In 2015, state versions of the federal Religious Freedom Restoration Act (RFRA) were all the rage. RFRA prohibits the government from substantially burdening a person’s religious free exercise unless that burden is necessary to further a compelling government interest. That year, so many state legislatures considered adding RFRA laws that I created a dedicated page to track the progress of RFRA and RFRA-related bills just to keep up.
Since its passage in 1993, the federal RFRA has proven to be an effective tool for adjudicating religious accommodation claims; but by 2015 – as I wrote at the time – state RFRA proposals were “being amended by legislators and misrepresented by advocates to pursue goals the federal RFRA was never intended to achieve.” Arkansas Gov. Asa Hutchinson, for example, rejected an attempt by the legislature in 2015 to pass a state version of RFRA that strayed in important ways from the federal law. He eventually signed state RFRA legislation into law but only after it was changed to mirror its federal counterpart.
Now, 7 years later, by a slim margin of less than 1%, voters in Arkansas have rejected Issue 3, which would have added that same federal RFRA language to the state’s constitution. Opponents argued it was confusing and unnecessary. Proponents argued that even though the law is already on the state books, an extra layer of identical protection at the state constitutional level is necessary to prevent future repeal of the law. They also pointed to highly politicized disputes over public health restrictions on worship during the pandemic, vaccine mandates, and the possibility that wedding vendors could be required to provide services for same-sex weddings. Could the rejection of Issue 3 signal a public turning point against initiatives designed to pit religious freedom interests and nondiscrimination interests against one another?
In other election news from the midterms, Tennessee voters approved a referendum that would remove plainly unconstitutional language from the state constitution that bars ministers from serving in the legislature. The measure was approved 63%-37%.
In West Virginia, however, an effort to excise a provision from the state constitution that bars churches and religious organizations from incorporating *failed* by a vote of 55%-45%, despite being supported by both religious institutions and the ACLU of West Virginia. The measure also appears to be clearly unconstitutional – federal courts have ruled that denying the ability to incorporate on the basis of religious status violates the Free Exercise guarantee of the First Amendment. This measure would have brought West Virginia law in line with the U.S. Constitution on that point.