Monday was the deadline for Arkansas Gov. Asa Hutchinson to veto SB 202, the anti-anti-discrimination bill that seeks to prevent cities and counties from protecting the civil rights of gay people.
The bill passed the legislature 10 days ago. Hutchinson said he would allow it to become law. During the past week, pressure had been mounting on the governor to change his mind.
Five days ago, the Arkansas chapter of the Human Rights Campaign released a statement condemning the bill. “Discrimination is not an Arkansas value, and the Governor should take swift, immediate action to veto SB202,” said chapter director Kendra R. Johnson.
On Saturday, national groups like the American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights joined in asking Hutchinson to veto it.
“There is nothing but discriminatory intent here,” the groups’ press release reads. “And no valid public interest can possibly be served by allowing private businesses to discriminate based on sexual orientation, gender identity or other characteristics that might be covered by local ordinances.”
Finally on Sunday night, musician and gay icon Cher weighed in on the bill, accusing the governor of “hanging the LBGT community out to dry”:
Why am I not surprised That Asa Hutchinson, Gov of Arkansas,is hanging LBGT community out to dry⁉️
— Cher (@cher) February 22, 2015
But none of that, not even the voice of Cher, could change the governor’s mind. Today, he allowed it to become law, albeit in a backdoor manner.
Hutchinson had said earlier this month that he harbors reservations about the bill, so he has let it pass without his signature. The law will go into effect 90 days after the legislative session ends later this summer.
Where were the national voices?
Several activists blamed the absence of national politicians or corporations speaking out against SB 202. Neither Bill nor Hillary Clinton, even with their Arkansas ties, have issued public statements about it. Until today, neither had some of the state’s largest employers, like Wal-Mart, Tyson Foods, and J.B. Hunt, a trucking company.
“What we haven’t heard from are businesses inside the state, though some of those businesses are very supportive of LGBTQ grassroots organizations,” said Laura Phillips, an activist based in Fayetteville.
“It’s like that saying,” she continued, invoking a Martin Luther King Jr. quote, “that the silence of your friends is worse than the voices of your enemies. The silence from the business side has just been deafening, and that’s the most terrifying part.”
In an e-mail Monday, a Tyson spokesperson said that the company does not comment publicly on pending legislation. He added that the company already has a gay non-discrimination policy.
Wal-Mart eventually came out against SB 202 late Monday night, after business hours. The company was founded in Arkansas and is headquartered in Bentonville. It also has a 90 out of 100 score on the Human Rights Campaign’s Corporate Equality Index, which is supposed to reflect its equitable treatment of its LGBT employees.
Earlier on Monday, the gay outreach arm of the United Food and Commercial Workers International Union sent a letter to the HRC asking it to suspend Wal-Mart’s rating.
“We don’t feel that 90 is an accurate score for Wal-Mart,” said Tim Schlittner, a spokesperson for UFCW OUTreach on Monday afternoon. “If they truly supported equality they would have spoken out against this bogus bill in their backyard.”
On Monday evening, upon hearing of Wal-Mart’s last-minute announcement, Schlittner sent this statement: “This meaningless gesture is a day late and a dollar short.”
In Arizona last year, a similar anti-gay measure was vetoed by Gov. Jan Brewer after complaints from dozens of high-profile politicians and corporations. Delta Airlines, Mitt Romney, PetSmart, John McCain, and Apple were just some of the strange bedfellows who joined in asking Brewer to stop the bill, which would have allowed, for instance, businesses to refuse to serve gay people.
In Arkansas, where there has been less national attention, the fight against SB 202 exposed some of the fault lines in the gay community.
One of the early voices calling for a veto was an activist in Brooklyn named Scott Wooledge, who quickly put up a protest Web site after SB 202 passed the legislature—days before the HRC’s own statement last Wednesday calling for a veto. (The HRC’s Arkansas chapter had previously spoken out against SB 202 in early February when it had been introduced.)
“It was a labor of love,” said Wooledge, who also worked to rally attention around the Arizona bill last year. Compared to the Arizona effort, the Arkansas fight was unusually quiet, Wooledge said. “For some reason, many LGBT organizations have been slow to respond on state level fights,” he explained. “Mostly I stepped up because I felt like there was not going to be a national response.”
On Friday, Michelangelo Signorile at the Huffington Post accused the Human Rights Campaign of not campaigning hard enough in the state, and for not putting enough pressure on corporations to speak up against the bill. He questioned the HRC’s connections with Republican donors.
Signorile was directing much of his criticism at HRC president Chad Griffin, who hails from Arkansas. “Whatever the reasons, many LGBT national leaders are nowhere on this terrible and potentially enormously impactful law,” Signorile wrote on Friday morning. (Griffin eventually released a statement to the Arkansas Times in a blog post dated Friday afternoon.)
Johnson, the group’s Arkansas director, said in an e-mail statement Monday night that the local chapter “fought to defeat S.B. 202 since the day it was introduced.”
“Unfortunately, large new conservative majorities in both houses of the state legislature pushed the legislation through quickly,” she said.
Tentative next steps
WIth SB 202 looking like an inevitability, Arkansas’s gay activists are talking about several options. One would be to petition for a popular referendum. Putting the law on the ballot would require the signatures of at least 6 percent of registered Arkansas voters.
Another tactic would be to challenge the law in court, which may prove tricky.
A specific part of the Constitution—the Equal Protection Clause in the 14th Amendment—says that states must not deprive any person “the equal protection of the laws.” The courts have interpreted this to mean that the government cannot discriminate against people, at least without good reason. How compelling this reason must be depends on the context. It’s a matter of much legal debate.
Twenty years ago in Romer v. Evans, the Supreme Court used to Equal Protection Clause to strike down a law in Colorado that specifically prohibited gay people from receiving protection against discrimination. The Court ruled that Colorado was targeting a minority group for no good reason. “[The law] seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests,” the decision reads.
To wriggle around this legal precedent, SB 202 distinguishes itself from Colorado’s law in two ways. First, SB 202 carefully avoids mentioning gay people at all. Instead, it says that Arkansas’s cities and counties cannot exceed state law in protecting people from discrimination. Since Arkansas permits gay discrimination, the state’s conservative lawmakers have effectively required its more liberal cities to permit gay discrimination as well.
Second, SB 202 offers a concrete reason for its existence. It claims to make life easier for businesses operating in the state by making discrimination laws the same everywhere. “The purpose of this [bill] is to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations,” the legislation reads.
Whether the courts think this reason is good enough remains to be seen. Tennessee passed a very similar law a couple years ago, which gay groups challenged in court with an Equal Protection Clause argument. They claimed that despite its vague language, Tennessee’s law was clearly written to curtail the rights of gay people. The courts threw the case out on a technicality, so that argument was never tested.
Both a referendum and a court challenge will take time. For now, the law has already affected the state’s reputation. Phillips, the Fayetteville activist, worries that SB 202 will drive young gay people out of the state.
“I spoke to a campus pride group last week” she said. “They’re a bunch of very intelligent, very bright students. They’re the future of Arkansas. And they’re being told that they’re not welcome here. That’s the message this is sending.”
Update: An HRC spokesperson notes that the HRC’s Arkansas chapter was on record against SB 202 since it was introduced into the Arkansas legislature in early February.