Gov. Hutchinson’s learning curve in his first 80 days has been both steep and gradual, but either way he has demonstrated a remarkable ability to finesse his way out of a mess, even one of his own creation. On the last day of the legislative session he executed a complete about-face and killed a bill permitting businesses to discriminate against sexual minorities that only four days earlier he had earnestly sought. Everyone seemed to cheer.
Both sides in the culture war may have cause to question his moral leadership on the nationally famous HB 1288, the “religion protection” act, and the rushed-up bill that scuttled it, but who cannot admire his skill in making surrender appear to be a triumph? It is the mark of a real politician.
The first evidence of the governor’s skill was his first act as governor back in January when he thwarted his party’s biggest initiative, which was to kill Arkansas’ participation in the biggest section of Obamacare, the expansion of Medicaid to poor adults. Republican lawmakers whooped through the governor’s plan to continue “private option” medical coverage for nearly 225,000 Arkansans, although many of the legislators had run on a pledge to kill it. Hutchinson’s plan was to allow the legislators to claim they were killing poor people’s insurance when actually they were continuing it.
Let us stipulate that the great battle over protecting people’s religious right to discriminate against gay, lesbian and transgender people, which generated so much terrible publicity for Arkansas, was much ado about very little, but symbolic wars are often the most passionate. After the U.S. Supreme Court signaled the end of state bans on same-sex unions in United States v. Windsor in 2013, federal and state courts across the country, including those in Arkansas, declared the bans unconstitutional. The Supreme Court is expected to officially consummate marriage equality across the land this summer. The religious-liberty legislation in Southern and Midwestern states is a symbolic last stand against what nearly everyone views as the inevitable.
Although the percentages have been shrinking, most people in these states believe sexual proclivities are a choice that people make, so homosexuality and same-sex unions are unnatural and wrong, even if they are constitutionally allowable under the equal-protection, due-process and full-faith-and-credit clauses. But if they can be treated as religious beliefs, then denying services, jobs or whatever to same-sex couples might be permissible under the First Amendment’s religious-liberty clause. So legislatures took up bills stating the claim of religious liberty in defense of a business’ refusal to do business with a gay couple or individual.
Same-sex marriage makes poor religious doctrine. The Bible doesn’t mention it. But the Bible became the South’s defense of slavery in the 19th Century, because it favorably mentions slavery and instructs slaves to obey and honor their owners. The same biblical instructions were our defense of segregation in the not-so-distant past, although everyone—well, nearly everyone—now recognizes the phoniness of the religious defense. The basis of the religious defense for discriminating against gays and lesbians is Leviticus 20:13, which says God wanted homosexuals to be murdered. But if that is a core of one’s religious beliefs, should you not also believe in killing disobedient children and the carnal sins of wearing clothing made of more than one fabric and eating shellfish or pork, which are God’s injunctions in the same book?
Rep. Bob Ballinger (R-Hindsville), like Republican counterparts in a number of states, introduced a bill, HB 1288, that offered businesses and officials a defense for refusing to serve gays and lesbians—it would violate a sacred foundation of their religious convictions. Another version of it, which prohibited local governments from passing laws protecting gays and lesbians against discrimination, had become law early in the session. Hutchinson let it become law without his signature.
The bills are a diluted version of the federal Religious Freedom Restoration Act, passed by Congress and signed into law by President Clinton in 1993 after two members of a native American tribe were punished for smoking psychedelic peyote, which is a part of the religious ritual of the Native American Church.
A bill almost like Ballinger’s caused consternation nationally when the Indiana legislature passed it and Gov. Mike Pence signed it into law. Business leaders in Indiana and nationally pleaded with the governor not to sign it because it sent the signal that Indiana businesses would discriminate against gays and lesbians and perhaps other minorities. Pence eventually backtracked and the legislature rushed through another act that repealed it, hewed closer to the language of the federal law and offered the promise that discrimination of that sort would not be permitted in Indiana.
In spite of Indiana’s and Pence’s torturous examples, Arkansas promptly repeated them. While liberal groups protested HB 1288 and urged Gov. Hutchinson to veto it, he worked to dislodge it from a committee where it had died. He summoned a Democratic legislator from Mississippi County and asked him to vote for the bill to get it out of the committee onto the Senate floor, where a majority was committed to vote for it. The governor’s nephew, although he personally opposed the bill, also voted it out of the committee as a favor to his uncle. Hutchinson said he would sign the bill if it was sent to him in that form. He opposed diluting it to protect gays and lesbians from discrimination.
But by the time it reached his desk, major Arkansas industries—notably Walmart and the tech giant Acxiom—had publicly denounced the bill as sending a message to the country that discrimination was encouraged in Arkansas. It would badly set back the state’s economic goals. Chambers of commerce weighed in against it.
Hutchinson quickly capitulated. He called a press conference, asked the legislature to recall the bill and send him one without the discriminatory language, something close to that of the federal act. He revealed that his own leftist son, a Texas union organizer, had signed a petition urging him to veto HB 1288. It was an adorable moment, a father yielding to the importuning of his prodigal son. Who could not love him after that?
Legal experts could see that if a businessman wanted to refuse service to a gay couple or a county clerk wanted to deny a marriage license to a couple, they might still make a case that they were good religious grounds for doing it under the new Religious Freedom Restoration Act. But it is not as transparently invidious as HB 1288, so everyone cheered the governor’s masterful handling of the problem.
