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Arkansas's real LGBT problem: discrimination is legal even without a religious freedom law

Arkansas Gov. Asa Hutchinson in 2003.
Arkansas Gov. Asa Hutchinson in 2003.
Douglas Graham/CQ-Roll Call Group via Getty Images

Arkansas Gov. Asa Hutchinson on Thursday approved a revised religious freedom law that critics say could allow discrimination against LGBT people. But even without the law, his state already allows individuals and businesses to deny jobs, housing, and service to people based on their sexual orientation and gender identity.

In an unexpected move following pressure from Arkansas-based Walmart, Hutchinson on Wednesday called on state legislators to modify and align the law with the federal Religious Freedom Restoration Act of 1993, instead of Indiana's controversial legislation, before he signed it. Despite the revision, Indiana and Arkansas's laws remain similar: both prohibit government from infringing a person's religious beliefs without a compelling interest.

But while there's a lot of debate about whether these laws make it easier for businesses to discriminate against LGBT people in different states, Arkansas's situation is much clearer. Its measure couldn't possibly make it easier to discriminate against LGBT people — because discrimination is already legal across the state, which doesn't have civil rights laws that would protect LGBT people.

In fact, it's illegal under state law for municipalities to ban discrimination against LGBT people in Arkansas. Earlier this year, the state legislature passed the "Intrastate Commerce Improvement Act," which requires cities and counties' nondiscrimination laws to match state laws. Since Arkansas doesn't include sexual orientation or gender identity in its civil rights laws, the act nullified local LGBT protections that existed at that point and banned future measures. Arkansas legislators claimed the intent was to keep the state's nondiscrimination laws uniform, but the measure seemed to be targeted specifically at preventing places like Fayetteville, Arkansas, from passing ordinances that would have prohibited anti-LGBT discrimination.

So in all of Arkansas, an employer can legally fire someone because he's gay, a landlord can legally evict someone because she's lesbian, and a hotel manager can legally deny service to someone who's transgender. This is all currently legal — no religious objections necessary.

It's the lack of civil rights laws, not religious freedom laws, that enable discrimination

LGBT civil rights protections

Most states, including Arkansas, don't have civil rights laws that legally protect LGBT people from discrimination in the workplace, housing, and public accommodations (hotels, storefronts, and other places that serve the public). Some of these states have local laws that protect against this type of discrimination within municipal borders, but not Arkansas.

So it's not the religious freedom laws that allow discrimination; it's the lack of civil rights laws banning discrimination.

In his announcement on Wednesday, Hutchinson acknowledged changing attitudes when it comes to religious freedom laws, which have been around for decades. "It has divided families, and there is clearly a generational gap on this issue," he said. "My son, Seth, signed the petition asking me — dad, the governor — to veto this bill."

He's right about the generational divide. Pew Research Center surveys show that 62 percent of younger people (ages 18 to 29), compared with 49 percent of all Americans, say businesses shouldn't be allowed to refuse wedding services to same-sex couples on religious grounds.

But if people, especially millennials, really don't want legalized discrimination, the real problem is that Arkansas and as many as 32 other states allow some form of anti-LGBT discrimination, regardless of religious freedom laws.

Watch: How most states still discriminate against LGBT people

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