An original legal analysis by New York University College of Global Public Health (NYU GPH), finds an Arkansas law that prohibits local governments from enacting civil rights protections for lesbian, gay, bisexual, transgender, or queer (LGBTQ) individuals to be unconstitutional. The article, published in the December issue of the American Journal of Public Health, provides information in support of evidence-based policymaking in order to prevent the passage of similar laws in other states.
LGBTQ individuals have historically been discriminated against in a variety of ways; this puts them at an increased risk for disparate health outcomes when they reside in states that fail to extend equal protections to them or that actively deprive equal rights to them.
One such law, Arkansas’ Intrastate Commerce Improvement Act of 2015, or Act 137, prohibits local governments from enacting civil rights protections for LGBTQ individuals that are also lacking at the state level.
Act 137 declares that its purpose is to improve intrastate commerce by requiring state uniformity for civil rights laws. However, it withdraws the authority of local governments to provide increased protections to groups of people not mentioned in the state’s civil rights act, which in Arkansas includes race, religion, national origin, gender, and disability – but not sexual orientation or gender identity. Moreover, it is not an evidence-based method to improve commerce.
In an original legal analysis Ms. Jennifer Pomeranz, assistant professor of public health policy and management at NYU GPH, examined the legislative history and context for Act 137. She found that the law was proposed and enacted in response to Fayetteville, Arkansas attempting to pass local civil rights protections for LGBTQ individuals and the Supreme Court’s decisions related to same-sex marriage. Ms. Pomeranz presents two constitutional arguments to challenge Arkansas’ law based on its violation of the Establishment and Equal Protection clauses.
The Establishment Clause prohibits the government from enacting laws respecting an establishment of religion. While Arkansas could argue that Act 137 was enacted for the secular purpose of creating uniformity in the law applicable to businesses throughout the state, this purpose is not reflected in the legislative history. Moreover, even if Arkansas was simply seeking to accommodate religion, Act 137 burdens LGBTQ people and their families to advance the religious beliefs of those accommodated.
Her second argument focuses on the Equal Protection Clause, which says that no state shall deny any person the equal protection of the law. Equal protection challenges usually involve a law that classifies people in a discriminatory manner.
She also found several factors suggesting that Act 137 is in fact discriminating against LGBTQ people. For example, one of the sponsors of Act 137 stated that the law was shaped by an earlier Colorado law – overturned by the Supreme Court in Romer v. Evans in 1996 – that prohibited government protection of people based on sexual orientation. The Arkansas law does not specify that its target is LGBTQ individuals, perhaps in an effort to bypass the Equal Protection Clause and learning from the outcome of Romer v. Evans.
While challenging Arkansas’ Act 137 may prove difficult, given that courts are reluctant to attribute unconstitutional motives to states when they are not explicit, Ms. Pomeranz’s arguments and evidence provided could arm advocates to help them prevent the passage of similar laws in other states.