The Arkansas 'Mini-RFRA' is Bad Policy

Abstract

This article submits two main arguments. First, the passage of Arkansas’ state “mini-RFRA” necessitates an amendment to the Arkansas Civil Rights Act to provide prohibitions against discrimination on the basis of sexual orientation, gender identity, and gender expression. Second, the passage of mini-RFRAs is bad policy from both a state and national perspective. Statutes, court rulings, and anecdotal evidence all demonstrate the need for greater protections in the wake of the expansive state RFRA adoption. Mini-RFRAs add to a patchwork of robust religious freedom protection that collectively threatens to produce a new wave of separate-but-equal policy that subverts the civil rights of the LGBT community across the country. Many state RFRAs include provisions that extend far beyond its federal counterpart, increasing the likelihood of discrimination. Particularly troublesome for Arkansas is that except for one municipality in the entire state, the state RFRA faces no opposing anti-discrimination law. Seeing as the cards are stacked in favor of religious freedom, the only way to strike a proper balance, particularly in Arkansas, is to expressly prohibit discrimination on the bases of sexual orientation, gender identity, and gender expression.