Arkansas’ Almost Kosher Anti-Gay Law

New bill that forbids cities from protecting LGBT people is carefully crafted to be almost constitutional. Almost.

02.16.15 11:45 AM ET

Social conservatives are losing the moral battle on LGBT equality—but they’re not giving up without a fight.

More specifically, they’re starting to look like cornered animals, lashing out with everything they’ve got. We’ve already seen Alabama Chief Justice Roy Moore pull a Governor Wallace and order probate judges to disobey a federal court order. And last week, Kansas Governor Sam Brownback abruptly stripped LGBT state employees of nondiscrimination protection.

The latest entry in conservative anti-gay desperation? Arkansas, which just banned any city in the Natural State from protecting its LGBT residents from discrimination. (The legislature passed the bill Friday, and Gov. Asa Hutchinson has announced that he will neither veto nor sign the bill, but allow it to become law without his signature.)

That’s right. Not only can you now be fired from your job for being gay, turned away from a hotel because you’re gay, and barred from visiting your sick spouse in the hospital because you’re gay—now, even if the enlightened city of Fayetteville (whose nondiscrimination ordinance sparked the effort) wanted to help you, it can’t.

If Arkansas’ new bill sounds familiar, it’s because it is. Back in 1992, Colorado did something very similar. Outraged that liberal enclaves Aspen and Boulder had passed measures protecting gays from discrimination, the state’s citizens passed Amendment 2, prohibiting any state or municipal agency from protecting gays from discrimination.

You may also remember that this is unconstitutional. In the 1996 case of Romer v. Evans, the Supreme Court held that Amendment 2 was unconstitutional, since there was no basis for it other than animus against gay people.

So how is Arkansas’ effort kosher?

Clever drafting. Its writers well aware that Amendment 2-style actions are unconstitutional, the Arkansas bill cleverly bans local governments from extending civil rights protection to “any class not covered in state law.” Paraphrasing Mayor Quimby here, “That could be any protected class that we don’t like.” Not just homosexuals.

Early media coverage, of course, has not taken the bait. Buzzfeed, for example, reported that “Arkansas Legislature Passes Bill Allowing LGBT Discrimination.” That’s true, of course, but legally, thanks to the clever drafting of the bill, the headline should read “Arkansas Legislature Passes Bill Allowing Discrimination Against Everyone The State Hasn’t Protected.”

See the difference? The first is definitely unconstitutional. The second, though… well, maybe.

The trouble for Arkansas is that there’s now a huge legislative record that shows that, drafting notwithstanding, this bill is about LGBT people. All the statements, pro and con, show that. Opponents of the bill speak in terms of LGBT equality, and in terms of the need to keep Arkansas competitive when it comes to attracting corporations. Supporters try to talk about maintaining “uniformity” in nondiscrimination provisions, but the only examples of non-uniformity are provisions protecting LGBTs.

Courts often look at this kind of evidence. One example, recently cited in an unrelated Arkansas religious freedom case, was the Florida town of Hialeah’s “animal protection” ordinance, which was neutral on its face, but just so happened to ban Santeria-like religious practices, and just so happened to be accompanied by a lot of legislative history about keeping Voodoo out of Hialeah.

Even in Romer itself, the Supreme Court noted various anti-gay statements on the part of Amendment 2’s backers, which comprised some of the evidence that Amendment 2 was motivated by anti-gay animus.

Nor would the case for “uniformity” really fly either. Arkansas, like all states, has all kinds of laws that vary from place to place. Zoning ordinances, terms governing municipal contracts, you name it. In fact, that’s usually what conservatives support: more local control, less meddling from state or federal governments.

Except when they don’t support it, of course.

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(Incidentally, Governor Hutchinson said it’s “the loss of local control” that is behind his weaselly decision to neither veto nor sign the bill.)

So why pass such a law, knowing that it will cost Arkansas hundreds of thousands of dollars to defend it against the inevitable legal challenges and knowing that the state will almost certainly lose?

Like the Brownback Rollback, Arkansas’ “Don’t Save Gays” law is an act of desperation. It plays to the hard right base, and if it’s ultimately a losing battle, that resonates with conservative evangelicals’ martyr complex, and their widely held apocalyptic belief that America is going to hell in a big gay handbasket.

In the long term, this kind of law will not survive. In the short term, it may hurt a handful of gay people, and their allies in Fayetteville who were trying to do the right thing. But in the even shorter term, it enables Arkansas’ Republicans (only three Democrats supported the bill) to say they are doing everything they can to hold back the tide of history. That the effort is futile only makes it seem more valiant.

And if it depletes the state coffers—doubly, in fact, since the municipality of Little Rock is already gearing up to pass an anti-discrimination ordinance so that it can lead the challenge, meaning the taxpayer will pay for both sides of the lawsuit—well, too bad for fiscal conservatives. To make an omelet, you have to break some eggs, even if the omelet will soon be thrown in the trash anyway. Which is precisely where this law belongs.