In Arkansas, Freedom of Religion Does Not Mean Freedom From Religion

By Adrienne Griffis

The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .” Similarly, Article 2, Section 24 of the Arkansas Constitution provides that “no human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.” However, despite the requirements of the U.S. Constitution, and even the strong language in the Arkansas Constitution that appears to promote religious freedom, the law in Arkansas does not protect all religions from discrimination.

A recent news article brought my attention to Act 911 of 2017, passed last year, which requires public schools and state agencies to display donated signage stating “In God We Trust.”[1] According to the Arkansas Democrat Gazette, Bentonville School District rejected signs, which appear to technically comply with the statute’s requirements, that were donated by an atheist group. I can’t help but find this situation similar to the Ten Commandments vs. Baphomet monument controversy. It’s concerning (and, to be honest, embarrassing) that our capitol lawn appears to have turned into a religious battleground, and one can only hope that Act 911 does not do the same to public schools.

The enactment of Act 911 is not surprising because even the Arkansas Constitution, which purportedly protects religious freedom, allows discrimination against certain faiths. While Article 2, Section 26 provides that no person shall “be rendered incompetent to be a witness on account of his religious belief,” Article 19 thwarts this alleged protection by stating that “no person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.” As “God” is not defined, this provision could presumably abridge the rights of not only atheists but also Buddhists, Hindus, and others who practice a variety of nontheistic religions. As a practical matter, this provision also offers reluctant witnesses an easy way to get out of testifying. I have never seen this actually happen during a trial, but clearly the potential is there.  

In 1982, two atheists challenged Article 19 in federal court[2]; however, the court found that they did not have standing to bring the lawsuit – since neither plaintiff had been actually denied the ability to hold public office or held incompetent to testify, they had not been injured by the challenged constitutional provision. Therefore, the court did not decide whether or not the provision is unconstitutional. Unless and until someone successfully challenges these laws, they will continue to beg the question of whether free exercise of religion allows a person freedom from any religion.

 

 

[1] Ark. Code Ann. § 1-4-133.

[2] Flora v. White, 692 F.2d 53 (8th Cir. 1982).

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