The Republican campaign against gay rights continued last week, when Arkansas legislators passed a bill barring local governments from protecting gay people against discrimination.
It’s called the “Intrastate Commerce Improvement Act,” and it’s written in the key of dog-whistle. The bill contends that, in order for the state to attract businesses, each of its cities and counties must follow the same rules about who they permit discrimination against.
Practically speaking, the bill would prevent any city or county from extending civil rights protections to gay people—as the town of Fayetteville, Ark. tried to do last year. Residents there scrapped the law through a ballot initiative in December. But that same day, State Sen. Bart Hester (R ) tweeted out that regardless of how the vote turned out, “the AR legislature will pass legislation to repeal this type of ordinance. I suspect with a super majority.”
Hester’s bill, SB 202, has now been submitted to Arkansas Gov. Asa Hutchinson (R). The governor issued a statement on Friday saying that he will let the bill pass, but he won’t sign it, on the principle that he is “concerned about the loss of local control.”
Right now in Arkansas, as in most states, it is completely legal to fire someone for being gay; to kick someone out of a store for being gay; to evict someone for being gay. Though statewide anti-discrimination laws are uncommon, many cities in red states such as Austin, Atlanta, and New Orleans, have enacted their own ordinances to protect gay people from discrimination.
There is some question about whether the Arkansas legislation is even constitutional. Rep. Clarke Tucker (D ) argued on the House floor on Friday that SB 202 violates the Equal Protection Clause.
Tucker pointed out that a similar law in Colorado was struck down for that reason by the Supreme Court in 1996. The Colorado law specifically prohibited gay people from receiving any legal protection from discrimination. In its decision, the Supreme Court said that the law “cannot be said to be directed to an identifiable legitimate purpose or discrete objective.” Furthermore, it also said that the Colorado law “raises the inevitable inference that it is born of animosity toward the class that it affects.”
Unlike the Colorado law, SB 202 does not mention gay people. It also offers a specific reason to limit anti-discrimination laws, namely that businesses would benefit from “uniformity of law.” It is debatable whether these modifications will allow this law to pass constitutional muster. Tucker didn’t think so.
“The language is different in our bill but ultimately the issue is the same,” he said to his fellow legislators on Friday.
Tennessee passed a very similar law in 2011, “the Equal Access to Intrastate Commerce Act,” which also strategically omitted mentioning gay people. A suit challenging the law was dismissed on a technicality involving whether the plaintiffs, including a former soccer coach for Belmont University, had standing.
The Arkansas Times reported on Saturday that Little Rock officials were thinking about passing a gay civil rights ordinance anyway, which could form the basis of a lawsuit once SB 202 becomes law and makes such ordinances illegal.