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Issue 3 could solidify religious freedom in the state constitution

We're taking a look at Issue 3 on the ballot and learning that if passed, it would support adding Arkansas Religious Freedom Restoration Act to the AR constitution.

LITTLE ROCK, Ark. — The U.S. Constitution states that there can't be a preferred religion and that the government can't keep people from worshiping how they want.

Though sometimes, it's not cut-and-dried, such as when a government agency says people can't go to a church because of a virus.

Issue 3 would put a limit in the Arkansas constitution's legal language on how the government's rules can impact religion— even if the rules didn't set out to impact religious beliefs.

 Arkansas Family Council is a longtime conservative group that supports the amendment, and their president, Jerry Cox, explained that government cannot burden your free exercise of religion unless they have a compelling reason to do so. 

"Then, if they do that, they have to do it in the least restrictive means possible," added Cox.

For example, the laws that were designed to limit large gatherings during COVID could be deemed unconstitutional because they ended up limiting religious gatherings. Even though the law didn't set out to limit religious gatherings specifically.

According to John DiPippa, dean emeritus of the UA-Little Rock Bowen School of Law, the government would then have to prove that the rule is necessary.

"If the state wants to burden religion in any way, it has to meet the highest level of judicial scrutiny," DiPippa said. "What that means is, it has to have a really important reason. And it has to show that there's no other way to accomplish that reason, except by burdening religion."

Given the First Amendment's religious protections, you would think this specific idea would have already been understood, but for 25 years, there have been efforts to solidify the concept.

Issue 3 was crafted on the federal Religious Freedom Restoration Act, which first tried to clear things up when it passed Congress in 1994.

A few years later, the US Supreme Court limited federal law, and that's when 21 states, including Arkansas, put a RFRA in place to extend it to local situations.

Supporters have said that Issue 3 would take the law that's already in place, and make it a constitutional amendment.

"[It] Guarantees the same religious freedoms that the U.S. Constitution protects," said Cox. "And so we have it in the U.S. Constitution, and if issue three passes, we'll have protections in the state constitution this well."

Why do its supporters think it's necessary?

"It's much much harder to change the Constitution than it is to repeal a statute, said DiPippa. "Putting it in the Constitution makes it more or less permanent."

So, a vote of "yes" would support amending the constitution so that the "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

Meanwhile a vote of "no" would oppose making this a constitutional amendment, but the state law would still be in place.

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