On Nov. 8, referred Issue 3, known as "A Constitutional Amendment to Create the 'Arkansas Religious Freedom Amendment,'" will allow voters to consider religious freedom protection in Arkansas. The proposed amendment, however, entails more than meets the eye.
As listed in the proposal, one of the major reasons for its submission from the 2021 Arkansas General Assembly, and in particular from state Sen. Jason Rapert, is that the U.S. Supreme Court in 1990 "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion" (Section 2, Item 5 of the proposal, citing Employment Division v. Smith, 494 U.S. 872).
Contrary to the proposed amendment's interpretation of this case, a careful reading shows that the decision did not do what the above-cited Section 2, Item 5 claims it did.
Simply put, the question considered in this case was whether a state could deny unemployment benefits to workers fired for the religious use of illegal drugs. The U.S. Supreme Court said yes.
The specific issue was whether members of the Native American Church in Oregon, who sought unemployment benefits after being fired from their jobs with a private drug rehabilitation organization for ingesting sacramental peyote as part of a church ceremony, could be denied those benefits because peyote use was illegal under Oregon law.
In a 5-4 decision, the opinion written by the late Justice Antonin Scalia noted, "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate."
Without diving too deeply into the constitutional weeds of the decision, suffice it to say that Scalia addressed what is known as the "compelling government interest requirement" and observed that without it, "what it would produce here--a private right to ignore generally applicable laws--is a constitutional anomaly."
This requirement means that a governmental entity cannot arbitrarily prevent or punish religious activity and must show its action is essential in order to support whatever governmental interest is at issue.
Citing many previously decided cases, Scalia also observed that if exemptions to criminal laws could be made for religious purposes, such policy "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."
To be fair, the proposed amendment supports the existing "compelling government interest requirement" to justify imposing a burden on religious freedom, and it names every imaginable form of governmental entity having potential for burdening religious freedom.
But other than confirming what already is established legal precedent, this lengthy proposed amendment fails to define religion; in turn, such an omission might lead to requests for religious exemptions from all sorts of criminal laws, which is not something the amendment's authors may have considered. In fact, Scalia wrote, "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires."
Think of the doors that statement opens.
In Arkansas, in the name of religion, this might involve use of illegal drugs, use of animal sacrifices, racial discrimination or failure to comply with child labor laws, to name just a few possibilities.
Before voting on Issue 3, voters might consider whether it is necessary and whether passage might lead to unforeseen courtroom headaches as Arkansas governmental entities struggle to enforce it.
Bruce Plopper is a journalism professor emeritus in the University of Arkansas at Little Rock School of Mass Communication.