Tuesday, March 3, 2015
Last week, the Arkansas legislature prohibited local governments in that State from exceeding State law anti-discrimination protections—including protections against employment discrimination. The legislation—Act No. 137, or the “Intrastate Commerce Improvement Act”—amended title 14 of the Arkansas Code:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
Ark. Code § 14-1-403. In so doing, Arkansas joined Tennessee, which in 2011 enacted very similar legislation—the “Equal Access to Intrastate Commerce Act”—soon after Nashville passed an ordinance to add “gender identity” and “sexual orientation” to the classes covered under equal employment opportunity provisions applicable to government contractors. Bills similar to the Arkansas and Tennessee legislation have been introduced in the Texas and West Virginia legislatures. (For more on local-preemption statutes in general, see here.)
The Arkansas legislation is the latest move in a story that began in August 2014. That’s when, after ten hours of public debate, the City Council of the City of Fayetteville passed Chapter 119, an anti-discrimination ordinance that prohibited employers, landlords, and others from discriminating against anyone based on, among other characteristics, their sexual orientation or gender identity—protections not currently available under Arkansas state law. Once it passed, ordinance opponents began collecting signatures to seek repeal, with backing from the local Chamber of Commerce and others. That effort succeeded: In a December 2014 special election, a majority of Fayetteville residents voted in favor of repeal. Soon after, the Fayetteville City Council and its City Attorney began working on a new version of Chapter 119.
But on February 2, 2015, State Senator Bart Hester (R) introduced the bill that eventually became Act 137. On its face, Act 137 purports to “improve intrastate commerce” by making anti-discrimination law “uniform” for employers, businesses, and organizations in the State. Yet, in advocating for Act 137, Sen. Hester had suggested that Fayetteville’s ordinance jeopardized “basic rights of religious freedom.” In a December television debate about Chapter 119 before its repeal, Hester argued that Fayetteville’s ordinance would force pastors to perform same-sex marriages and would give “an adult man – 30, 40, 50 years old – the right to share a bathroom with a six-year-old little girl, the right to share the changing room with women at the local gym. It’s not right. We need to protect our children.”
Meanwhile, a few months ago in Tennessee, the Tennessee Court of Appeals affirmed the dismissal of an Equal Protection Clause challenge to Tennessee’s statute on the ground that no plaintiff had shown a distinct, palpable injury in-fact sufficient to confer standing. Howe v. Haslam, No. M2013–01790–COA–R3–CV (Tenn. Ct. App., Nov. 4, 2014). In so doing, the court distinguished Romer v. Evans, 517 U.S. 620 (1996). The reasoning: Whereas the law challenged in Romer “rendered all LGBT advocacy in Colorado futile at every level and within every branch of state government” and “barred a class of persons from equal participation in the political process,” the Tennessee statute “erects no such barrier.”