another gang mem­ber posted that “We had a bro pass away yesterday…R.I.P. Scott Carter…14/23 19/2.”  The num­bers 19 and 2 are code for the South­ern Broth­er­hood, as S is the 19th let­ter of the alpha­bet and B the 2nd letter.

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