The Arkansas Supreme Court has ruled that a city can’t enforce its anti-discrimination law as a case challenging it works its way through the courts.
In 2015, Arkansas passed the Interstate Commerce Improvement Act (ICIA), which prohibits cities and counties from passing anti-discrimination laws that protect categories not mentioned in state law. Arkansas doesn’t ban discrimination against LGBTQ people.
But the city of Fayetteville, a college town of over 70,000 people, bans discrimination against LGBTQ people in both government and private employment. Fayetteville and Eureka Springs are the only two cities in the state that ban anti-LGBTQ discrimination.
In 2017, the state supreme court ruled that Fayetteville can’t enforce its ban because of the ICIA.
The city then decided to challenge the constitutionality of the law, and a Washington County judge ruled that they could continue to enforce their ordinance until their challenge is decided.
But the state supreme court overturned the county judge’s decision, ruling that the judge exceeded his jurisdiction.
This doesn’t mean that the ICIA is constitutional. In 1996, the Supreme Court in Romer v. Evans overturned a Colorado ballot initiative that banned cities and counties from passing LGB-inclusive civil rights laws.
In his ruling, Justice Anthony Kennedy wrote, “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
Today, three states have laws banning cities and counties from passing LGBTQ anti-discrimination laws. North Carolina and Tennessee are the other two.
Arkansas’s law, unlike Colorado’s, doesn’t mention LGBTQ people by name. Colorado’s law specifically named people who engage in “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”
Arkansas’s law, though, says that cities and counties can’t protect people who aren’t protected by state law, apparently to preempt arguments that they’re specifically targeting LGBTQ people. Instead, the law is framed as helping businesses with a uniform set of regulations throughout the state.
“Today’s unanimous decisions reaffirm the state’s authority to ensure uniformity of anti-discrimination laws statewide and to prevent businesses from facing a patchwork of nondiscrimination ordinances,” said Republican Attorney General Leslie Rutledge, who is fighting against LGBTQ protections in Fayetteville.
Of course, an astute observer might note that the ICIA is only focused on anti-discrimination ordinances and, outside of that, does absolutely nothing to ensure that counties and cities have the same business regulations.
If the state’s interest is only in making regulations easier for businesses, it’s odd that the state doesn’t care about, for example, cities and counties that have their own sales taxes.
The state could also add sexual orientation and gender identity to its civil rights law, if its only concern is uniformity. According to a 2017 Public Religion Research Institute poll, 64% of people in Arkansas support LGBTQ anti-discrimination laws.