With election day right around the corner, the Baxter County Quorum Court has voiced its opinion on a proposed amendment to the Arkansas Constitution by the state legislature surrounding religious freedom in Arkansas.
There are currently four constitutional amendments on the ballot this year covering a wide range of topics such as recreational marijuana usage, religious freedoms, the ability for state legislators to call for a special session, and the percentage of voter approval needed for constitutional amendments to pass.
In a unanimous decision, the court found that the proposed amendment was poorly worded and could potentially grant the state more powers to shut down places of worship during declared emergencies.
It should be noted that a resolution is not an ordinance. It is the stated opinion of the Baxter County Quorum Court. It cannot stop or prevent the adoption of Arkansas Ballot Issue Number 3 if voters approve it in November.
“I believe that SFR 14 (Arkansas Religious Freedom Amendment) is another overreach by our government,” said Justice of the Peace Dennis Frank after his proposed resolution was read into the record. “It has the potential to curtail one of our basic unalienable rights, and the ballot title misrepresents what is actually in the body of the proposed amendment. Proponents of this issue promote that this amendment will hurt the ability of the government to close places of worship in the case of future pandemics, but it actually does the opposite.”
Dennis Frank argued that the Arkansas Constitution already protected the right to worship during his speech.
The topic of religious liberties can be found in Article II, Section 24 of the Arkansas State Constitution.
That subsection reads that “all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.”
Earlier this year, the Arkansas Senate and House of Representatives voted to place Issue 3, then known as SJR14, on the 2022 General Election Ballot. The Arkansas Constitution grants the legislature the right to include up to three constitutional amendments on the general election ballot. The fourth constitutional amendment is reserved for citizen-proposed amendments to the Arkansas Constitution.
SJR14 proposed to create the “Arkansas Religious Freedom Amendment” to “provide that government may never burden a person’s freedom of religion except in the rare circumstance that the government demonstrates that application of the burden to the person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling government interest.”
Supporters of the amendment state that courts and opinions change over time and that the state should use the strongest language to deal with the issue. They also argue that it would create a barrier to infringements on religious freedom at the local level.
On the other hand, opponents against the amendment argue that it is redundant and would place citizens in a weaker position were the issue to be challenged under the First Amendment.
Opponents also say that nothing in the amendment explains what remedies are available to the public should an individual or group adversely impact the rights and liberties of another individual or group.
It should be noted that the amendment provides no definition for what burdens are, nor does it define what a “compelling government interest” is.
“The section I find onerous reads, ‘to provide that government may never burden a person’s freedom of religion, except – except — in the rare circumstance that the government demonstrates that application of burden to the person is in furtherance of compelling government interests,'” Frank said. “This phrasing will allow the government to determine what is rare and what is of compelling interest to it and will give the government the ability to close the place of worship.”
In Arkansas, the issue of religious freedom hasn’t been put forth to voters since 1874, when voters approved Article II, Section 24 of the Arkansas Constitution.
In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) in response to a 1990 U.S. Supreme Court case over how to judge and determine the government’s burden on free exercise claims. The RFRA set out to prohibit federal, state, and local governments from substantially burdening a person’s exercise of religion.
The RFRA was found unconstitutional in 1997 by the Supreme Court, which argued that the bill exceeded Congress’ enforcement power as applied to state and local governments. The RFRA is still the law regarding the federal government’s impact on a person’s exercise of religion.
In 2015, Arkansas passed Act 975, which mirrors Congress’ RFRA bill. Arkansas is one of the 20 states to adopt bills mirroring the RFRA.
The full text of the amendment may be seen via the PDF below, with details of the movement of SJR14 through the Arkansas legislature may be found here.