In some states, florists and wedding cake bakers have faced legal complaints or lawsuits for declining to serve same-sex weddings on religious grounds.
However, Bentley also suggested Issue 3’s wording confused voters.
“Lawyers had said that we needed that exact language to make sure that we were protected,” she told the NBC affiliate KARK News. Bentley added that strong conservatives might have seen the ballot language allowing government burdens in exceptional cases “as an infringement instead of a protection.”
Foes of Issue 3 included the American Civil Liberties Union of Arkansas, which contended it would be a “radical change” that would allow individuals to challenge almost any state law.
“Religious freedom is a fundamental right, but it’s not an excuse to target, harm, or discriminate against people,” the group said in April 2021 as the legislature prepared to place the proposal on the ballot.
The legal group also warned of corporations’ hostility to similar religious freedom bills.
“Similar laws in Indiana and Arizona led to widespread boycotts, costing states millions in revenue,” the legal group said.
Cox said the assumption that religious freedom is already protected isn’t necessarily true.
“The courts are much more inclined toward letting the government burden the free exercise of religion in many cases,” he told CNA. “If all you have to go on is the First Amendment or the Arkansas Constitution, then you might think that you have some really good protections. But when you look at how courts interpret that language, they just don’t interpret it the way that most of us would.”
Cox said that in recent decades U.S. Supreme Court precedents have shown a “real weakness” in protecting the free exercise of religion. This means that the government can burden the free exercise of religion “even when it does not have a compelling interest at stake” or when there may be “a less restrictive way that the government could operate.”
“That was a major shift,” he said. Before the 1990s, “courts had shown a lot of deference to religious liberty, and they had interpreted the First Amendment the way that most of us would: that you and I have a right to freely exercise our religion.”
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Though the state legislature has already passed a statutory religious freedom restoration act, Cox said that any future legislature could repeal or amend the law and weaken or remove protections.
About 21 states have passed religious freedom restoration acts, the pro-religious freedom legal group Becket says on its website.
As CNA has previously reported, wealthy foundations have poured millions of dollars into legal groups, advocacy groups, and other nonprofits to limit religious freedom protections that conflict with abortion advocacy and LGBT causes. Last year the American Civil Liberties Union received a $15 million donation from billionaire heir and Arcus Foundation founder Jon Stryker, whose LGBT activism includes efforts to limit religious freedom.