It is unusual for a state senator to explain that he is a coward.
Recently, state Sen. Jeremy Hutchinson applied that term to himself when explaining the recent brouhaha over the Religious Freedom Restoration Act (RFRA) to the Huffington Post. I spoke to Sen. Hutchinson to ask him why he called himself a coward — and why he thought the originally proposed RFRA (HB 1228) needed amending.
Sen. Hutchinson, chairman of the state Senate’s Judiciary Committee, voted for HB 1228 in committee but voted against it on the Senate floor. Then he was a key supporter of the revised RFRA legislation passed by the legislature.
During our conversation, Sen. Hutchinson stressed that he was the only Republican lawyer in the Arkansas Senate. I’m not a lawyer, but I’m married to one and have worked with lawyers in the past. The one thing that seems common to all of the lawyers I know is that they are very concerned about what might go wrong. As my wife has told me, a lawyer’s job is to be concerned about negative “what if” scenarios. That type of thinking seemed to be foremost in Sen. Hutchinson’s mind as he discussed HB 1228.
On his Facebook page, Sen. Hutchinson wrote, “After continued debate and prayer, I reached the conclusion that HB 1228 would allow (in very limited circumstances) discrimination to occur under the cloak of religious freedom.”
I asked him what type of discrimination could occur. He replied that he was speaking of very limited cases. “Both sides used the cake baker that didn’t want to serve gay weddings,” he said. “HB 1228 changed nothing as to this type of scenario.” Since Arkansas does not extend anti-discrimination protection based on sexual orientation, he’s absolutely right. So what kind of discrimination did he think this bill could allow?
“A private entity that receives state funds could have claimed under HB 1228 they should not be mandated to adhere to the requirement that they serve everyone,” he said. He also feared that because of the furor over the bill, some Arkansans would be “emboldened to discriminate” illegally. That is, the media’s inaccurate reporting would give some people the idea that they could discriminate however they wanted to, as long as they claimed it was motivated by religion. Given the sloppy reporting surrounding this bill, that scenario may not be far-fetched.
Sen. Hutchinson told me that his objection to the law went beyond discrimination, however. He was more concerned with how it would affect the state’s criminal law. Pointing to the formation of the Church of Cannabis in Indiana after the enactment of a RFRA law there, Sen. Hutchinson said he didn’t want to see a law that would “make crime difficult to prosecute.” But it seems pretty clear that even a liberal reading of RFRA won’t accidentally legalize marijuana. Sen. Hutchinson said that even if judges did not interpret the law to wreak havoc with the state’s drug laws, until cases could be adjudicated then “a lot of creative defense lawyers would have used it” as a defense.
The point about judicial interpretation was one that Sen. Hutchinson kept returning to. HB 1228’s text largely mirrored the federal RFRA statute, but there were some differences. That was the key to Sen. Hutchinson’s concerns.
“Provisions of the second bill follow federal RFRA with more certainty and case law on how it will be applied,” he said. “We put in the code that the legislative intent was that judges should interpret state RFRA the same as federal RFRA. The original RFRA had language that had never been tested before. It was uncertain how it would play out.”
Senator Hutchinson was candid about his conduct as the chairman of Judiciary Committee, where RFRA originated. He said that as he studied the HB 1228, his concerns about it grew. But because the law had been sitting in committee for so long, he didn’t think it was going anywhere. As a result, he says, “I did not do as thorough job as I should have in explaining it to my colleagues.”
In the interview with the Huffington Post, Sen. Hutchinson says he cast a “cowardly” vote in favor of the law to advance it out of committee. When I asked him about this remark, he said that he was not trying to characterize his colleagues’ votes as being cowardly, but only his own.
“My colleagues are not attorneys,” he told me. “I think all of us agree religious freedom should be protected. I, being an attorney, knew there would be other issues [with the law].”
Recently, I wrote a blog post calling for a decision on RFRA to be made based on substance, not symbolism. Talking with Sen. Hutchinson, he stressed a few times that HB 1228 “sent the wrong message,” which seems to indicate that symbolism played a large role in his decision.
Sen. Hutchinson also had substantive concerns. Not being a lawyer, I can’t speak authoritatively, but I don’t think HB 1228 would have caused the type of problems that Sen. Hutchinson raises. It’s still unclear to me how the revised language takes care of the problems Sen. Hutchinson imagined, especially any possible changes to criminal law — and although it’s a sign of a good lawyer to anticipate problems, this principle does not extend to someone who is worrying about pseudo-problems which cannot occur.
Upon further investigation, Sen. Hutchinson’s worries regarding discrimination and criminal law do not seem to be wel
l-grounded. I received information from a lawyer who was happy to be candid with me, but because of concerns about retaliation by Sen. Hutchinson, he did not to be identified on the record. He suggested that “to the extent that a private entity receives state funds and therefore becomes a government enterprise, a RFRA cannot allow it to practice any kind of discrimination. That is because government has to be neutral as between religions; a public entity by its nature cannot claim a RFRA right to discriminate.” Similarly, he expressed great skepticism about the typical likelihood of success of a religious-freedom claim to use marijuana, sending me a recent Vox article:
But just like religious freedom laws have been around for decades, so have long-shot attempts to smoke marijuana by claiming religious beliefs. A 2013 look at these cases by Montana lawyer John Rhodes, published in the Oklahoma City University Law Review, found that these claims have almost always failed, except in situations involving Rastafarians, a religious group that considers marijuana a sacrament.
Defendants claimed they used marijuana for religious purposes, but judges by and large didn’t buy it. One court told a defendant that his “professed beliefs have an ad hoc quality that neatly justif[ies] his desire to smoke marijuana.” Other courts weren’t as blunt, but they generally discarded non-Rastafarian religious beliefs as phony, according to Rhodes.
When it came to Rastafarian defendants, courts only allowed their marijuana use in limited settings. Judges found the government had a compelling interest to restrict pot in public settings, and they didn’t allow criminal operations that sell the drug.
Based on these precedents, it’s very unlikely that members of Indiana’s First Church of Cannabis will have any luck trying to use marijuana under their new religion.
Ultimately, however, Hutchinson’s qualms seem to have been mollified by the final version of RFRA that passed into law, although the differences between competing versions of the legislation don’t seem all that significant to me. Looking at the legislative text (and not at the overheated rhetoric by activists on both sides), the revised RFRA legislation passed by the legislature accomplished, in large part, the same goals as HB 1228. I congratulate Gov. Hutchinson for his success in producing a RFRA statute that received bipartisan support, but I am less confident that Sen. Hutchinson’s temporary heartburn over RFRA had any justification that was grounded in law. And I certainly do not think it is a strong argument to suggest that passage of a RFRA might change the arguments that lawyers make in court — after all, any law might do that — while avoiding the more pertinent question of how it might change a court ruling or verdict.