Arkansas Passes Anti-Gay Law That Will Last Literally Days

The Arkansas legislature passed SB 202 a couple weeks ago and Gov. Asa Hutchinson, lacking the courage to either sign it or veto it, let it become law without his signature after ten days. That law forbids all municipalities in the state from passing any law that protects LGBT people from discrimination.

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.”

All of this is true but mostly irrelevant. Once a municipality files suit challenging this law, a federal district court will issue a preliminary injunction immediately. Why? Because the Supreme Court already ruled on a virtually identical law in Colorado in a case called Romer v Evans, a 1996 case in which Justice Kennedy wrote the majority opinion. This law will never actually be enforced.

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  • D. C. Sessions

    This law will never actually be enforced.

    Everybody wins! The municipalities get to pass the antidiscrimination statutes, people get protections against discrimination, and the wingers get to rant (and run) against “unelected activist tyrants in black robes.”

  • Michael Heath

    One of countless examples of conservative hypocrisy, especially southern conservatives. Here that’d be the “tyranny” at the state level against a level of government closer to “the people. I.e., municipal governments who are attempting to legislate the will of the majority.

  • dugglebogey

    What a gutless turd.

  • hunter

    Actually, Romer v. Evans was somewhat different, in that Amendment 2 singled out same-sex orientation for disfavored status, and precluded that class, according to the majority Supreme Court opinion, from protection under any anti-discrimination law and foreclosed any attempt to gain protection.

    The Arkansas law is more vague, as I understand it, forbidding local jurisdictions from passing any anti-discrimination law that includes groups not covered under state law. The effect, however, is pretty much the same, and I’m sure there will be no trouble demonstrating animus as the motivating factor.

  • John Pieret

    Arkansas: Proving it can out-asshole Alabama.

  • llewelly

    They are burning up state funds in order to create a propaganda opportunity.

  • cptdoom

    As hunter notes, I think the focus of the law on “consistency” across the state will shield this law from a Romer decision, although the proposed law in NC to allow magistrates to refuse marriages to those they don’t like probably won’t.

  • John Pieret


    I think the focus of the law on “consistency” across the state will shield this law from a Romer decision

    Don’t be too sure:

    The bill’s sponsor, Republican State Sen. Bart Hester, told BuzzFeed News this week that he sponsored the measure to create consistent policies across Arkansas that will attract business, and because he was infuriated that cities were attempting to expand civil rights laws for LGBT people. …

    As the bill’s sponsor, Hester told BuzzFeed News earlier this week that religious business owners should be allowed to fire employees for being gay. …

    The city council of Fayetteville, Arkansas, passed an LGBT antidiscrimination bill last summer that voters narrowly repealed in December. When politicians there suggested reintroducing the law, Hester, who supported the repeal campaign, introduced his bill to override Fayetteville and other jurisdictions that attempt to pass similar laws.

    The problem always is, though they know they have to give some sort of reason that the law might be constitutional, they also have to signal their constituents just what they are doing.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden


    14-1-403. Prohibited conduct.

    (a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

    (b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.

    This really isn’t comparable to Amendment 2 in Colorado.

    This is almost directly comparable to HB 3500 of the Oregon legislature’s 1993 session:

    Relating to civil rights; and declaring an emergency.

    Be It Enacted by the People of the State of Oregon:

    Section 1. (1) A political subdivision of the state may not enact or

    enforce any charter provision, ordinace, resolution or policy granting

    special rights, privileges or treatment to any citizen or group of

    citizens on account of sexual orientation, or enact or enforce any

    charter provision, ordinance, resolution or policy that singles out

    citizens or groups of citizens on account of sexual orientation.

    You’ll note that MSNBC has up that this is a “new” tactic.

    Well, sort of. It’s not new, given the action by Oregon, but in Oregon it was an action that had some support from both right and left – representatives and senators wanted to reduce “acrimony”. As a tool specifically by the right only, not as a tool to shut down general debate, but specifically as a tool to shut down liberal/progressive voices in local governments, it’s new (at least as far as I know – there may be other state initiatives of which I’m unaware).

    You’ll note that the Oregon Court of Appeal affirmation of the constitutionality of the Act was in 1995, after the passage of Amendment 2, but before Romer v Evans was decided. So that precedent couldn’t have been used as the basis of the OCA decision (or even considered in it), but the underlying law is quite different.

    Given that HB3500 (Oregon) and SB202 (Arkansas) are so similar in legislative effect, and that the earlier was unambiguously constitutional, I would be surprised if this was considered an easy question by the courts – animus or no – even were Roy Moore not on the bench.

    In a federal court things are slightly different, but even there, it’s less easy to find animus than in Amendment 2.

    Note that Amendment 2 blocked any action which might reasonably lead to the repeal of Amendment 2. There is no such roadblock to participation in the public process present in SB202 (or its Oregonian predecessor).

    In fact, SB202 is even more conservative than HB3500 in that it bans consideration of new anti-discrimination categories of any time – sexual orientation is not mentioned.

    Me? I think that this is actually upheld by federal district courts, and I’d be surprised if it were struck by the 8th Circuit.

  • dan4

    Romer v. Evans isn’t an “identical law” in that Amendment 2-the law in question in that case-actually singled out gays and lesbians, while the Arkansas bill forbids protections based on sexual orientation in general (I’m not saying I agree with the latter bill-I don’t-I’m just saying there ARE differences between the law two laws).

  • dan4

    @10: When I wrote “the law in question,” I meant the law in question in Romer v. Evans, not the law in the Arkansas bill.