It may not be a religious freedom measure, but critics warn that Arkansas’ SB 202 will have the same effect: crippling the rights of LGBT people.
Approved 11 days ago by the Republican-controlled Arkansas legislature, SB 202 – otherwise known as the Intrastate Commerce Improvement Act – will bar cities and counties from passing nondiscrimination laws that are more expansive than the state’s. Monday’s veto deadline came and went without any action from Arkansas’ Republican Gov. Asa Hutchinson, clearing the way for SB202 to become law by this summer.
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Proponents insist the measure is intended to create uniform nondiscrimination protections throughout the state, thus reducing the burden businesses face by having to navigate a patchwork of ordinances that bar discrimination against different sets of people. The problem, critics stress, is that Arkansas – like most states in the country – does not bar discrimination on the basis of sexual orientation or gender identity, making such local protections incredibly valuable for LGBT residents.
In other words, by forcing cities and counties to match the state in terms of its nondiscrimination protections, legislation like SB 202 effectively eliminates a crucial safety net that the LGBT community has worked to build and come to rely on in deeply conservative states.
“I think that this is part of an effort to gut protections against discrimination for LGBT people,” Leslie Cooper, senior staff attorney at the American Civil Liberties Union, told msnbc. “This is a tactic we’re now seeing, absolutely.”
In addition to Arkansas, Tennessee is the only other state that restricts municipal nondiscrimination ordinances to the bounds of the state. But LGBT advocates fear more could be on the way. Earlier this year, Republican state Sen. Don Huffines introduced a similar proposal in Texas that would effectively nullify local nondiscrimination ordinances in Houston, Fort Worth, Austin, and San Antonio. And on Monday – the same day that Gov. Hutchinson passed on his last chance to veto SB 202 – lawmakers introduced a copycat bill in West Virginia.
“It’s definitely something I think we need to be concerned about and to be looking for as cities across the country have responded to the LGBT equality movement by passing nondiscrimination ordinances,” said Cathryn Oakley, legislative counsel for state and municipal advocacy at the Human Rights Campaign, to msnbc. “I think this is another area in which people are likely going to push back against LGBT equality wherever they can.”
Though less than a handful of states are so far on track to pass such legislation this session, these bills are part of what many view as a broader effort at the state level to weaken the advancements that LGBT equality has made. In nearly two dozen states, lawmakers are pushing forward so-called “religious freedom” measures that, if passed, could make it easier for individuals, businesses, and in some cases, government employees, to discriminate against LGBT people on religious grounds.
It’s the second year in a row that a wave of religious freedom proposals has swept the country, spurred in large part by the rapid advancement of marriage equality. Last year, the movement came to an abrupt stop when Arizona’s Republican Gov. Jan Brewer buckled under enormous pressure from businesses to veto a religious freedom measure that passed her state’s legislature. But this year, the backlash to SB 202 was considerably softer.
“The justification that was offered by its sponsors was that it would be better for intrastate commerce,” said Oakley of SB 202. “It does not on its face look like an anti-LGBT law, even though it is, of course, in its effect, and is absolutely propelled by animus. It was just presented in a very different way, so folks didn’t necessarily recognize it for what it was right off the bat.”
That’s not to say that there wasn’t any backlash in the wake of SB 202’s passage. In the last few days, the American Civil Liberties Union, Human Rights Campaign, Lambda Legal, and the National Center for Lesbian Rights called on Hutchinson to veto the bill. Cher also weighed in on Twitter, accusing Hutchinson of “hanging the LGBT community out to dry.” And late Monday, Wal-Mart, which is headquartered in Arkansas, officially came out against SB 202. The biggest political names to come out of the state, however – Bill and Hillary Clinton – were silent on the issue.
LGBT advocates are hoping the national outcry will grow should more states pursue this type of legislation, especially given the fact that it doesn’t serve the business community as it purports to. A vast majority of Fortune 500 corporations already prohibit discrimination based on sexual orientation and gender identity, pointed out Oakley, and research shows that most small business owners favor nondiscrimination laws. Additionally, added Oakley, this type of legislation constitutes a “huge invasion of local control” – something that the Republican Party is supposedly against.
Another potential thorn in the side of SB 202: the U.S. Constitution. In 1996, the Supreme Court ruled in the landmark gay rights case, Romer v. Evans, that Colorado did not have a good enough reason for prohibiting gay people from receiving protection against discrimination. Based off that precedent, LGBT advocates are confident SB 202 and related measures wouldn’t hold up in federal court.
“The Supreme Court has made clear that laws aimed at discriminating against LGBT people are unconstitutional,” said Cooper. “And that’s what this is.”