The exciting conclusion to Jazz’s post this morning. You can look at this three ways. One: Asa Hutchinson got cold feet after watching Mike Pence take a vicious media beating for signing Indiana’s RFRA. So he caved to the left, pure and simple, out of political cowardice. If the GOP won’t stand for religious liberty against pressure from gay-rights activists even in the very red state of Arkansas, this culture war is well and truly lost. Might as well repeal RFRA and let liberals shut down any business owner who resists conscription into a gay wedding ceremony.
Two: Hutchinson caved, but not to the left. He caved to Wal-Mart. The company is based in Arkansas, of course, and remains the state’s single largest private employer with more than 47,000 employees there as of 2013. When Wal-Mart’s CEO tells the governor of Arkansas to jump, the governor says, “How high?” Sure enough, Wal-Mart’s CEO told Hutchinson to jump on RFRA. He jumped.
Three: Hutchinson made a clever political move here, creating the illusion that he’s trying to water down the RFRA bill to make it more tolerable to gays when he’s really doing nothing of the sort. His demand to the legislature is that they strip out any language in Arkansas’s bill that isn’t also found in the federal RFRA law signed by Bill Clinton in 1993 so that the new bill is identical to that one. Gabe Malor knows what’s up.
Gov. Hutchinson made a smart move. Conforming the text to federal RFRA will likely get AR the same result as Indiana without the hysteria.
— Gabriel Malor (@gabrielmalor) April 1, 2015
The bill that was sent to Hutchinson’s desk this morning is very similar to the bill Mike Pence signed in Indiana (although not quite identical, as the last paragraph of this NYT piece makes clear). The Indiana bill signed by Pence is itself very similar to the federal RFRA law signed by Clinton. Lefties note two differences between Pence’s bill and Clinton’s bill, though, to justify insane hyperventilating over the former but not the latter. First, the Indiana bill explicitly allows some companies, not just individuals, to use RFRA as a defense in court. And second, the Indiana bill allows individuals to use RFRA as a defense not only when they’re being sued by the state but when they’re being sued civilly by other private individuals. Just one problem with all of that, though: Because of the way federal courts have interpreted Clinton’s bill over the last 20 years, the federal RFRA law also extends to companies (specifically, to closely-held corporations per SCOTUS’s Hobby Lobby decision) and also can be used as a defense to private lawsuits according to four different federal appellate courts — and Eric Holder’s DOJ. Essentially, Indiana’s RFRA differs from the federal RFRA only insofar as it formally codifies the rulings issued by federal judges about the latter. What Hutchinson’s doing, in other words, is making a largely cosmetic change to appease gays by stripping out the explicit language about corporations and private suits, knowing all the while that judges will simply read that language back into the statute when it ends up being challenged in court. I wonder if the left will go for it. If they do, this’ll be the model for all other Republican governors on RFRA bills going forward.