Why is the "Arkansas Religious Freedom Amendment" failing?

LITTLE ROCK, Ark. — The closest vote on every ballot Tuesday night was for Issue 3. The constitutional change to create the “Arkansas Religious Freedom Amendment” is failing as of Wednesday night with 96% of the vote counted.

The split shows 49.56% of people were for it while 50.44% percent were against it. What made the vote so close? Reporter Neale Zeringue spoke with people on opposite sides of this vote, and they agreed on one thing. The way the issue was written confused people and that’s likely what prevented it from looking like many other results on the ballot.

Down the line of Arkansas’ election results, party lines held strong. Almost two-thirds Republican and one-third Democrat was a consistent split for statewide offices. It mirrored how Issue 3, the “Arkansas Religious Freedom Amendment”, was passed in the state legislature with all but one Republican in favor and all but one Democrat opposed.

But when the decision was up to the people, what looked like a Republican favorite is failing to pass by less than one percentage point.

“It’s almost it’s almost harder when it’s real close than when it’s a big difference,” stated State Representative for District 54 Mary Bentley. Bentley, a Republican, strongly advocated for the amendment but thinks its wording kept it from passing.

On the ballot, Issue 3 read it would “provide that government may never burden a person’s freedom of religion except in the rare circumstance that the government demonstrates that application of the burden to the person is in furtherance of a compelling government interest.”

Andrew Cole like most Arkansans voted against the “Religious Freedom Amendment.”

“The way it was written I think was odd and confusing,” Cole said. “My first reaction was don’t we already have this.”

Cole feared because the protections are already in federal and state law, the constitutional amendment must be hiding something.

“What are they trying to pull over on us?”, Coke asked.

According to Bentley, putting the amendment in the Constitution was a safeguard. If passed, Issue 4 would prevent later lawmakers from changing it.

 As for the language, Representative Bentley said, “Lawyers had said that we needed that exact language to make sure that we had there to make sure that we were protected, but they (strong conservatives) saw it as an infringement instead of a protection.”

Bentley cited an instance in the Supreme Court where a business owner wanted to not participate in baking a cake for non-traditional marriages as an example of the type of comfort, she wanted the amendment to provide to religious people.

The American Civil Liberties Union of Arkansas executive director, Holly Dickson issued a statement in response to the Arkansas midterm elections. In regard to Issue 3, the ACLU said:

“Arkansans sent a clear message against the extreme intrusion of politicians in our civil rights and rejected many politicians’ knee-jerk reactions to complex problems.  With some votes remaining to be reported, it appears that Arkansas voters prevented Issue 3, what would have been among the most extreme religious freedom amendments, from becoming law…We, the people, showed up for the elections and the ACLU of Arkansas will continue working with and for our fellow Arkansans to protect the civil rights and liberties of everyone in our state.”

The Family Council is a political action committee that advocated for Issue 3. Assistant Director David Cox said:

“This vote is not a referendum on religious liberty in Arkansas. There was a lot of confusion about Issue 3, specifically.

Issue 3 would have restored protections for religious liberty under the Arkansas Constitution. Over the years, courts have allowed the government to burden the free exercise of religion when it did not have a compelling interest at stake and when the government could be less restrictive toward religious liberty. Issue 3 would have fixed that.

Unfortunately, this is a complicated issue. Many voters don’t realize how weak our protections for religious freedom have become. I believe that likely is part of the reason Issue 3 narrowly failed.”

In Bentley’s words, “Strong conservatives in the state just mistrusted that language, and those are the ones we counted on to bring it over, and it didn’t happen.”

Bentley added coronavirus restrictions fresh in the minds of many also didn’t help. She doesn’t plan to bring the amendment back any time soon. Instead, she will focus on other things such as education and the state budget.